[Cite as State v. Fears, 2018-Ohio-1468.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Patricia A. Delaney, J.
                         Plaintiff-Appellant   :       Hon. Earle E. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 17-CA-67
VERN L. FEARS                                  :
                                               :
                      Defendant-Appellee       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Richland County
                                                   Court of Common Pleas, Case No.
                                                   2012CR0846D


JUDGMENT:                                          Affirmed


DATE OF JUDGMENT ENTRY:                            April 16, 2018



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

GARY BISHOP                                        RANDALL FRY
PROSECUTING ATTORNEY                               10 West Newlon Place
BY: JOSEPH SNYDER                                  Mansfield, OH 44902
38 South Park Street
Mansfield, OH 44902
[Cite as State v. Fears, 2018-Ohio-1468.]


Gwin, P.J.

        {¶1}     Defendant-appellant Vern Fears [“Fears”] appeals the July 13, 2017

Judgement Entry of the Richland County Court of Common Pleas finding that he violated

his community control sanctions.

                                            Facts and Procedural History

        {¶2}     On February 4, 2013 in Richland County Court of Common Pleas, Case

Number 2012-CR-0847 Fears was convicted of one count of Aggravated Burglary a

felony of the first degree and one count of Robbery, a felony of the second degree. The

trial court sentenced Fears to four years in prison on the Aggravated Burglary charge. On

the Robbery charge, Fears was given a four year suspended prison sentence, with a

mandatory five years of post-release control, and five years of community control to begin

upon Fears’ release from prison on the Aggravated Burglary charge.

        {¶3}     On November 23, 2016, Fears was released from prison and placed on

probation / community control. On April 4, 2017, a “Notice of Hearing Probation Violation”

was filed alleging that Fears had violated his probation. Fears pled to the violation and

was found guilty by the trial court.              By Judgment Entry filed May 8, 2017, Fears’

community control was continued with the addition that he pay a $200.00 sanction and

successfully complete “Thinking for a Change.”

        {¶4}     On June 27, 2017, a “Notice of Hearing Probation Violation” was filed

alleging that Fears had violated his probation. The Notice set forth in three separate

counts the alleged violations.

        {¶5}     On July 12, 2017, a probation violation hearing was conducted by the trial

court. Fears admitted to the allegations contained in Counts 2 and Count 3 but denied
the allegations contained in Count 11. T. September 15, 2017 at 4-5. A hearing was held

concerning Fears’ violation of Count 1, which alleged that Fears “On or about 06/10/17…

entered [a residence] without the consent of the person authorized to give consent” and

further, “On or after 05/28/17…changed your residence without obtaining permission from

your supervising officer.” Id. at 4.

        {¶6}    The only witness called by the state during the revocation hearing was the

probation officer, Mary Gates.

        {¶7}    Gates testified that Fears is on Community Control for the Robbery charge

and Fears is on Post-release Control for the Aggravated Burglary charge. T. at 7. Gates

testified that she went to the location that Fears was supposed to be residing on two

occasions and no one answered the door. Gates left her card in the door on both

occasions. T. at 9. Fears testified that she spoke on the telephone with Fears’ wife on

May 30, 2017, and she reported that he had not been home since May 28, 2017. T. at

10. Gates testified that on June 12, 2017, an officer from the Mansfield Police Department

contacted her informing her that Fears went to the residence of his wife, kicked the door

in and was shot by an alleged boyfriend who was at the home. T. at 11-13; 20. Gates

also testified that The Northern Ohio Fugitive Task Force was attempting to locate Fears

after this incident. T. at 13-14. Gates contacted the task force because she was in fear

for the safety of Fears’ wife. T. at 15. Fears further testified that Fears’ wife had told her

Fears was staying with his father in Cleveland. T. at 17.




        1 Count 2 alleged that Fears had failed to report for office visits every Tuesday as instructed; Count
3 alleged that Fears failed to attend Reentry Court as instructed.
       {¶8}   After his arrest, Gates met with Fears who told her that he never changed

his address and was still living in Mansfield, not Cleveland. Fears claimed his wife was

lying and trying to set him up. T. at 21.

       {¶9}   After listening to the testimony of Mary Gates, the Court ruled that Fears

was guilty of changing his residence without obtaining permission from his supervision

officer. The Court said it based its ruling for a number of reasons. The first reason the

Court stated was that Fears’ wife said so and that her testimony is uncontracted. T.at 40.

