State v. Michael
2014 Ohio 754
Ohio Ct. App.2014Background
- In Sept. 2012 Roger W. Michael pled guilty to first-degree misdemeanor aggravated menacing; court imposed 90 days with 89 days suspended conditioned on no menacing/domestic violence, compliance with a protection order, and attendance at a court-ordered batterer’s treatment program (BIP).
- Michael attended an initial diagnostic assessment at the Center for Child and Family Advocacy but did not promptly schedule or attend treatment sessions; the Center closed the case for failure to contact it in January 2013.
- The State filed a motion (styled as a motion to show cause) on Jan. 15, 2013, seeking contempt and imposition of the suspended time for failure to comply with the BIP and a recommended psychological evaluation.
- The Center later readmitted Michael; he attended from late Feb. to March 28, 2013, but was described by staff as hostile, resistant, and unwilling to participate and was discharged. The Center recommended termination from the program.
- At the May 21, 2013 hearing the State presented the Center’s supervisor; Michael presented no evidence of proven psychological incapacity to comply. The trial court revoked the suspension and imposed the previously suspended 89 days.
- Michael appealed, raising three assignments: (1) abuse of discretion in revocation; (2) improper contempt procedure and failure to permit purge; (3) denial of allocution at revocation.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Michael) | Held |
|---|---|---|---|
| Whether the court properly revoked the suspended sentence for failure to comply with treatment | The State argued Michael violated the suspension conditions by failing to meaningfully participate in BIP; substantial evidence supported revocation | Michael argued he was unable to comply due to psychological issues and the Center’s failure to provide a psychological evaluation, so revocation was an abuse of discretion | Court: Revocation proper; State met the "substantial" evidentiary standard and trial court did not abuse discretion |
| Whether the proceeding required civil-contempt procedures (purge opportunity) and whether an 89-day jail term for first contempt was improper | State styled the motion as contempt but sought imposition of previously suspended time for violation of conditions | Michael argued the matter was civil contempt requiring a purge opportunity and statutory limits on contempt sanctions | Court: Proceeding was properly treated as a probation/community-control revocation (not contempt); contempt safeguards and statutory first-offense limits did not apply |
| Whether Michael was denied the right of allocution when suspended time was imposed at revocation | State did not assert allocution was required at revocation | Michael claimed Crim.R. 32 allocution right extends to reinstatement of previously imposed sentence at revocation | Court: Right of allocution is not required at probation/community-control revocation; no remand for resentencing |
Key Cases Cited
- State v. Bell, 66 Ohio App.3d 52 (5th Dist.) (probationer’s privilege rests on compliance; violations may support revocation)
- State v. Hylton, 75 Ohio App.3d 778 (4th Dist.) (revocation hearing requires less than proof beyond a reasonable doubt; substantial evidence suffices)
- State v. Bleasdale, 69 Ohio App.3d 68 (11th Dist.) (revocation improper where program, not probationer, caused noncompliance)
- State v. Scott, 6 Ohio App.3d 39 (2d Dist.) (revocation improper where defendant made good-faith efforts but lacked capacity)
- State v. Campbell, 90 Ohio St.3d 320 (Ohio 2000) (remedy for violation of Crim.R. 32 allocution is remand for resentencing)
- State v. Peagler, 76 Ohio St.3d 496 (Ohio 1996) (appellate courts typically will not consider issues not raised below)