[Cite as State v. Hurley, 2010-Ohio-3668.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                HARDIN COUNTY


STATE OF OHIO,                                            CASE NO. 6-10-02

   PLAINTIFF-APPELLEE,

  v.

KELLIE M. HURLEY                                            OPINION
aka KELLIE M. BAILEY,

   DEFENDANT-APPELLANT.


STATE OF OHIO,                                            CASE NO. 6-10-03

   PLAINTIFF-APPELLEE,

  v.

KELLIE M. HURLEY,                                           OPINION
aka KELLIE M. BAILEY,

   DEFENDANT-APPELLANT.


                  Appeal from Hardin County Common Pleas Court
                   Trial Court Nos. 20082120 CRI, 20082127 CRI

                                      Judgment Affirmed

                             Date of Decision: August 9, 2010


APPEARANCES:

        Todd A. Workman, for Appellant

        Maria Santo, for Appellee
Case No. 6-09-02, 03




WILLAMOWSKI, P.J.,

       {¶1} Defendant-Appellant, Kellie M. Hurley, aka Kellie M. Bailey

(hereinafter “Appellant”), appeals the judgment of the Hardin County Court of

Common Pleas finding her in violation of conditions of her community control

sanctions and, accordingly, revoking her community control. For the reasons set

forth below, the judgment is affirmed.

       {¶2} On June 11, 2008, in Case No. 20082120 (“Case 1”), the Hardin

County Grand Jury indicted Appellant on one count of breaking and entering, in

violation of R.C. 2911.13(B), a felony of the fifth degree; and one count of grand

theft of a motor vehicle, in violation of R.C.2913.02(A)(1),(B)(2), a felony of the

fourth degree. In another case, on July 8, 2008, Case No. 20082127 (“Case 2”),

the Hardin County Grand Jury indicted Appellant on one count of burglary in

violation of R.C. 2911.12(A)(2), a felony of the second degree; one count of grand

theft, in violation of R.C.2913.02(A)(1),(B)(2), a felony of the fourth degree; one

count of criminal damaging, in violation of R.C. 2909.06(A)(1), a misdemeanor of

the second degree; fourteen counts of grand theft of a firearm with a firearm

specification, in violation of R.C. 2913.02(A)(1),(B)(4) and R.C 2941.141(A),

felonies of the third degree; and one count of engaging in a pattern of corrupt

activity, in violation of R..C. 2923.32(A)(1),(B)(1), a felony of the first degree.




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       {¶3} On January 21, 2009, pursuant to a plea agreement, Appellant

entered a plea of guilty to the grand theft of a motor vehicle count in Case 1.

Appellant also pled guilty to the burglary count and the fourteen counts of grand

theft of firearms, without the specifications, in Case 2.

       {¶4} The combined sentencing hearing on the two cases was held on May

19, 2009. In Case 1, the trial court placed Appellant on three years of community

control, but informed her that a violation of any of the terms of supervision could

lead to a more restrictive sanction, a longer sanction, or a definite prison term of

seventeen months. In Case 2, the trial court also placed Appellant on three years

of community control for each of the fifteen counts, with the same warning that

any violation of the terms of supervision could result in increased sanctions or a

definite prison term (of two years in prison for the burglary, and one year in prison

for each of the fourteen firearm thefts). The trial court informed Appellant that if

she violated the terms of her community control, the sentences for each count of

Case 2 were to run consecutively to each other and were also to run consecutively

to the term in Case 1, for a total of seventeen years and five months in prison.

       {¶5} On December 29, 2009, the State filed a motion to revoke

supervision alleging that Appellant had tested positive for opiates, which was lab

verified as heroin. This was in violation of community control provision number

one, requiring that she “obey federal, state, and local laws and all court orders, and

agree to conduct [herself] as a responsible law abiding citizen.” It was also a


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violation of condition of supervision number six, that she “not purchase, use, or

have under [her] control any controlled substance or illegal drug ***” and that she

further agrees to submit to drug testing.

       {¶6} On January 12, 2010, a revocation hearing was held and Katie Baier

(“Baier”), Appellant’s community control officer, testified concerning the results

of the drug test and answered other questions concerning Appellant’s conduct

during the seven months that she had been under community control. In addition

to testimony concerning the drug test, Baier also testified that Appellant had not

paid anything towards the ordered restitution and court costs; that Appellant would

sometimes go months at a time without personally reporting as required; and that

Appellant had been picked up in Kenton for transporting heroin. Although the

disposition of the case for transporting heroin was still pending, Appellant was in

violation for not reporting this arrest. Baier testified that Appellant claimed she

was unable to appear for several of her reporting dates because she was ill.