The Court stated that Fears’ wife had been a reliable reporter in the past so there was no

reason to disbelieve her testimony. T. at 40. The Court also stated in its ruling that on

June 10, 2017, that Fears could not get into his residence without kicking in the door. T.

at 40, 41.

       {¶10} On July 13, 2017, a Community Control Violation Journal Entry was filed.

The Court accepted Fears’ admission to Community Control violations Count 2 and Count

3 and found Fears guilty of Community Control violation Count 1. Fears was sentenced

to 3 years of prison on the underlying charge of Robbery, along with 3 years of mandatory

Community Control.

                                       Assignment of Error

       {¶11} Fears raises one assignment of error:

       {¶12} “I. THE TRIAL COURT FAILED TO AFFORD THE APPELLANT A FULL

AND FAIR PROBATION REVOCATION HEARING AS REQUIRED BY DUE PROCESS

AND GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS OF THE

UNITED STATES CONSTITUTION.”
                                        Law and Analyses

       {¶13} In finding that Fears was guilty of Count 1 of his probation violation /

community control violation, Fears argues that the trial court violated his right to confront

and cross-examine his accusers and erred in permitting the probation officer to testify to

the hearsay statement alleged made by Fears’ wife. However, Fears did not raise the

constitutional argument at trial.   Fears only objected to hearsay in the form of the

Mansfield Police detective telling Gates that Fears had kicked the door in to his wife’s

residence and was shot by the wife’s boyfriend. T. at 12-13.

       STANDARD OF APPELLATE REVIEW

   A. Plain error.

       {¶14} Crim.R. 52(B) affords appellate courts discretion to correct “[p]lain errors or

defects affecting substantial rights” notwithstanding an accused’s failure to meet his

obligation to bring those errors to the attention of the trial court. However, the accused

bears the burden to demonstrate plain error on the record, State v. Quarterman, 140 Ohio

St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16, and must show “an error, i.e., a

deviation from a legal rule” that constitutes “an ‘obvious’ defect in the trial proceedings,”

State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

       {¶15} Even if the error is obvious, it must have affected substantial rights, and

“[w]e have interpreted this aspect of the rule to mean that the trial court’s error must have

affected the outcome of the trial.” Id. The Ohio Supreme Court recently clarified in State

v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, that the accused is

“required to demonstrate a reasonable probability that the error resulted in prejudice—

the same deferential standard for reviewing ineffective assistance of counsel claims.”
(Emphasis sic.) Id. at ¶ 22, citing United States v. Dominguez Benitez, 542 U.S. 74, 81–

83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). Accord, State v. Thomas, ___ Ohio St.3d

___, 2017-Ohio-8011, ___N.E.3d ____ (Oct. 4, 2017), ¶32-34.

       {¶16} If the accused shows that the trial court committed plain error affecting the

outcome of the proceeding, an appellate court is not required to correct it; the Supreme

Court has “admonish[ed] courts to notice plain error ‘with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.’”

(Emphasis added.) Barnes at 27, 759 N.E.2d 1240, quoting State v. Long, 53 Ohio St.2d

91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. Accord, State v. Thomas,

___ Ohio St.3d ___, 2017-Ohio-8011, ___N.E.3d ____ (Oct. 4, 2017), ¶32-34.

        B. Probation / Community Control revocation.

       {¶17} “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, 166 Ohio App.3d 808, 2006-Ohio-2353, 853 N.E.2d 675 (6th

Dist.), ¶19, quoting State v. Bell, 66 Ohio App.3d 52, 57, 583 N.E.2d 414 (5th Dist. 1990).

“Because a community control revocation hearing is not a criminal trial, the state does not

have to establish a violation with proof beyond a reasonable doubt.” State v. Wolfson,

4th Dist. Lawrence No. 03CA25, 2004-Ohio-2750, ¶7; see, also, State v. Payne, 12th

Dist. Warren No. CA2001-09-081, 2002-Ohio-1916; State v. Hylton, 75 Ohio App.3d 778,

782, 600 N.E.2d 821 (4th Dist. 1991). Instead, the state need only present “substantial”

proof that a defendant willfully violated the community control conditions. See Hylton, 75

Ohio App.3d at 7822. “The test ordinarily applied is highly deferential to the decision of


       2Prior case law governing probation revocations applies to the revocation of community control.
State v. Wolfson, 4th Dist. Lawrence No. 03CA25, 2004-Ohio-2750.
the trial court and is akin to a preponderance of the evidence burden of proof. See State

v. Alderson, 4th Dist. Meigs No. 98CA12, 1999 WL 713594 (Aug. 31, 1999). Accordingly,

the court's conclusion must be sustained if there is competent credible evidence to

support it. Id.” State v. Hayes, 6th Dist. Wood No. WD-00-075, 2001 WL 909291(Aug.

