[Cite as State v. Osborne, 2017-Ohio-785.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                       C.A. No.       15CA010727

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
JAMES OSBORNE                                       COURT OF COMMON PLEAS
                                                    COUNTY OF LORAIN, OHIO
        Appellant                                   CASE No.   07CR074897

                                 DECISION AND JOURNAL ENTRY

Dated: March 6, 2017



        CARR, Presiding Judge.

        {¶1}     Appellant James Osborne appeals the judgment of the Lorain County Court of

Common Pleas. This Court affirms.

                                               I.

        {¶2}     In 2007, Osborne was indicted on one count of pandering obscenity involving a

minor and one count of pandering sexually oriented matter involving a minor. In 2010, Osborne

pleaded guilty to the indictment. The trial court concluded the two offenses were allied and the

State elected to have Osborne sentenced for pandering obscenity involving a minor. Osborne

was sentenced in 2011 to five years of community control, the provisions of which included

several restrictions and requirements, including restrictions related to computer use and

interactions with minors. Osborne was additionally classified as a Tier II sex offender. The

sentencing entry provided that if Osborne violated the terms of his sentence, he would be subject

to an eight year prison sentence.
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       {¶3}    Osborne initially registered his mother’s address as his place of residence.

Shortly thereafter, he began a relationship with Heather Koon and sought to reside with her.

Osborne’s probation officer, David Gaul, informed Osborne that he should check with him or the

sheriff’s office before signing a lease or moving to ensure that the residence was not too close to

a school or other prohibited location. In October 2011, Osborne signed a lease with Ms. Koon

on Blaine Street. Mr. Gaul informed Osborne that he could not stay there due to its proximity to

a school; however, Osborne could visit there. Mr. Gaul had been to Osborne’s mother’s house

on several occasions; however, Osborne was never there at the time and his bedroom always

looked very tidy and not “very lived in.”

       {¶4}    In 2013, Mr. Gaul and the sheriff’s department received anonymous calls

indicating that Osborne was living at the prohibited address on Blaine Street with Ms. Koon. In

September 2013, Mr. Gaul went out to the Blaine Street address with Deputy Deborah Hurlburt

with the Lorain County Sheriff’s Office to try to determine where Osborne was residing. When

they arrived, Mr. Gaul noticed through a window that Osborne appeared to be using a laptop.

Upon entering and speaking with Osborne, Osborne admitted that he was staying at the residence

three to four nights a week and that his mail was delivered there. Mr. Gaul discovered that,

contrary to his restrictions, Osborne had been using the internet and had an iPhone which also

had internet access. Deputy Hurlburt examined the phone and found compromising photos of

young girls. Osborne was thereafter arrested for violating community control. His phone and

the laptop he was using were confiscated. Following an investigation, additional evidence

surfaced that implicated Osborne in the rape of two young girls.

       {¶5}    Osborne waived a probable cause hearing and admitted probable cause existed for

the violations. Following a merits hearing in December 2014, the trial court found Osborne
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violated community control and sentenced him to eight years in prison. Osborne has appealed,

raising two assignments of error for our review, which we will address together.

                                               II.

                                ASSIGNMENT OF ERROR I

       THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW BY
       FAILING TO PROVIDE APPELLANT WITH WRITTEN NOTICE OF THE
       CLAIMED VIOLATIONS OF PROBATION.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW BY
       RENDERING JUDGMENT THAT HE HAD VIOLATED HIS COMMUNITY
       CONTROL SANCTIONS WITHOUT SUFFICIENTLY INFORMING
       APPELLANT OF THE REASONS FOR WHICH HIS PROBATION WAS
       BEING REVOKED, WHILE ALSO PROVIDING AN ADEQUATE RECORD
       FOR REVIEW ON APPEAL.

       {¶6}   Osborne argues in his first assignment of error that he was denied due process

because he never received written notice of the community control violations. Osborne argues in

his second assignment of error that his due process rights were violated when the trial court

failed to sufficiently inform him of the reasons why his community control was being revoked.

       {¶7}   “The court shall not impose a prison term for violation of the conditions of a

community control sanction or revoke probation except after a hearing at which the defendant

shall be present and apprised of the grounds on which action is proposed.” Crim.R. 32.3(A).

“‘[B]ecause community control is the functional equivalent of what was formerly probation, the

same due process protections that applied to probation violations [] apply to community control

violations.’” State v. Phillips, 9th Dist. Lorain No. 14CA010669, 2016-Ohio-1142, ¶ 6, quoting

State v. Walton, 9th Dist. Lorain No. 09CA009588, 2009-Ohio-6703, ¶ 5.

       At the preliminary hearing, a probationer or parolee is entitled to notice of the
       alleged violations of probation or parole, an opportunity to appear and to present
       evidence in his own behalf, a conditional right to confront adverse witnesses, an
                                                  4


       independent decisionmaker, and a written report of the hearing. The final hearing
       is a less summary one because the decision under consideration is the ultimate
       decision to revoke rather than a mere determination of probable cause, but the
       “minimum requirements of due process” include very similar elements:

       “(a) written notice of the claimed violations of (probation or) parole; (b)
       disclosure to the (probationer or) parolee of evidence against him; (c) opportunity
       to be heard in person and to present witnesses and documentary evidence; (d) the
       right to confront and cross-examine adverse witnesses (unless the hearing officer
       specifically finds good cause for not allowing confrontation); (e) a ‘neutral and
       detached’ hearing body such as a traditional parole board, members of which need
       not be judicial officers or lawye[rs]; and (f) a written statement by the factfinders
       as to the evidence relied on and reasons for revoking (probation or) parole.”

(Internal citation omitted.) Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973), quoting Morrisey v.

Brewer, 408 U.S. 471, 489 (1972); see also Phillips at ¶ 6.

       {¶8}    Nonetheless, this Court “has previously rejected such due process arguments

when an offender has attempted to raise them for the first time on appeal.” Phillips, 2016-Ohio-

1142, at ¶ 7, citing State v. Robinson, 9th Dist. Wayne No. 02CA0008, 2003-Ohio-250, ¶ 6-7.

Osborne did not object on these bases below and, thus, has forfeited all but plain error. See

Crim.R. 52(B); Phillips at ¶ 7. However, Osborne failed to argue plain error in his initial brief

on appeal. “While he argued plain error in his reply brief, a party may not raise new * * * issues

for consideration in his reply brief; rather, the reply brief is merely an opportunity to reply to the

brief of the appellee.” (Internal quotations and citations omitted.) State v. Caldwell, 9th Dist.

Summit No. 26306, 2013-Ohio-1417, ¶ 9. As Osborne did not develop a plain error argument in

his initial brief on appeal, and we decline to create one for him, we overrule his first and second

assignments of error on that basis. See id. at ¶ 30.

                                                 III.

       {¶9}    Osborne’s assignments of error are overruled.          The judgment of the Lorain

County Court of Common Pleas is affirmed.
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                                                                                  Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     DONNA J. CARR
                                                     FOR THE COURT


SCHAFER, J.
CANNON, J.
CONCUR.

(Cannon, J., of the Eleventh District Court of Appeals, sitting by assignment.)


APPEARANCES:

BRIAN J. DARLING, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.
