[Cite as State v. Pullen-Morrow, 2012-Ohio-3605.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

STATE OF OHIO                                   :
                                                :     Appellate Case No. 24862
        Plaintiff-Appellee                      :
                                                :     Trial Court No. 2010-CR-3687/2
v.                                              :
                                                :
SHAMARI PULLEN-MORROW                           :     (Criminal Appeal from
                                                :     (Common Pleas Court)
        Defendant-Appellant                     :
                                                :
                                             ...........

                                             OPINION

                             Rendered on the 10th day of August, 2012.

                                             ...........

MATHIAS H. HECK, JR., by JOHNNA M. SHIA, Atty. Reg. #0067685, Montgomery County
Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972,
301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

MICHAEL C. THOMPSON, Atty. Reg. #0041420, Wright-Dunbar Business Village, 5 North
Williams Street, Dayton, Ohio 45402-2843
       Attorney for Defendant-Appellant

                                            .............

FAIN, J.

                {¶ 1} Defendant-appellant           Shamari   Pullen-Morrow   appeals   from   the
                                                                                             2


revocation of community control sanctions, and the imposition of an eighteen-month sentence

for Complicity to Commit Robbery.           Pullen-Morrow contends that her counsel at the

revocation hearing was ineffective for having failed to object to testimony from a probation

officer having no first-hand knowledge of the contents of a “discharge summary” from the

MonDay Program, and to the admission of that document as an exhibit.

               {¶ 2} We conclude that counsel was not ineffective for having failed to

object.    The discharge summary reflected unequivocally that Pullen-Morrow was

unsuccessfully discharged from the MonDay Program. Counsel used the second-hand nature

of the proof in an attempt to persuade the trial court that the State had failed in its burden of

proof. Counsel also used positive facts in the discharge summary in an attempt to persuade

the trial court that Pullen-Morrow was still amenable to community control sanctions. This

was a reasonable hearing strategy.

               {¶ 3} Furthermore, Pullen-Morrow cannot demonstrate, from this record, that

the result of the proceeding would likely have been different had trial counsel interposed

objections. Had Pullen-Morrow objected, and had her objections been sustained, the State

would likely have requested a continuance to bring an employee of the MonDay Program into

court to testify who would have first-hand knowledge of Pullen-Morrow’s discharge from the

program, and the reasons therefor. The trial court may well have exercised its discretion to

allow the continuance, resulting in better evidence of Pullen-Morrow’s unsuccessful discharge

from the program, and her lack of amenability to community control sanctions. Therefore, we

cannot find, from this record, that the result of the proceeding would likely have been different

had her counsel objected to the evidence.
                                                                                       3


               {¶ 4} The judgment of the trial court is Affirmed.



                                I. The Course of Proceedings

               {¶ 5} In January, 2011, Pullen-Morrow pled guilty to one count of Complicity

to Commit Robbery, a felony of the third degree. She was sentenced to community control

sanctions for a period of time not to exceed five years.

               {¶ 6} In June, 2011, after a status conference, the trial court modified the

community control sanctions to include: “A requirement that the defendant successfully

complete the MonDay Program as well as any aftercare recommended.”

               {¶ 7} In September, 2011, Pullen-Morrow was served with a Notice of CCS

Revocation Hearing and Order, in which she was ordered to appear at a hearing and admit or

deny that, after having been ordered to successfully complete the MonDay Program, “you

were unsuccessfully discharged (clinical) on September 13, 2011.”

               {¶ 8} At the revocation hearing, the State called Linda Toops, an intensive

probation officer employed by the Montgomery County Adult Probation Department. Toops

was familiar with the Monday Program. She described it as follows:

               A. The MonDay Program is a correctional program designed to house both

       male and females for a period of up to six months.

               Q. Okay. Is – do you – do people who go there get treatment, do they get

       schooling? What kinds of things does the MonDay Program do for a person?

       A. The program can be very helpful for the people who need to complete certain

things such as their GED. It helps with behavioral modification, although they have – the
                                                                                                      4


       program itself has undergone some changes here recently. It may not be classified exactly as

       a behavioral modification program any longer. But they are there to assist with those types of

       things, in addition to drug and alcohol issues, and other things as well.

              {¶ 9} Toops acknowledged that her knowledge of the MonDay Program was limited:

              Q. Can you give me a little bit more information about the MonDay Program itself?

       Is it divided into phases?

              A. It is.

              Q. Can you tell me about those phases briefly?

              A. I cannot. Actually, I’m not a MonDay expert. I’m not a staff member of the

       MonDay Program, so I don’t feel I’m qualified to describe thoroughly their phases.

