[Cite as State v. Burdette, 2011-Ohio-4425.]


                                        COURT OF APPEALS
                                      MORROW COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :      JUDGES:
                                               :
                                               :      Hon. Patricia A. Delaney, P.J.
                        Plaintiff-Appellee     :      Hon. Sheila G. Farmer, J.
                                               :      Hon. John W. Wise, J.
-vs-                                           :
                                               :     Case No. 10-CA-9
ROBERT J. BURDETTE, JR.                        :
                                               :
                                               :
                       Defendant-Appellant     :      OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Morrow County Court of
                                                   Common Pleas Case Nos. 08-CR-82 and
                                                   08-CR-217


JUDGMENT:                                          AFFIRMED

DATE OF JUDGMENT ENTRY:                            August 30, 2011


APPEARANCES:

For Plaintiff-Appellee:                              For Defendant-Appellant:

CHARLES HOWLAND 0020765                               MICHAEL C. HOAGUE 0024771
DAVID HOMER 0030870                                   17 Carriage Drive
Morrow County Prosecuting Attorney                    Delaware, Ohio 43015
60 East High Street
Mount Gilead, Ohio 43338


Delaney, P.J.

        {¶1}     Defendant-Appellant, Robert Burdette, appeals from the judgment of the

Morrow County Court of Common Pleas, finding him guilty of violating conditions of his
Intervention in Lieu of Conviction (ILC) agreement.       The State of Ohio is Plaintiff-

Appellee.

       {¶2}   Appellant was initially charged in Morrow County Common Pleas Court

with one count of possession of drugs, in violation of R.C. 2925.11, a felony of the fifth

degree. On June 8, 2008, he filed a motion seeking intervention in lieu of conviction

(ILC). A plea agreement was reached wherein Appellant was to receive ILC and a

temporary order was put in place at the plea hearing on October 23, 2008. Appellant’s

guilty plea to Possession of Drugs, a felony of the fifth degree was journalized on

November 25, 2008. The court reserved sentencing and placed Appellant under control

of the Morrow County Probation Department for at least one year.

       {¶3}   Specific conditions were placed on Appellant as part of his ILC

agreement. He was required to complete a Community Based Correctional Facility

Program (CBCF), the Ashland County ACCADA drug court program, and abide by their

recommended follow-up treatment. He would have to enter a maintenance program of

at least one year following his release from CBCF. He would also have to perform up to

500 hours of community service at the discretion of the probation department.

       {¶4}   Appellant successfully completed CBCF and began reporting to his

probation officer in April, 2009. He signed general conditions of probation that included,

among other things, a provision that he not use any illegal drugs or prescriptions not

lawfully prescribed to him. He was also required to submit to random drug testing at the

request of his probation officer.

       {¶5}   On November 2, 2009, Appellant was required to take such a drug test by

submitting a urine sample, and the redi-strip test indicated that Appellant tested positive
for benzodiazepines, commonly known as Xanax. Appellant admitted to his probation

officer, Chris Miranda, that he had taken a Xanax and it was not prescribed to him. The

urine sample was then sent to an outside lab for further testing and verification.

       {¶6}   Based on the information received from Miranda, the Morrow County

Prosecutor’s Office filed a motion to terminate the ILC agreement.

       {¶7}   The matter came for a hearing on February 4, 2010, and the trial court

found that Appellant had violated his agreement.        The court based its decision on

Appellant’s admission of guilt to Miranda as well as the redi-strip test. At that time, the

results from the independent laboratory were not available.

       {¶8}   At a sentencing hearing on March 30, 2010, the court found Appellant

guilty pursuant to the ILC agreement of one count of possession of drugs, a felony of

the fifth degree, and sentenced Appellant to a prison term of 11 months, to be served

concurrently to sentences for similar crimes in Ashland and Richland counties. The

court suspended the sentence and ordered Appellant to be placed on three years of

community control sanctions.

       {¶9}   It is from that conviction that Appellant now appeals and raises five

Assignments of Error:

       {¶10} “I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN

REVOKING APPELLANT’S INTERVENTION IN LIEU OF CONVICTION BECAUSE

THE COURT NO LONGER HAD JURISDICTION OVER THE APPELLANT.

       {¶11} “II.   APPELLANT WAS DENIED DUE PROCESS OF LAW IN THE

REVOCATION OF HIS INTERVENTION IN LIEU OF HIS CONVICTION IN VIOLATION

OF HIS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO

CONSTITUTION.