Appellant apparently had a pattern of going to the emergency room the day before

a reporting date and then calling to reschedule because of illness. There was also

testimony that Appellant had been charged with transporting a controlled

substance into a prison or lock-down facility in Marion County, although that

offense had been committed prior to the beginning of community control but while

she was on bond pending sentencing in these cases. The community control




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officer testified that, in her professional option, Appellant was not amenable to any

future community control.

       {¶7} The trial court found that Appellant had violated the rules of

supervision and that she was not amenable to continued community control

sanctions. The trial court then proceeded to impose the prison sentences that had

previously been specified in the two cases, ordering Appellant to serve a total of

seventeen years and five months in prison. The sentence was journalized on

January 14, 2004. It is from this judgment that Appellant now appeals, setting

forth the following three assignments of error for our review.

                             First Assignment of Error

       Defendant-Appellant was denied of Due Process when the state
       submitted evidence of community control violations without
       previously providing Defendant-Appellant written notice of the
       alleged violations and without providing disclosure of the
       evidence against her.

                            Second Assignment of Error

       Defendant-Appellant was denied of Due Process when the trial
       court failed to make written findings of facts and conclusions of
       law.

                            Third Assignment of Error

       Defendant-Appellant was denied effective assistance of counsel
       at all stages of the criminal proceedings against her.

       {¶8} In the first assignment of error, Appellant complains that she was

denied her due process rights because the State’s affidavit/motion merely cited one



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violation, that Appellant had tested positive for opiates, but that the State admitted

evidence of several other violations at the hearing, namely criminal/drug-related

activities in Hardin and Marion County; payment history of fines, costs, and

restitution; reporting history; and community service compliance.          Appellant

complains that she did not receive notice of these additional allegations and that

the State failed to disclose evidence of the additional violations prior to the

hearing.

       {¶9} This Court has held that while a revocation proceeding must

comport with the requirements of due process, it is not a criminal proceeding.

State v. Ryan, 3d Dist. No. 14-06-55, 2007-Ohio-4743, ¶8, citing Gagnon v.

Scarpelli (1973), 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656. Therefore,

the minimum due process requirements afforded a defendant in a probation

revocation proceeding differ from those in a criminal trial. State v. McKeithen,

3rd Dist. No. 9-08-29, 2009-Ohio-84, ¶22.             The minimum due process

requirements for revocation hearings are: (a) Written notice of the claimed

violations; (b) disclosure of evidence against him or her; (c) the opportunity to be

heard in person and to present witnesses and documentary evidence; (d) the right

to confront and cross-examine adverse witnesses; (e) a neutral and detached

hearing body; and (f) a written statement by the fact finders as to the evidence

relied on and reasons for revocation. Id., quoting State v. Miller (1975), 42 Ohio




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St.2d 102, 104, 326 N.E.2d 259, quoting Morrissey v. Brewer (1972), 408 U.S.

471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484.

      {¶10} At the revocation hearing, Appellant did not admit that she had

violated any of the terms of her community control, so the State called her

community control officer to testify.         After questioning the officer about

Appellant’s positive drug test, the State continued to ask questions concerning

Appellant’s compliance with the terms of her supervision during the seven months

she had been on community control. During this time, the information concerning

Appellant’s other areas of noncompliance were revealed. At the beginning of

cross-examination, Appellant’s counsel questioned the witness as to why the other

violations were not listed as part of her affidavit in support of the motion to

revoke.   The officer stated that, at the time, the immediate matter was that

Appellant had tested positive for heroin and the officer wanted her in custody as

soon as possible so that she could no longer use.        Appellant’s counsel then

proceeded to cross-examine the officer about the various incidents and allegations.

      {¶11} Although Appellant’s counsel raised the issue to the trial court

concerning the propriety of admitting evidence of the additional violations, he did

not object to the officer’s testimony, and therefore, that matter was before the

court. Appellant has waived the issue except for plain error.