              Q.    Okay.    How did – do you know how one progresses through the MonDay

       Program?

              A. Well, I would really rather not speak on that either. Like I said, I’m an intensive

       probation officer. I don’t work for the MonDay Program.

       {¶ 10} Pullen-Morrow’s discharge summary from the MonDay Program was marked as an

exhibit. The State handed Toops the exhibit and told her that “it appears to come from the MonDay

Program from Jennifer Scott.”       To this, Toops responded “Um-hum.”             Her direct examination

continued as follows:

              Q. And what do you recognize that to be?

              A. This appears to be her discharge summary.

              Q. Okay. And can you tell us why the MonDay staff says that she was discharged?

              A. Give me one moment, please.
                                                                                                     5


               Q. Okay.

               A. If that’s okay.

               Q. Sure.

               A. Well, it’s a rather lengthy paragraph. It kind of summarizes some of the reasons

       why she was discharged. Would you like for me to read part of it or –

               Q. Sure.

               A. Okay. It says, “Ms. Pullen-Morrow entered MonDay on June 16, 2011, and was

       clinically unsuccessfully discharged on September 13, 2011, staying a total of 90 days. This

       was a clinical discharge due to Ms. Pullen-Morrow’s lack of motivation and noncompliance

       with the rules and programming.”

               Q. Okay. So, they list lack of motivation and lack of compliance with rules and

       programming; is that –

               A. Yes, that’s correct.

       {¶ 11} On cross-examination, Toops was asked: “So, the MonDay Program basically

submitted this report and you go off the report itself,” to which she responded, “That’s correct.”

       {¶ 12} Toops did testify on cross-examination concerning one conversation she had with

Pullen-Morrow after Pullen-Morrow’s discharge from the MonDay Program:

               Q. Did you have a chance at any – at any time, and please be specific when you

       answer the question, of talking to Shamari [Pullen-Morrow] about her MonDay Program

       interactions at all?

               A. I did.

               Q. Okay. When was the first time you did that?
                                                                                            6


       A. Once she was discharged from the program and a jail visit was conducted with

Ms. Pullen.

       Q. Do you recall what month that was?

       A. It would have been after her discharge, so, she was discharged on September 19th.

       Q. Okay. And what – what kind of conversation did you have with Ms. Pullen?

       A. I’m sorry. She was discharged on September 13th, so it was shortly thereafter.

               We had a conversation at the Montgomery County Jail as to, you know, why

she got kicked out of the program.

       Q. Was she upset? Wasn’t she upset that she was kicked out?

       A. I wouldn’t say she was upset that she got kicked out.

       Q. All right.

       A. She was upset, I think, at the fear of possibly going to prison for five years.

       Q. And so, she went into the MonDay Program June 16, 2011, was unsuccessfully

discharged on September 13, 2011, so she spent about 90 days in there?

       A. Yes.

       Q.     While she was in there, do you have any knowledge of the things she had

accomplished in the MonDay Program?

       A. Just what would be in the – listed in the MonDay report. It was my understanding

she made very little progress and, in fact, she never really got beyond what’s called the

orientation phase.

       Q. Did you discuss with her any of her accomplishments other than what’s listed in

the report?
                                                                                         7


       A. We had a brief conversation about some of the assignments that she stated that she

did complete while she was in there.

       Q. Do you recall any of those?

       A. No, not specifics.

       Q. Okay. So, if I mentioned something like she was working on her GED, and

employment readiness class, do you have any idea what I’m talking about?

       A. She did indicate that she was working on her GED.

       Q. Okay. What – does the employment readiness class ring a bell?

       A. No.

       Q. Okay. Did she mention to you about how she wrote an autobiography as part of

her treatment?

       A. No. She did not mention that, no.

       Q. Did she mention that, according to Ms. Pullen, that there’s community service

options available in the MonDay Program that she took advantage of?

       A. I can’t recall. It seems like we did possibly discuss whether or not she had

completed any community service in there, but I can’t recall any specifics.

       Q. Do you re- – do you have any knowledge about whether Shamari interacted with

staff well or not well?

       A. Just from what I’ve been told by the MonDay staff and from what Ms. Pullen

shared with me.

       Q. What did Ms. Pullen share with you?

       A. She admitted that she was a mean girl at times, because the other mean girls in the
                                                                                               8


       program rubbed off on her.