     {¶12} “III.    THE TRIAL COURT ERRED AND COMMITTED AN ABUSE OF

DISCRETION     IN    REVOKING     DEFENDANT’S   INTERVENTION   IN   LIEU    OF

CONVICTION AND THEREBY VIOLATED APPELLANT’S RIGHTS UNDER THE

FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.

     {¶13} “IV. THE TRIAL COURT’S FINDING AT THE REVOCATION HEARING

THAT APPELLANT VIOLATED A CONDITION OF HIS INTERVENTION IN LIEU OF

CONVICTION WAS BOTH AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE

AND NOT SUPPORTED BY SUFFICIENT EVIDENCE, IN VIOLATION OF THE DUE

PROCESS     CLAUSE     OF   THE    FOURTEENTH   AMENDMENT      TO   THE    U.S.

CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.

     {¶14} “V. THE APPELLANT’S FEDERAL AND STATE CONSTITUTIONAL

RIGHTS TO DUE PROCESS, EQUAL PROTECTION, FUNDAMENTAL FAIRNESS

AND THE EFFECTIVE ASSISTANCE OF COUNSEL WERE VIOLATED WHEN THE

STATE FAILED TO DISCLOSE AND WITHHELD THE RESULTS OF A LABORATORY

TEST THAT WAS FAVORABLE TO APPELLANT AND MATERIAL TO GUILT IN THAT

IT REFUTED THE RESULTS OF THE REDI-STRIP TEST THAT THE STATE RELIED

ON IN SUPPORT OF ITS MOTION TO TERMINATE APPELLANT’S INTERVENTION

IN LIEU OF CONVICTION.”

                                       I.
       {¶15} In Appellant’s first assignment of error, he argues that the trial court erred

in revoking his Intervention in Lieu of Conviction (ILC) because the court no longer had

jurisdiction over Appellant.

       {¶16} Specifically, Appellant references R.C. 2951.041, which provides, in

pertinent part:

       {¶17} “(E) If the court grants an offender's request for intervention in lieu of

conviction and the court finds that the offender has successfully completed the

intervention plan for the offender, including the requirement that the offender abstain

from using drugs and alcohol for a period of at least one year from the date on which

the court granted the order of intervention in lieu of conviction and all other terms and

conditions ordered by the court, the court shall dismiss the proceedings against the

offender. Successful completion of the intervention plan and period of abstinence under

this section shall be without adjudication of guilt and is not a criminal conviction for

purposes of any disqualification or disability imposed by law and upon conviction of a

crime, and the court may order the sealing of records related to the offense in question

in the manner provided in sections 2953.31 to 2953.36 of the Revised Code.”

       {¶18} Of additional relevance, however, is R.C. 2951.041(D), which provides:

       {¶19} “(D) If the court grants an offender's request for intervention in lieu of

conviction, the court shall place the offender under the general control and supervision

of the county probation department, the adult parole authority, or another appropriate

local probation or court services agency, if one exists, as if the offender was subject to a

community control sanction imposed under section 2929.15, 2929.18, or 2929.25 of the

Revised Code. The court shall establish an intervention plan for the offender. The terms
and conditions of the intervention plan shall require the offender, for at least one year

from the date on which the court grants the order of intervention in lieu of conviction, to

abstain from the use of illegal drugs and alcohol, to participate in treatment and

recovery support services, and to submit to regular random testing for drug and alcohol

use and may include any other treatment terms and conditions, or terms and conditions

similar to community control sanctions, which may include community service or

restitution, that are ordered by the court.” (Emphasis added).

       {¶20} The trial court held a hearing on February 4, 2010, and found that

Appellant had violated his ILC conditions by testing positive for benzodiazepines on

November 2, 2009.      Appellant then admitted that he ingested illegal drugs to his

probation officer. The judgment entry from which Appellant was given ILC was filed on

November 25, 2008, as a result of an October 22, 2008, plea agreement. At the October

22, 2008, hearing, a temporary treatment order was put into place.

       {¶21} Appellant’s supervision under the Morrow County Probation Department

was not completed when he committed this infraction.           He had not completed the

Ashland County drug court program and follow up treatment, nor had he entered into a

maintenance program of not less than one year. Moreover, R.C. 2951.041(D) indicates

that ILC will last for at least one year, not exactly one year. As the other conditions of

Appellant’s ILC program had not been completed, and there is no termination of his ILC

for successful completion of conditions at the time that he committed the current

infraction, we find Appellant’s argument to be unpersuasive.