10, 2001). Additionally, the “[d]etermination of the credibility of the witnesses is for the

trier of fact.” Ohly, 166 Ohio App.3d 808, ¶ 19. See also, State v. Brank, 5th Dist. Tusc.

No.2006AP 090053, 2007-Ohio-919.

       {¶18} Once a trial court finds that a defendant violated community control

conditions, it possesses discretion to revoke the defendant's community control. In that

event, appellate courts should not reverse trial court decisions unless a court abused its

discretion. Wolfson, 2004-Ohio-2750, ¶8.

       {¶19} An abuse of discretion exists where the reasons given by the court for its

action are clearly untenable, legally incorrect, or amount to a denial of justice, or where

the judgment reaches an end or purpose not justified by reason and the evidence.

Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship

of S .H., 9th Dist. Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi,

5th Dist. Licking No. 2006–CA–41, 2006–Ohio–5823, ¶54.

       1. The confrontation clause and post-release control / community control

revocation hearings.

       {¶20} The Sixth Amendment to the United States Constitution provides that “[i]n

all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the

witnesses against him.”
      {¶21} In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177

(2004), the Supreme Court of the United States held that out-of-court statements that are

testimonial are barred, under the Confrontation Clause, unless the witness is unavailable

and the defendant had a prior opportunity to cross-examine the witness, regardless of

whether the statements are deemed reliable by the trial court.

      {¶22} In Blanks v. Maryland, the Court of Special Appeals of Maryland had the

following observation,

             In the twelve years since Crawford was decided, ten federal courts

      of appeals have addressed whether the Crawford standard for admissibility

      of testimonial hearsay applies in a revocation of probation (or parole)

      proceeding. All ten courts have held that because the rights guaranteed by

      the Sixth Amendment only apply to “criminal prosecutions,” neither the Sixth

      Amendment right to confrontation nor the Crawford Court’s interpretation of

      that right applies in such a proceeding. See United States v. Rondeau, 430

      F.3d 44, 47 (1st Cir. 2005) (“Nothing in Crawford indicates that the Supreme

      Court intended to extend the Confrontation Clause’s reach beyond the

      criminal prosecution context”); United States v. Aspinall, 389 F.3d 332, 343

      (2nd Cir. 2004) (“Nothing in Crawford, which reviewed a criminal trial,

      purported to alter the standards set by Morrissey/[Gagnon] or otherwise

      suggested that the Confrontation Clause principle enunciated in Crawford

      is applicable to probation revocation proceedings”); United States v. Lloyd,

      566 F.3d 341, 343 (3rd Cir. 2009) (“The limited right to confrontation

      [afforded in a revocation proceeding] stems from the Fifth Amendment’s
Due Process Clause, not from the Confrontation Clause of the Sixth

Amendment.”); United States v. Ferguson, 752 F.3d 613, 619 (4th Cir.

2014) (revocation of parole proceeding “does not involve the Sixth

Amendment”)9; United States v. Kirby, 418 F.3d 621, 627 (6th Cir. 2005)

(Crawford does not apply to a revocation of probation proceeding because,

by its text, the Sixth Amendment does not apply outside of a criminal

prosecution); United States v. Kelley, 446 F.3d 688, 691 (7th Cir. 2006)

(“Crawford changed nothing with respect to [probation] revocation hearings”

because the “limited confrontation right in revocation proceedings was

explicitly grounded in considerations of due process, not the Sixth

Amendment”); United States v. Ray, 530 F.3d 666, 668 (8th Cir. 2008)

(Crawford does not apply in the context of a revocation of supervised

release proceeding); United States v. Hall, 419 F.3d 980, 985 (9th Cir.

2005), cert denied, 546 U.S. 1080, 126 S.Ct. 838, 163 L.Ed.2d 714 (2005)

(Crawford does not apply in a revocation of probation proceeding where

“due process standard[s] [are] used to determine whether hearsay

evidence” is admissible); Curtis v. Chester, 626 F.3d 540, 544 (10th Cir.

