State v. Brown
2013 Ohio 2756
Ohio Ct. App.2013Background
- Brown pled guilty in July 2011 to theft in 2007 C.P. No. 4376 and to theft, receiving stolen property, and forgery in 2008 C.P. No. 1603, and was placed on five-year community control with a MonDay program and no-use conditions on illegal drugs, drugs of abuse, or alcohol.
- Each case included a no-breaks status, employment efforts, and restitution and costs, with revocation conditions for violations.
- In June 2012 a notice of community-control sanctions revocation was filed after Brown admitted to taking Vicodin without a prescription on May 25, 2012 and failing to obtain verifiable employment or pay restitution.
- At an August 1, 2012 revocation hearing, Brown admitted the Vicodin usage; counsel explained dental issues and subsequent prescription, while noting other purported barriers to employment.
- The trial court found violations proven, revoked the community-control sanctions, and sentenced Brown to consecutive 12-month terms for the 2008 CR 1603 counts and a concurrent 12-month term for the 2007 CR 4376 count.
- Brown timely appealed, challenging trial counsel’s effectiveness and the failure to merge allied offenses, as well as the lack of a preliminary probable-cause revocation hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance and merger failure | Brown argues counsel failed to request a hearing and to advocate merger. | Brown contends counsel provided deficient representation and merger was appropriate. | First and second assignments overruled; no ineffective assistance or plain-error merger. |
| Allied offenses merger without a hearing | Brown contends offenses related to check 5769 and related 4418 should merge. | Brown asserts merger was required and the court erred in not merging. | No plain error; offenses were not allied and did not merge; affirmed against merger randomization. |
| Preliminary probable-cause revocation hearing | Brown claims denial of a preliminary probable-cause hearing violated due process. | Brown argues waiver of a hearing and prejudice from lack of a preliminary hearing. | Third assignment overruled; waiver shown and no prejudice from lack of preliminary hearing. |
Key Cases Cited
- State v. Johnson, 128 Ohio St.3d 153 (2010-Ohio-6314) (tests when offenses are allied by considering conduct and same conduct)
- State v. Jackson, 2012-Ohio-2335 (2d Dist. Montgomery No. 24430) (burden on defendant to prove entitlement to merger under R.C. 2941.25)
- State v. Kiser, 2009-Ohio-1337 (5th Dist. Tuscarawas No. 2008 AP 030014) (preliminary revocation hearing prejudice analysis)
- State v. Miller, 45 Ohio App.2d 301 (1975) (defendant not prejudiced by absence of preliminary hearing in probation revocation)
- State v. Marvin, 134 Ohio App.3d 63 (1999) (reaffirmed prejudice requirement for missing preliminary hearing)
- Gagnon v. Scarpelli, 411 U.S. 778 (1973) (entitled to both preliminary and final revocation hearings)
- Morrissey v. Brewer, 408 U.S. 471 (1972) (probable-cause hearing requirement in probation revocation)
- Bradley, 42 Ohio St.3d 136 (1989) (Strickland standard adopted for ineffective assistance review in Ohio)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)