       {¶22} Appellant’s first assignment of error is overruled.

                                           II, III, & IV
       {¶23} In Appellant’s second and third assignments of error, he argues that his

due process rights were violated because his ILC was revoked and that the trial court

abused its discretion in revoking his ILC. In his fourth assignment of error, he argues

that the trial court’s finding of guilt was against the manifest weight of the evidence.

       {¶24} ILC is comparable to probation, and those who are placed on ILC are

monitored by the county probation department. R.C. 2951.041(D). In order to comport

with due process, a trial court must adhere to the following conditions when ruling on a

defendant’s guilt in relation to a probation violation: “(a) written notice of the claimed

violations; (b) disclosure of evidence against the defendant; (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 State v. Pavlich, 6th Dist. No. E-10-011, 2011-Ohio-802, at ¶25,

citing State v. McKeithen, 3rd Dist. No. 9–08–29, 2009–Ohio–84, ¶ 22, quoting State v.

Miller (1975), 42 Ohio 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.

       {¶25} A community control revocation is not a criminal trial; therefore, the State

is not required to establish a violation of the terms of community control “beyond a

reasonable doubt.” Pavlich, supra, ¶7, citing State v. Ryan, 3rd Dist. No. 14–06–55,

2007–Ohio–4743, ¶ 7, citing State v. Hylton (1991), 75 Ohio App.3d 778, 600 N.E.2d

821. Instead, the state must show “substantial” proof that the offender violated the terms

of his or her community control sanctions. Ryan, supra.
       {¶26} Substantial evidence is akin to a preponderance-of-the-evidence burden

of proof. State v. Ohly, 166 Ohio App.3d 808, 853 N.E.2d 675, 2006-Ohio-2353, at ¶18,

citing State v. Hayes (Aug. 10, 2001), 6th Dist. No. WD-00-075. Substantial evidence is

considered to consist of more than a mere scintilla of evidence, but somewhat less than

a preponderance. State v. Gomez (Feb. 18, 1994), 11th Dist. No. 93-L-080, citing Laws

v. Celebrezze (4th Cir., 1966), 368 F.2d 640, 642, and Marker v. Finch (D.C.Del.1971),

322 F.Supp. 905, 910, fn. 7.

       {¶27} “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. Bell (1990), 66 Ohio App.3d 52, 57, 583 N.E.2d 414.

Determination of the credibility of the witnesses is for the trier of fact. State v. Swiger

(1966), 5 Ohio St.2d 151, 156, 214 N.E.2d 417. A trial court's finding of a violation of

community control will not be disturbed on appeal absent an abuse of discretion.

Pavlich, supra. An abuse of discretion implies more than an error of law or judgment;

instead, it connotes that the trial court's attitude is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d

1140. When applying the abuse of discretion standard, an appellate court may not

simply substitute its judgment for that of the trial court. Id.

       {¶28} In the case at bar, Mr. Miranda testified that Appellant tested positive for

illegal drugs based on a redi-strip test. Appellant then admitted that he had taken a

Xanax that was not prescribed to him. Based on this evidence, the court found that

Appellant had violated the terms of his ILC program and revoked his ILC.
       {¶29} Appellant argues that because the test results from an outside agency

indicated negative results for drugs in Appellant’s system, he should have been allowed

to further argue the issue of Appellant’s guilt of the violation. Appellant also argues that

the prosecutor committed a violation by failing to disclose the results of this lab test prior

to the date of the sentencing hearing. In fact, the prosecutor represented that she did

not receive the report until March 30, 2010, the date of the sentencing hearing.

       {¶30} The trial court, over Appellant’s objection, refused to consider the lab

report as additional evidence. The court, in so doing, stated that it was basing its

finding on Appellant’s admission to taking illegal drugs and was not relying heavily on

the redi-strip test.

       {¶31} We do not find that Appellant has presented evidence of a due process

violation based on the proceedings in the trial court. Moreover, we do not find that the

trial court abused its discretion in finding Appellant guilty of violating his ILC conditions

and the court’s finding was not against the manifest weight of the evidence.

       {¶32} Appellant’s second, third, and fourth assignments of error are overruled.

                                                 V.