2010) (Sixth Amendment right to confrontation does not apply in parole

revocation proceeding and “neither do any Supreme Court cases dealing

with it, specifically Crawford ”); Ash v. Reilly, 431 F.3d 826, 829 (D.C.Cir

2005) (due process rights afforded to a parolee at a revocation proceeding

emanate from the Due Process Clause of the Fourteenth Amendment, not

the Confrontation Clause of the Sixth Amendment, thus making Crawford
       inapplicable in that setting). See also Reyes v. State, 868 N.E.2d 438, 440

       & n. 1 (Ind. 2007) (holding that Crawford has no application in a civil

       revocation of probation proceeding); State v. Carr, 216 Ariz. 444, 167 P.3d

       131, 134 (App.2007) (probation revocation proceeding is not “a stage of a

       criminal prosecution” and thus does not implicate the Sixth Amendment).

228 Md.App. 3335, 351-352, 137 A.3d 1074, 1083-1084(2016). Accord, State v.

Esquilin, 179 Conn.App. 461, __ A.3d___ (2018), at n. 10. (since Crawford “an

overwhelming majority of federal circuit and state appellate courts that have

addressed this issue have concluded that Crawford does not apply to a revocation

of probation hearing.” (Citations omitted.)).

       2. Hearsay and post-release control / community control revocation hearings.

       {¶23} As set forth by the United States Supreme Court in Gagnon v. Scarpelli,

411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656(1973), the due process requirements

of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484(1972), with regard

to parole violation hearings, are applicable to probation revocation proceedings. The

minimal due process requirements for final revocation hearings include:

              (a) [W]ritten 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
      lawyers; and (f) a written statement by the factfinders as to the evidence

      relied on and reasons for revoking (probation or) parole. (Emphasis added).

Gagnon v. Scarpelli, 411 U.S. at 782, 93 S.Ct. 1756, 36 L.Ed.2d 656(1973), citing

Morrissey v. Brewer, 408 U.S. at 489, 92 S.Ct. 2593, 33 L.Ed.2d 484(1972).

      {¶24} Whether there is “good cause” for not allowing confrontation during a

revocation hearing should be determined by using a balancing test. State v. Esquilin, 179

Conn.App. 461, 472 __ A.3d___ (2018). This test requires the court to “to balance, “‘on

the one hand, the defendant’s interest in confronting the declarant, against, on the other

hand, the government’s reasons for not producing the witness and the reliability of the

proffered hearsay. United States v. Williams, 443 F.3d 35, 45 (2d Cir. 2006); see also

United States v. Chin, 224 F.3d 121, 124 (2d Cir. 2000).’ (Internal quotation marks

omitted.) State v. Shakir, 130 Conn. App. 458, 468, 22 A.3d 1285, cert. denied, 302

Conn. 931, 28 A.3d 345 (2011).” Esquilin, 179 Conn.App. at 473. In Blanks v. State, the

court observed,

              “[G]ood cause need not reach the high standard governing the

      admissibility of hearsay evidence at criminal trials.” Fuller, 308 Md. at 553

      n. 5, 520 A.2d 1315. “In determining whether there is good cause to admit

      hearsay in a probation revocation hearing, it is obvious that the most

      important factor is the reliability of the proffered hearsay evidence” and

      “whenever the proffered hearsay evidence has substantial guarantees of

      trustworthiness the hearsay is admissible without the need to establish any

      additional good cause.”     Bailey, 327 Md. at 699, 612 A.2d 288 (citing

      Egerstaffer v. Israel, 726 F.2d 1231, 1234–35 (7th Cir. 1984)).
228 Md.App. at 355, 137 A.3d at 1085.

      {¶25} The Ohio Supreme Court has also recognized that there is a limitation on

the admissibility of hearsay testimony during revocation proceedings. In State v. Tims, 9

Ohio St.2d 136, 224 N.E.2d 348(1967), the defendant was prosecuted for statutory rape,

and, at trial, a document entitled “Report of Examination for Alleged Rape” was admitted

in evidence through a clerk in the medical record room of the hospital who admitted that

she had not made the examination and was not present when it was made. The question

before the court in that case was “whether the report of the examination for alleged rape

was properly admitted into evidence under the provisions of Section 2317.40, Revised

Code (Business Records as Evidence Act).” It was held that the Business Records as

Evidence Act was not applicable. See also, State v. Miller, 42 Ohio St.2d 102, 104-105,

326 N.E.2d 259(1975).

      {¶26} In State v. Miller, the Ohio Supreme Court held.