      {¶12} However, while the trial court commented that evidence was

admitted without objection, the record clearly shows that the trial court was


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cognizant of the fact that the only two issues that were properly before the court

for purposes of determining revocation were the two violations associated with the

positive drug test that were stated in the affidavit. The remaining violations that

were discussed during the officer’s testimony went to the matter of disposition and

Appellant’s amenability to community control. The trial court stated:

       The Court agrees with [Appellant’s attorney] that the matter is
       coming before the Court on a limited basis as to allegations in the
       motion—affidavit in that she tested positive for opiates which
       was verified, and that was a violation of condition of supervision
       one: I will obey federal, state, and local laws and all court
       orders, and agree to conduct myself as a responsible law abiding
       citizen. Also two, violation of condition of supervision six: Will
       not purchase, use, or have under my control any controlled
       substance or illegal drug ***. On December 8th the Defendant
       did test positive to opiates which was lab verified as heroin. ***
       And [Appellant’s attorney] accurately states that’s why we’re
       here today -- these two allegations. *** The Court would have to
       find based upon the evidence before the Court that the
       Defendant has willfully violated the two conditions as alleged in
       the affidavit, it would find that she has, in fact, violated the rules
       of supervision.

(Jan. 12, 2010 Transcript of Hearing on Supervision, pp. 25-26, emphasis added.)

Concerning the evidence of additional violations, the trial court stated that

“[w]hether we use it for purposes of disposition or whether we use it for purposes

of showing a particular pattern in this particular Defendant’s life is totally

immaterial to this Court ***.” Id.

       {¶13} If the conditions of community control are violated, R.C. 2929.15(B)

provides the trial court a great deal of latitude in sentencing the offender. State v.



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Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, ¶20.             “The

privilege of probation rests upon the probationer’s compliance with the probation

conditions and any violation of those conditions may properly be used to revoke

the privilege.” State v. Ohly, 16 Ohio App.3d 808, 2006-Ohio-2353, 853 N.E.2d

675, ¶19.

       {¶14} It is evident from the record that the trial court distinguished

between the evidence that determined whether Appellant violated the terms of

supervision and the evidence that was used for disposition and to determine

whether Appellant was amenable to further community control sanctions.

Appellant has failed to establish any due process violation.

       {¶15} Even if this was not the case, it still would not have amounted to

plain error because Appellant failed to demonstrate that the outcome of the

revocation proceeding would have been any different.           Once it had been

determined that Appellant had violated the terms of her supervision, it was within

the trial court’s sound discretion to revoke her community control.   See State v.

South, 3d Dist. No. 14-07-40, 2010-Ohio-983, ¶8. Her sentence was within the

statutory range for the underlying offenses and Appellant was properly notified of

the consequences of violating her community control sanctions. See id. at ¶7.

Appellant’s first assignment of error is overruled.

       {¶16} In her second assignment of error, Appellant claims that she was

denied due process because the trial court revoked Appellant’s community control


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without providing a written statement as to the evidence relied upon for revocation

and the reasons why the trial court determined that she was no longer amenable to

continued community control. A written statement by the fact finders as to the

evidence relied on and reasons for revocation is one of the due process rights

afforded defendants at revocation hearings. See McKeithen, supra, quoting State

v. Miller, supra.

       {¶17} The judgment entries in Case 1 and Case 2 did not provide detailed

reasoning, but stated:

       The Court hereby finds, based upon the evidence adduced, that
       Defendant has violated the terms of her Community Control
       Sanctions, and after giving Defendant the opportunity to speak,
       further finds that a prison sentence for such violations is
       consistent with the purposes and principles of sentencing under
       R.C. 2929.11 because a prison sentence is reasonably necessary
       to punish the offender and to deter, rehabilitate, and
       incapacitate the offender in order to protect the public from
       future crime ***.

       The Court finds that the offender is not presently amenable to
       any available combination of community control sanctions and
       that continued use of such sanctions would demean the
       seriousness of her misconduct while under community control.

       {¶18} This Court has previous addressed what meets the requirement of a

“written statement.” See McKeithen, 2009-Ohio-84, at ¶23-24, quoting State v.

Ferguson (1991), 72 Ohio App.3d 714, 595 N.E.2d 1011:

       We found that “[t]he trial court at the hearing and in its
       judgment entry stated that upon hearing all the evidence in the
       case *** probable cause existed to find Appellant violated the
       terms of his probation. We concluded appellant was sufficiently


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      informed of the reason his probation was revoked.” State v.
      Ferguson, 72 Ohio App.3d at 719, 595 N.E.2d 1011.

      The Ohio Supreme Court noted, in State v. Delaney (1984), 11
      Ohio St.3d 231, 465 N.E.2d 72, that oral explanations of the
      violation may satisfy this requirement. The Court found [at 235]
      that:

      “Although we do not condone the use of oral ‘explanations’ in
      lieu of written statements detailing the basis for a trial court's
      determination in revocation proceedings, we find that, in this
      case, the trial court's statement sufficiently informed Appellant
      of the reasons for which his probation was being revoked, while
      also providing an adequate record for review on appeal.”