              Q. But that was at times? That wasn’t all the time?

              A. That was her des- – her describing her own self. At times, she did display sort of

       an attitude towards various staff and she attributed that due to the other mean girls in the

       program rubbing off on her.

       {¶ 13} Toops testified concerning the MonDay Program discharge summary without

objection. The discharge summary was admitted in evidence without objection.

       {¶ 14} At the conclusion of the hearing, the trial court indicated that Pullen-Morrow’s

unsuccessful discharge from the MonDay Program was the only rule violation the court would

consider. (It was the only violation of which Pullen-Morrow had notice prior to the hearing.) The

trial court did indicate that it would consider other evidence on the issue of Pullen-Morrow’s

continued amenability to community control sanctions. The trial court found that Pullen-Morrow

had violated the terms of her community control sanctions, and that Pullen-Morrow was no longer

amenable to community control.       The trial court revoked community control, and sentenced

Pullen-Morrow to eighteen months in prison.

              {¶ 15} From the revocation of her community control sanctions and her sentence of

       imprisonment, Pullen-Morrow appeals.



           II. Trial Counsel’s Failure to Object to the Testimony of Toops Concerning the

       MonDay Program Discharge Summary and to the Admission of the Discharge Summary

                  in Evidence Does Not Constitute Ineffective Assistance of Counsel

              {¶ 16} Pullen-Morrow’s sole assignment of error is as follows: “APPELLANT’S
                                                                                            9


COUNSEL WAS INEFFECTIVE IN NOT OBJECTING TO A VIOLATION OF HER

RIGHT TO CONFRONT AN ADVERSE WITNESS IN A COMMUNITY CONTROL

REVOCATION HEARING; MOREOVER, THIS FAILURE CONSTITUTES PLAIN

ERROR.”

          {¶ 17} A claim of ineffective assistance of trial counsel requires both a showing that

trial counsel’s representation fell below an objective standard of reasonableness, and that the

defendant was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). A reviewing court “must indulge in a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.” Id., 466

U.S. 689. The prejudice prong requires a finding that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been different,

with a reasonable probability being “a probability sufficient to undermine confidence in the

outcome.” Id., 466 U.S. 694. See also State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989).

          {¶ 18} Pullen-Morrow argues that because the admission of the evidence implicates

her Sixth Amendment right to confront the witnesses against her, we would have to find the

error harmless beyond reasonable doubt.         But this would apply if the error had been

preserved. It was not. Because the issue arises under a claim of plain error or ineffective

assistance of counsel, the State need not show that the unpreserved error was harmless beyond

reasonable doubt.

          {¶ 19} In the case before us, the basis for the community control revocation was that

Pullen-Morrow had not successfully completed the MonDay Program, which was required by
                                                                                            10


the terms of her community control sanctions.         There was a report from the MonDay

Program, in the form of Pullen-Morrow’s discharge summary, that expressly stated that

Pullen-Morrow had been discharged from the program for unsatisfactory performance. This

was the hand dealt to Pullen-Morrow’s trial counsel, and it was a difficult hand to play.

       {¶ 20} Pullen-Morrow’s trial counsel chose not to object to the second-hand nature of

the evidence, consisting as it did of the testimony of Toops concerning the discharge

summary.    Instead, he argued that the evidence was too weak to support the necessary

finding, and also used the report to establish some points in Pullen-Morrow’s favor:

               Thank you, Your Honor. I think the State’s failed to meet its burden today to

       revoke Shamari on these – on these issues. I think the MonDay Pro – having her

       clinician or somebody from the MonDay Program would have been more helpful to

       gain perspective on Shamari whether or not – or how she conducted herself during the

       program. For instance, Ms. Toops, not for lack of effort or work ethic, she just can’t

       speak to how the MonDay Program treated Shamari or how she interacted with it.

       She wasn’t sure Shamari could do community service during the MonDay Program.

       She may or may not have.

       The employment issues states she tried to tie Shamari to what she didn’t do in the past,

instead of dealing with what’s at hand, which is the MonDay Program itself. She did – or

Ms. Toops testified that Shamari did turn in employment applications to her showing that she

was trying to get a job. As weighs the court costs and fines, I’m sure it’s not in the State’s

priority list for those to be paid, but there’s case law out there that says if a defendant can’t

pay the court costs or fines, unable – because of – not of – not because of their own fault.
                                                                                           11


They’re trying to get employment, et cetera. That’s not to be considered.

       Shamari, as stated in the report, did break numerous rules, but she did last 90 days.

