[Cite as State v. Birt, 2016-Ohio-3478.]




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

 STATE OF OHIO                                   :
                                                 :  Appellate Case No. 2015-CA-32
          Plaintiff-Appellee                     :
                                                 :  Trial Court Case No. 2014-CR-191
 v.                                              :
                                                 :  (Criminal Appeal from
 JEFFREY L. BIRT, II                             :   Common Pleas Court)
                                                 :
          Defendant-Appellant                    :
                                                 :
                                            ...........
                                           OPINION
                              Rendered on the 17th day of June, 2016.
                                            ...........

KEVIN S. TALEBI, Atty. Reg. No. 0069198, Champaign County Prosecutor’s Office, 200
North Main Street, Urbana, Ohio 43078
      Attorney for Plaintiff-Appellee

REBEKAH S. SINNOTT, Atty. Reg. No. 0072093, Post Office Box 655, Urbana, Ohio
43078
      Attorney for Defendant-Appellant

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

FAIN, J.

        {¶ 1} Defendant-appellant Jeffrey L. Birt, II, appeals from a judgment of the trial

court finding him to have violated conditions of community control sanctions, revoking his
                                                                                          -2-


community control sanctions, and imposing a 12-month prison sentence. Birt’s assigned

appellate counsel has filed a brief under the authority of Anders v. California, 386 U.S.

738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), reflecting that she could find no potential

assignments of error having arguable merit. Neither can we. Accordingly, the judgment

of the trial court is Affirmed.



                     I. The Community Control Sanctions Violations

       {¶ 2} Birt became subject to community control sanctions as a result of his January

2, 2015, sentence for one count of Possession of Heroin, in violation of R.C.

2925.11(A)(C)(6)(a), a felony of the fifth degree, and one count of Possession of

Marijuana, in violation of R.C. 2925.11(A)(C)(3)(a), a minor misdemeanor, to which he

pled guilty. The conditions of his community control sanctions included: (1) that he

would obey federal, state, and local laws and ordinances, including those relating to illegal

drug use and registration with authorities; (2) that he would not purchase, possess, use,

or have under his control any narcotic drug or other controlled substance or illegal drugs,

including any instrument, device, or other object used to administer drugs or to prepare

them for administration, unless lawfully prescribed for him by a licensed physician, that

he agreed to inform his supervising officer promptly of any such prescription, and that he

agreed to submit to drug testing if required; and (3) that he would not be in contact with,

or in the presence of, Spring Elizabeth Smith.

       {¶ 3} On the morning of July 5, 2015, while Birt was subject to the community

control sanctions, he was a passenger in a car that was subject to a traffic stop.

Sergeant David Reese, of the Urbana Police Department, obtained Birt’s consent to a
                                                                                          -3-


search of his person. Sergeant Reese found cocaine and heroin in Birt’s pockets. He

also found marijuana near the rear passenger seat which Birt had been occupying.

Spring Elizabeth Smith was also a passenger in the car.

       {¶ 4} Earlier, on May 16, 2015, Urbana Police Officer Robbie Evans noticed Birt

having difficulty. “[P]eople had called and said that [Birt] was walking in the middle of the

street.” “His eyes were rolled back. He could hardly walk.” Police Officer Brandon

McCain, who was at the scene, concluded, based on his experience and training, that Birt

had a heroin overdose. Evans notified his supervisor and called for the Urbana EMS.

The medics came and treated Birt, who had not been responsive to Evans. The medics

administered Narcan, commonly used to treat heroin overdoses, and took Birt to the

emergency room, where he became more aware of where he was “[a]fter a while.” Birt

later told Officer McCain that he had used OxyContin at the time of the May 16th incident,

and that it had almost cost him his life.