             Where at a probation revocation hearing the trial court permits a

      probation officer who did not prepare the entries in the probation department

      record to testify as to the contents of that record and the probation officer

      who prepared the entries does not appear, there is a denial of the

      probationer’s right to confront the witnesses against him, and, where the

      record does not show that the probation officer who prepared the entries

      was unavailable or that a specific finding was made of good cause for not

      allowing confrontation, there is a denial of the minimum requirements of due

      process of law required for probation revocation proceedings. (Morrissey v.
       Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, and Gagnon v.

       Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, followed.)

42 Ohio St.2d 102, 104-105, 326 N.E.2d 259, at syllabus (emphasis added). The Court

found that,

              The record here does not indicate that appellee’s original probation

       officer, although no longer employed by the probation department, was

       unavailable, or that the trial court made a specific finding of good cause for

       not allowing confrontation.     The trial court, therefore, did not provide

       appellee the minimum due process requirements specified in Morrissey at

       his probation revocation hearing.

42 Ohio St.2d 102, 106, 326 N.E.2d 259 (emphasis added).

       {¶27} In the case at bar, Fears only objected to testimony by the probation officer

that Fears had kicked in the door to his wife’s residence. T. at 12. However, the probation

officer without objection previously testified to these facts. T. at 11-12.

       {¶28} Courts have “held that minimum due process requirements are satisfied

where the parolee admits the alleged parole violation at the revocation hearing. Helton

v. Ohio Adult Parole Auth. (June 26, 2001), Franklin App. No. 00AP–1108, 2001 WL

709946. This principle was recognized in Morrissey, supra, 408 U.S. at 490, 92 S.Ct.

2593, 33 L.Ed.2d 484, wherein the United States Supreme Court stated that “[i]f it is

determined that petitioners admitted parole violations to the Parole Board, as respondents

contend, and if those violations are found to be reasonable grounds for revoking parole

under state standards, that would end the matter.” Wilkins v. Timmerman-Cooper, United
States District Court, S.D. Ohio, Case No. 2:06-cv-00027, 2006 WL 3762122(Dec. 20,

2006), at *7.

       {¶29} In the case at bar, Fears admitted two of the three violations thus

establishing minimum due process requirements for those violations. In addition,

                Moreover, once a revocation hearing satisfies minimum due process

       requirements, the decision to deny parole is not subject to judicial review

       unless parole is revoked for a constitutionally impermissible reason. Helton,

       supra, citing Mayrides v. Ohio Adult Parole Auth. (Apr. 30, 1998), Franklin

       App. No. 97APE08–1035, 1998 WL 211923. Under R.C. 2967.15, the Ohio

       Adult Parole Authority is authorized to revoke parole when the parolee has

       violated the terms and conditions of his parole. State ex rel. Nedea v.

       Capots (1988), 40 Ohio St.3d 74, 75, 531 N.E.2d 707. Therefore, Wilkins’s

       four parole violations were sufficient grounds for the revocation of his

       parole.

Wilkins v. Wilkinson, 157 Ohio App.3d 209, 2004-Ohio-2530, 809 N.E.2d 1026, ¶22.

       {¶30} After finding that the defendant has violated community control sanctions,

the sentencing court may: (1) extend the period of the same community control sanction,

but not beyond the five-year maximum; (2) impose a more restrictive community control

sanction for any remaining period of time up to the five-year maximum; or (3) cancel the

community control sanction and impose a definite sentence of imprisonment within the

range allowed for the offense under RC 2929.14(A). R.C. 2929.15(C).

       {¶31} In the case at bar, by Fears’ own admissions the trial court had substantial

proof that Fears violated the community control sanctions. Fears had previously violated
community control sanctions and the trial court modified those sanctions. Under R.C.

2929.15(C), the trial court had authority to cancel the community control sanctions and

impose a prison sentence, even if it found Fears had not violated Count 1.

       {¶32} Fears has failed to demonstrate a reasonable probability that any error

resulted in prejudice that affected the outcome of the revocation proceedings. The trial

court neither lost his way nor created a miscarriage of justice in convicting and sentencing

Fears for violating his community control sanctions.

       CONCLUSION.

       {¶33} Fears’ sole assignment of error is overruled. The judgment of the Richland

County Court of Common Pleas is affirmed.


By Gwin, P.J.,

Delaney, J., and

Wise, Earle, J., concur