She’s benefitting from it. She’s making progress. For a young person – for her, prison’s not

amenable. It’s not going to help her improve her life. And, obviously, as the Court can take

note, there’s family members that’s been here for this hearing as well as other hearings,

meaning that Shamari does have a good support system at home and would do better in a

different kind of program other than in prison.

       Thank you for hearing me, Your Honor.

       {¶ 21} Had trial counsel objected to Toops testifying to the contents of the discharge

summary, and to the admission of the discharge summary as an exhibit, and had those

objections been sustained, it is likely that the State would have requested a continuance from

the trial court so that it might present the author of the report, Jennifer Scott, as a witness.

The trial court would have had discretion to grant a reasonable continuance, and most likely

would have done so, rather than allow the revocation to fail by default, given that the

discharge summary expressly states that Pullen-Morrow was unsuccessfully discharged from

the program, for the reasons stated. The result would most likely have been stronger evidence

for revocation.

       {¶ 22} Parenthetically, we note that the testimony of Toops concerning her

conversation with Pullen-Morrow arguably serves to prove, by Pullen-Morrow’s admission,

that Pullen-Morrow was discharged from the MonDay Program without having successfully

completed it.     Technically, that alone would have established a violation of one of the

conditions of Pullen-Morrow’s community control sanctions. But absent some proof of fault
                                                                                             12


on Pullen-Morrow’s part, it is doubtful that she could have had her community control

sanctions revoked. If, for example, Pullen-Morrow had been discharged from the program,

without having successfully completed it, through no fault of her own, but because the

MonDay Program had run out of funds, then it would seem to violate due process to revoke

her community control sanctions for that reason alone. At most, the testimony of Toops

concerning her conversation with Pullen-Morrow might be deemed to have established, by

Pullen-Morrow’s admission, that Pullen-Morrow was discharged from the MonDay Program

without having completed it; that testimony falls short of establishing that Pullen-Morrow was

at fault.

        {¶ 23} Pullen-Morrow’s trial counsel’s strategy, at the hearing, seems to have been to

argue that the testimony of Toops, due to its second-hand, hearsay nature, was insufficient to

prove that she had violated a condition of her community control sanctions, or that it was

insufficient to prove that she was no longer amenable to community control sanctions. We

are not prepared to say that this was an unreasonable strategy under the circumstances.

        {¶ 24} Furthermore, it does not seem so likely that the result of the proceeding would

have been otherwise, had counsel interposed objections, as to undermine confidence in the

outcome. As with other potential objections to the form of evidence, it seems likely that the

State would just have presented better evidence to prove the violation. That better evidence

existed, in the form of the testimony of Jennifer Scott, is not purely speculative; Scott’s report

– the discharge summary – demonstrates the likely nature of Scott’s testimony, had she been

called to testify.

        {¶ 25} In her assignment of error, Pullen-Morrow contends that the admission of the
                                                                                             13


evidence constitutes plain error.     Plain error requires a showing that the result of the

proceeding would clearly have been otherwise but for the error. State v. Cooperrider, 4 Ohio

St.3d 226, 227, 448 N.E.2d 452 (1983). See also, State v. Long, 53 Ohio St.2d 91, 372

N.E.2d 804 (1978), a case cited by Pullen-Morrow. For the reasons noted above, we cannot

find that the result of Pullen-Morrow’s revocation hearing would have been otherwise had the

testimony of Toops been excluded.

       {¶ 26} Pullen-Morrow cites State v. Miller, 42 Ohio St.2d 102, 326 N.E.2d 259

(1975) for the proposition that it is error, in probation revocation proceedings (the precursor to

community control sanction revocation proceedings), to permit a probation officer who did not

prepare entries in a probation department record to testify as to the contents of the record when

the probation officer who prepared the entries in the record does not appear. The distinction

is that in Miller, the probation officer’s hearsay testimony was objected to. Id., 42 Ohio St.2d

103.

       {¶ 27} Pullen-Morrow cites a decision of this court, State v. Houston, 2d Dist.

Champaign No. 06-CA-11, 2007-Ohio-868, ¶ 8, in which we said: “We agree with the

Appellant that the trial court should not rely on hearsay evidence entirely in making the

determination whether a probationer violated the terms of his probation.” It is not clear

whether the defendant in that case had objected to the admission of hearsay evidence at the

revocation hearing. What is clear is that the appeal was not taken from the revocation of the

defendant’s community control sanctions; the appeal was taken from the sentences

subsequently imposed. Id. Therefore, the hearsay issue was not before us in that appeal.