      {¶19} The detailed reasons for revoking Appellant’s community control

were articulated at the revocation hearing, as quoted above in paragraph 12, and

definitively informed Appellant of the exact reasons why her community control

was being revoked. Furthermore, the trial court also discussed several reasons

why she was not amenable to further community control. Additionally, when

Appellant was given an opportunity to speak before disposition, she apologized

and promised she would do whatever the court wanted her to do and there would

not be “any more problems.” The trial court responded:

      This could almost be a replay couldn’t it Ms. Bailey? Didn’t you
      say the exact same thing back on May 19th when I sentenced you
      on these matters? And I informed you of all the possibilities of
      the total time in prison you were gonna serve, and you assured
      me that you were gonna do everything you could to stay out of
      prison. Do you remember that conversation?

      ***

      So, I’m not hearing anything different today ma-am. ***


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(Jan. 12, 2010 Transcript of Hearing on Supervision, p. 30.)

       {¶20} We find that the detailed reasons articulated in open court, along

with the statements made in the judgment entry, are sufficient to satisfy

Appellant’s due process rights to be informed of the basis for the revocation of

community control. The second assignment of error is overruled.

       {¶21} In the third assignment of error, Appellant complains that she was

denied effective legal assistance because her counsel failed to object to testimony

he knew to be improperly submitted and detrimental to his client and he failed to

bifurcate the hearings so that he could better prepare for the evidence of the

additional violations, beyond what was alleged in the affidavit. He also did not

offer any evidence at the disposition.

       {¶22} The Supreme Court of Ohio has established a two-part test to

determine if trial counsel was ineffective. First, the defendant must show that

counsel's performance fell below objective standards of reasonable representation,

and second, the defendant must show resulting prejudice. State v. Bradley (1989),

42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus. To show

prejudice, the defendant must prove that there existed a reasonable probability

that, but for counsel's errors, the outcome at trial would have been different.

Bradley, at paragraph three of the syllabus.




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       {¶23} A defendant must also overcome the presumption that counsel is

competent and must show that counsel's decisions were “not trial strategies

prompted by reasonable professional judgment.” State v. Dickinson, 3d Dist. No.

11-08-08, 2009-Ohio-2099, ¶21, citing Strickland v. Washington (1984), 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674.        Even unsuccessful tactical or strategic

decisions will not constitute ineffective assistance of counsel. State v. Carter, 72

Ohio St.3d 545, 558, 1995-Ohio-104, 651 N.E.2d 965. An appellate court must

review the totality of the circumstances and not isolated instances of an allegedly

deficient performance. State v. Stacy, 3d Dist. No. 13-08-44, 2009-Ohio-3816,

¶20.

       {¶24} This court has previously held that trial counsel's failure to object

does not establish ineffective assistance of counsel. Id. at ¶21; State v. Turks, 3d

Dist. No. 1-08-44, 2009-Ohio-1837, ¶43, citing State v. Conway, 109 Ohio St.3d

412, 2006-Ohio-2815, 848 N.E.2d 810, ¶103. Trial counsel's failure to object is

generally viewed as trial strategy and does not, by itself, establish ineffective

assistance. State v. Gumm, 73 Ohio St.3d 413, 428, 1995-Ohio-28, 653 N.E.2d

253.

       {¶25} Appellant’s counsel did not object to the community control

officer’s statements at the time they were made, but he did raise the issue to the

trial court, and the record demonstrates that the trial court agreed with Appellant’s

counsel and only considered the evidence that pertained to the violations stated in


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the affidavit/motion. See discussion re first assignment of error, supra (“The

Court agrees with [Appellant’s attorney] that the matter is coming before the Court

on a limited basis as to allegations in the motion—affidavit ***.”) Appellant’s

counsel thoroughly cross-examined the witness and strongly advocated on

Appellant’s behalf. When questioned directly by the trial court, Appellant herself

admitted to some of the transgressions. Appellant’s counsel’s failure to object did

not prejudice Appellant.

       {¶26} Likewise, as to the bifurcation issue, there is nothing in the record

which demonstrates that the trial court would have found that Appellant was still

amenable to community control if the officer’s testimony had been admitted at a

separate disposition proceeding.       Appellant’s counsel cross-examined the

community control officer, Appellant had an opportunity to speak on her behalf,

and there was no indication that there was any evidence that Appellant’s counsel

could have admitted that would have changed the outcome of the proceeding.

Appellant’s third assignment of error is overruled.

       {¶27} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

ROGERS and SHAW, J.J., concur.

/jnc




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