                              II. The Course of Proceedings

       {¶ 5} The State served notice of alleged violations of the conditions of Birt’s

community control sanctions. Following a hearing, the trial court found that Birt had

violated conditions pertaining to illegal drug possession or use and pertaining to his not

having any contact with Spring Elizabeth Smith. The trial court vacated the community

control sanctions, and imposed a sentence that included a 12-month prison sentence,

fines of $250 and $150, and an order to pay court costs, and his court-appointed counsel

fees. The trial court found, based on the pre-sentence investigation report, that Birt had

the ability to pay the fines, costs, and counsel fees, and set a payment schedule of $50
                                                                                         -4-


per month.



       {¶ 6} Birt appeals. His assigned counsel has filed an Anders brief, reflecting her

inability to find potential assignments of error having arguable merit. By entry dated

January 29, 2016, we afforded Birt the opportunity to file his own, pro se brief within 60

days. He has not done so.



             III. No Potential Assignments of Error Having Arguable Merit Found

       {¶ 7} In her brief, counsel discusses two potential assignments of error that she

considered. The first of these is that the trial court based its revocation of the community

control sanctions, at least in part, upon hearsay testimony. She cites State v. Mingua,

42 Ohio App.2d 35, 327 N.E.2d 791 (10th Dist. 1974), for the proposition that although

probation revocation hearings permit consideration of evidence that would not be

admissible at trial, a revocation based solely upon hearsay violates the defendant’s right

of confrontation. As counsel notes, the violations found by the trial court do not depend

solely upon hearsay testimony.       The State’s witnesses offered direct, unrebutted

testimony concerning Birt’s drug and no-contact violations on July 5, 2015.

       {¶ 8} Furthermore, as counsel also notes, there was no objection to the officers’

testimony relating to the May 16, 2015, incident, so that the error, if any, would be

governed by the plain-error standard of review.       In view of July 5th violations, we

conclude that it is unlikely that any error in the admission of testimony concerning the May

16th incident had any impact on the outcome of the hearing. Consequently, we agree

with counsel’s assessment that this potential assignment of error has no arguable merit.
                                                                                            -5-


         {¶ 9} Next, counsel considers possible error in the admission of Birt’s statements

to Officer McCain, who had taken Birt from jail to a hospital for treatment of a self-inflicted

injury, concerning Birt’s illegal drug use, based upon violation of Birt’s rights under

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Again, as

counsel notes, there was no objection to this testimony. And again, in view of the proper

testimony of the police officers concerning Birt’s violations on July 5th, we conclude that

any error in the admission of Birt’s statements to McCain likely had no impact on the

outcome of the hearing, so that this potential assignment of error, also, has no arguable

merit.

         {¶ 10} In the appellate docket statement, Birt indicates the imposition of the

maximum, 12-month sentence as a possible basis for appeal. Birt received a generous

initial disposition of the multiple drug charges with which he was indicted. First, he was

allowed to plead guilty to one felony drug charge and one minor misdemeanor marijuana

charge, with two other felony drug charges being dismissed. 1               Then, despite a

substantial record of previous felony convictions, including four convictions for which he

had served prison sentences, the fact that he committed the offenses to which he pled

guilty while he was on probation for Theft, and the fact that he had been found to have

committed a probation condition violation less than a year earlier, the trial court imposed

community control sanctions, rather than sending Birt back to prison.

         {¶ 11} Within a few months after having been given this opportunity at

rehabilitation, Birt committed the multiple community control violations that are the subject



1 The pre-sentence investigation report suggests that there was substantial evidence
for the two felony drug charges that were dismissed.
                                                                                          -6-


of this appeal. That suggests to us that Birt was at a high risk for recidivism, as the trial

court found. Accordingly, we find that no reasonable argument can be made that Birt’s

12-month prison sentence is clearly and convincingly unsupported by the record.



                                         IV. Conclusion

       {¶ 12} After independently reviewing the entire record, as required by Anders v.

California, supra, we find no potential assignments of error having arguable merit.

Accordingly, the judgment of the trial court is Affirmed.


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



FROELICH and WELBAUM, JJ., concur.



Copies mailed to:


Kevin S. Talebi
Rebekah S. Sinnott
Jeffrey L. Birt, II
Hon. Nick A. Selvaggio
