State v. Sherouse, 2011 Ohio 3421

Indicted March 2010 for Theft under R.C. 2913.02(A)(1) in Montgomery County; pleaded guilty and received Community Control Sanctions (intensive probation up to 5 years, fees, drug/alcohol assessment, employment, 100 hours community service, abstinence from drugs/alcohol, etc.).
A termination entry dated August 31, 2010 expressly conditioned abstinence from illegal drugs and alcohol and other requirements; stated potential penalties include longer sanctions or prison if violated.
November 9, 2010 notice alleged violations; November 23, 2010 revocation hearing held with probation officer absent due to vacation; Officer Linda Toops testified from probation records about noncompliance.
Toops testified about unemployment verification failure, missed payments, incomplete drug/alcohol treatment, incomplete community service, and two Breathalyzer failures; Sherouse testified he had alcohol use and incomplete service hours.
Trial court found violations (alcohol use and incomplete service) and sentenced Sherouse to 12 months in prison; Sherouse appealed.
The appellate court affirmed the trial court’s order revoking community control and the sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Confrontation rights at revocation hearing were violated by absence of probation officer	Sherouse contends lack of opportunity to cross-examine officer violated due process	Sherouse argues admission of officer’s testimony without personal knowledge was error	Harmless error; testimony supported by officer’s personal knowledge and Sherouse’s admissions
No-alcohol condition as part of probation improper to impose on appeal	Sherouse claims no-alcohol condition was unrelated to rehabilitation	State contends issue unappealable because original sentence not challenged	Overruled; cannot challenge original no-alcohol condition on this appeal
Imposition of maximum 12-month prison term vs. statutory/constitutional constraints	Sherouse asserts court failed to make required findings for maximum sentence	State argues Foster severance allows maximum within range without findings	No abuse of discretion; sentence within range; findings not required following Foster

State v. Scott, 6 Ohio App.3d 39 (1982) (probation decision within court’s discretion)
State v. Richardson, 2006-Ohio-4015 (2006) (abuse of discretion standard for probation revocation)
State v. Picklesimer, 2007-Ohio-5758 (2007) (scope of appellate review for probation violations)
State v. Foster, 109 Ohio St.3d 1 (2006) (severed sentencing findings; maximum sentence may be imposed within range without findings)
State v. Kelly, 2005-Ohio-3178 (2005) (appealability of prior no-alcohol condition in initial sentence)