       {¶ 28} In State v. Houston, we cited Columbus v. Lacy, 46 Ohio App.3d 161, 546
                                                                                            14


N.E.2d 445 (10th Dist. 1988), and State v. Alderman, 70 Ohio App.3d 147, 590 N.E.2d 836

(6th Dist. 1990). In Columbus v. Lacy, it appears that the defendant had objected to the

hearsay testimony, which had come in during the preceding probable-cause hearing. 46 Ohio

App.3d 162.      We cannot determine from the opinion in State v. Alderman whether the

defendant in that case had objected to the hearsay testimony. That opinion does not discuss

ineffective assistance of counsel, or plain error, so it seems likely that the error in that case

was preserved.

       {¶ 29} Finally, Pullen-Morrow cites State v. Gray, 12th Dist. Butler No.

CA2008-12-294, 2009-Ohio-4821.         In that case, the court held that trial counsel was

ineffective for having failed to object, at the defendant’s criminal jury trial, to testimony

concerning out-of-court statements by the alleged victim. The issue arose in the context of an

appeal from the denial of the defendant’s motion for a new trial under Crim. R. 33. The court

of appeals held that “due to [the defendant’s] attorney’s ineffectiveness, her trial was so

demonstrably unfair that there is a reasonable probability the result would have been different

absent her attorney’s deficient performance.”       Id., ¶ 31.    The court of appeals cited

Williamson v. U.S., 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994), in support of its

holding.   In Williamson, the trial court had made a specific ruling that the out-of-court

statement in that case could be admitted in the defendant’s criminal trial. Id., 512 U.S. 597.

Therefore, although the opinion of the United States Supreme Court does not expressly note

that the defendant in that case had objected to the admission of the out-of-court statement, it

appears likely that the defendant did so. In any event, it is questionable whether a defendant

needs to interpose an express objection to the admission of testimony when the trial court
                                                                                            15


makes an express ruling that the testimony is admissible proof of an out-of-court statement.

The purpose for requiring an objection to preserve error is to ensure that the trial court has an

opportunity to consider the issue presented; here, the United States District Court expressly

considered the issue.

       {¶ 30} We conclude that the holding in State v. Gray may be distinguishable because:

(1) the issue of ineffective assistance arose in the context of a Crim.R. 33 motion for a new

trial, in which the record could be made up on the issue of trial counsel’s ineffectiveness; or

(2) the failure to object occurred at a trial, not at a community control revocation hearing. To

the extent that State v. Gray is not distinguishable, we do not find it persuasive.

       {¶ 31} Pullen-Morrow’s sole assignment of error is overruled.



                                        III. Conclusion

       {¶ 32} Pullen-Morrow’s sole assignment of error having been overruled, the

judgment of the trial court is Affirmed.

                                                    .............



CUNNINGHAM, J., concurs.

GRADY, P.J., dissenting:

       {¶ 33}    The report introduced through the testimony of Linda Toops, an employee of

the Montgomery County Adult Probation Department, was prepared by Jennita Scott, an

employee of the Mon Day Program. Toops had no personal knowledge of the matter the

report contains. Scott did not appear at the revocation hearing, and there was no showing she
                                                                                             16


was unavailable to testify, or that there was good cause for denying Defendant her right to

confront Scott concerning the contents of her report. In that circumstance, admission of the

report and Toops’ testimony concerning it denied Defendant her right of due process. State v.

Miller, 42 Ohio St.3d 102, 326 N.E.2d 259 (1975). The failure of Defendant’s counsel to

object to Toops’ hearsay testimony fell below an objective standard of representation.

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

       {¶ 34} The further issue is whether Defendant was prejudiced by her counsel’s

deficient performance; that is, whether there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. Id.

       {¶ 35} Had counsel objected to Toops’ testimony concerning Scott’s report, the

outcome of the proceeding on that day necessarily would have been different.               It was

counsel’s duty to follow every available avenue to obtain that result. Even had the court

continued the hearing to allow the State to call Scott, there is no basis to conclude that Scott’s

testimony would have been any more adverse to Defendant than her report was. It might even

have been helpful, to the extent that confrontation sometimes produces such a result.

Counsel’s failure to object deprived Defendant of that opportunity.

       {¶ 36} I would reverse and remand.

                                        .............

(Hon. Penelope R. Cunningham, First District Court of Appeals, sitting by assignment of the
Chief Justice of the Supreme Court of Ohio).



Copies mailed to:

Mathias H. Heck
                       17


Johnna M. Shia
Michael C. Thompson
Hon. Mary K. Huffman