       {¶33} In Appellant’s fifth assignment of error, he argues that his due process

rights and equal protection rights were violated because he was not granted complete

discovery prior to his revocation hearing.

       {¶34} First, we would address Appellee’s contention that the transcript from

which it cites was prepared in violation of App. R. 9. We disagree.

       {¶35} Ohio App. R. 9 provides, in pertinent part:
       {¶36} “(A) * * * The original papers and exhibits thereto filed in the trial court, the

transcript of proceedings, if any, including exhibits, and a certified copy of the docket

and journal entries prepared by the clerk of the trial court shall constitute the record on

appeal in all cases. A videotape recording of the proceedings constitutes the transcript

of proceedings other than hereinafter provided, and, for purposes of filing, need not be

transcribed into written form. Proceedings recorded by means other than videotape

must be transcribed into written form. When the written form is certified by the reporter

in accordance with App. R. 9(B), such written form shall then constitute the transcript of

proceedings. When the transcript of proceedings is in the videotape medium, counsel

shall type or print those portions of such transcript necessary for the court to determine

the questions presented, certify their accuracy, and append such copy of the portions of

the transcripts to their briefs.* * *”

       {¶37} Appellant provided a transcript and certified that it was accurate pursuant

to App. R. 9(A). While it may have been more appropriate for Appellant to file the

transcript prior to filing his brief, the rule does not require this and Appellee could raise

any questions regarding the accuracy of the transcript to this court.

       {¶38} Turing to the issue of potential discovery noncompliance resulting in a

constitutional violation, we examine the rules of criminal procedure in Ohio. Crim. R.

32.3, which governs probation revocation hearings, does not expressly provide for a

right to discovery prior to the revocation hearing. Revocation of probation implicates

two due process requirements. The trial court is first required to conduct a preliminary

hearing to determine whether there is probable cause to believe that the defendant has

violated the terms of his probation. Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S.Ct.
1756, 36 L.Ed.2d 656; Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33

L.Ed.2d 484. At the hearing the trial court must comply with the terms set out in ¶15,

infra. Appellant was afforded each of these rights at his hearing.

       {¶39} Crim. R. 16 applies to criminal proceedings.          A probation revocation

hearing or as an extension, an ILC termination hearing, is not criminal in nature, and

therefore we hold that Crim. R. 16 is inapplicable to revocation hearings. See State v.

Parsons (Nov. 26, 1996), 2nd Dist. No. 96 CA 20, 1996 WL 665004.

       {¶40} Appellant argues that the State failed to timely disclose the results of an

outside lab result, indicating that Appellant tested negative for illegal drugs. To the

contrary, the record supports the finding that the State turned over the results of the test

the same day that it received the results, on March 30, 2010, the date of the sentencing

hearing.

       {¶41} When Appellant’s counsel requested that the court reconsider its decision

to find Appellant in violation of the terms of his ILC, the court declined to do so, stating,

”In terms of the violation itself, I’m not going to revisit. I haven’t seen a reason why I

should revisit. * * * This is separate from what we were doing at that [time] and I found

the defendant to be a violator. . . .there was an admission of use of an illegal substance

or substance that was not properly prescribed and therefore the violation and therefore

the revocation and so I’m not going to go back and do that again… [New evidence] is

not going to alter the Court. I just said to you I am not going back and reviewing.”

       {¶42} Finding no constitutional violation and moreover, no prejudice to

Appellant, we overrule his fifth assignment of error.

       {¶43} The judgment of the Morrow County Court of Common Pleas is affirmed.
By: Delaney, P.J.

Farmer, J. and

Wise, J. concur.



                                          HON. PATRICIA A. DELANEY



                                          HON. SHEILA G. FARMER



                                          HON. JOHN W. WISE


                    IN THE COURT OF APPEALS FOR MORROW COUNTY, OHIO

                              FIFTH APPELLATE DISTRICT

STATE OF OHIO                               :
                                            :
                    Plaintiff-Appellee      :
                                            :
                                            :
-vs-                                        :   JUDGMENT ENTRY
                                            :
ROBERT J. BURDETTE, JR.                     :
                                            :
                    Defendant-Appellant     :   Case No. 10-CA-9
                                            :




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Morrow County Court of Common Pleas is affirmed. Costs assessed to

Appellant.
_________________________________
HON. PATRICIA A. DELANEY


_________________________________
HON. SHEILA G. FARMER


_________________________________
HON. JOHN W. WISE
