[Cite as State v. Bailey, 2016-Ohio-494.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103114




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                  CHARLES R. BAILEY
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-14-591851-A

        BEFORE: Keough, P.J., Boyle, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: February 11, 2016
ATTORNEY FOR APPELLANT

Sheila Sexton
P.O. Box 1206
Willoughby, Ohio 44096


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Kelly N. Mason
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:

       {¶1}   In   this   appeal   from     a   community    control   revocation   hearing,

defendant-appellant, Charles Bailey, challenges his guilty plea and the revocation of

community control. For the reasons that follow, we affirm.

       {¶2} In December 2014, Bailey was named in a four-count indictment charging

him with two counts of theft, in violation of R.C. 2913.02(A)(1), and two counts of

forgery, in violation of R.C. 2913.31(A)(2). All charges were classified as fifth-degree

felonies, and the victim of the offenses was Bailey’s mother.

       {¶3} In January 2015, Bailey pleaded guilty to one count of theft and forgery. At

sentencing, the trial court found Bailey amenable to community control sanctions and

sentenced him to be supervised by the adult probation department for a period of five

years. The court ordered the following conditions:          (1) complete an inpatient drug

program, (2) report weekly to drug treatment and be subject to weekly drug testing, (3)

pay the monthly supervision fee, (4) pay restitution to the victim in the amount of $275.

Bailey was advised at sentencing that failure to abide by the terms and conditions of

community control would result in a 24-month prison sentence. Bailey did not seek

appeal to challenge his plea or sentence.

       {¶4} In May 2015, the trial court scheduled a community control revocation

hearing after receiving a report from Bailey’s probation officer that Bailey allegedly left

the inpatient drug rehabilitation facility without permission and went to his mother’s
house. During the revocation hearing, Bailey admitted to the violations, specifically that

he left a note for his mother expressing his desire that she die.

       {¶5} The trial court found Bailey in violation of the terms and conditions of

community control and ordered that Bailey serve 24 months in prison. Bailey now

appeals, raising two assignments of error for our review.

                                           I. Plea

       {¶6} In his first assignment of error, Bailey contends that the trial court erred in

accepting a plea that was not supported by the evidence. Specifically, he contends that

the value of the stolen items at issue in the case do not support the degree of the offense

he was charged with and the sentence imposed. Principles of res judicata, however,

prohibit Bailey from challenging his plea, the level of the offense, and the sentence

imposed.

       {¶7} Res judicata bars the further litigation in a criminal case of issues that were

or could have been raised previously in a direct appeal.            State v. Leek, 8th Dist.

Cuyahoga No. 74338, 2000 Ohio App. LEXIS 2909, *3 (June 21, 2000), citing State v.

Perry , 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. The

appeal taken in this case is from the revocation hearing. Bailey could have raised any

issues pertaining to his plea on direct appeal, but did not do so. Accordingly, his

challenges in his first assignment of error are barred by res judicata, and therefore

overruled.

                                 II. Due Process Violation
       {¶8} In his second assignment of error, Bailey contends that the trial court erred by

failing to follow probation violation procedural due process and reaching a decision not

supported by the evidence.

       {¶9}   Because the revocation of probation entails a serious loss of liberty, a

probationer must be accorded due process at the revocation hearing.              Gagnon v.

Scarpelli, 411 U.S. 778, 781, 93 S.Ct.1756, 36 L.Ed.2d 656 (1973); State v. Miller, 42

Ohio St.2d 102, 326 N.E.2d 259 (1975), syllabus. A person subject to community

control may be punished for a violation of conditions of community control, but only if

certain due process rights are observed. See Crim.R. 32.3(A). The minimal due process

requirements are:

       (1) written notice of the claimed violations; (2) disclosure of evidence
       against him; (3) opportunity to be heard and to present witnesses and
       documentary evidence; (4) the right to confront and cross- examine adverse
       witnesses; (5) a “neutral and detached” hearing body; and (6) a written
       statement by the factfinder of the evidence relied upon and reasons for
       revocation.

State v. Davis, 8th Dist. Cuyahoga No. 93959, 2010-Ohio-5126, ¶ 26, citing Miller at 104.

       {¶10} Bailey contends that he was denied due process when he did not receive (1)

written notice of the violation, (2) adequate time to prepare and defend the allegations,

and (3) an opportunity to subpoena or confront witnesses. The record reflects that Bailey

did not object or raise these issues at the time of the revocation hearing. Failure to timely

object to a due process violation during a probation violation hearing waives error. State

v. Simpkins, 8th Dist. Cuyahoga No. 87131, 2006-Ohio-3496, ¶ 12, citing State v.

Henderson, 62 Ohio App.3d 848, 853, 577 N.E.2d 710 (5th Dist.1989).
       {¶11} The record reflects that Bailey waived the probable cause hearing on the

violation and admitted to the violation. (Tr. 27.) Furthermore, Bailey was afforded an

opportunity to be heard about the circumstances surrounding the alleged violations, and

was able to question his supervising probation officer.       The trial court also made

adequate inquiry into the allegations and questioned both Bailey and the probation officer

prior to making any decision on revocation. Accordingly, we find no due process errors.

       {¶12} The record also contains substantial and competent evidence to support the

trial court’s decision to revoke Bailey’s term of community control. The evidentiary

burden of proof at a violation or revocation hearing is different from that of a criminal

trial. State v. Harian, 8th Dist. Cuyahoga No. 97269, 2012-Ohio-2492, ¶ 17. The trial

court need only find that substantial evidence of a violation of a term of community

control exists.   Id., citing State v. Wallace, 7th Dist. Mahoning No. 05 MA 172,

2007-Ohio-3184, ¶ 16. A court’s finding of a violation based on the evidence is subject

only to the judge’s discretion. State v. Jones, 8th Dist. Cuyahoga No. 58423, 1991 Ohio

App. LEXIS 2098, *9 (May 9, 1991), citing State v. Theisin, 167 Ohio St. 119, 124, 146

N.E.2d 865 (1957).

       {¶13} In this case, the trial court found that Bailey violated community control

orders by leaving his inpatient drug treatment facility and for having contact with this

mother, the victim in this case. The court considered that Bailey’s contact with his

mother may not have been physical, but that the threatening and upsetting nature of the

letter he wrote to her was nonetheless contact.      Moreover, Bailey admitted to the
violation and on multiple instances accepted responsibility for his actions. Therefore, the

court’s decision to revoke and terminate Bailey’s term of community control and impose

a prison sentence is supported by the record.        The second assignment of error is

overruled.

      {¶14} Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. Case remanded to the trial court for

execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, PRESIDING JUDGE

MARY J. BOYLE, J., and
SEAN C. GALLAGHER, J., CONCUR
