State v. BrownState v. Brown
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Joseph Macejko, Youngstown City Prosecutor, 26 S. Phelps Street, Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Richard J. Hura, WPA Memorial Building, 132 S. Broad Street, Suite 204B, Canfield, Ohio 44406
OPINION
WAITE, J.
{¶2} Appellant was issued a traffic citation on July 25, 2009, charging him with driving under suspension, failure to observe a traffic control device, and fleeing and eluding. On September 9, 2009, Appellant appeared with court-appointed counsel and entered a
{¶3} On December 29, 2009, Appellant‘s probation officer filed a notification of probation violation, alleging that Appellant had not paid his financial sanction, and had failed to report for probation, among other probation violations. A probable cause hearing was held on January 28, 2010. Appellant, through counsel, stipulated to the probation violation. On January 28, 2010, the trial court revoked Appellant‘s
{¶4} On May 24, 2010, appellate counsel filed a motion to withdraw as counsel and submitted a no merit brief. Appellant was given 30 days to file any pro se assignments of error, and nothing more has been filed. Transcripts were filed of the original conviction and sentence, and the probation violation proceedings.
{¶5} Counsel is asking to withdraw pursuant to Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, and pursuant to this Court‘s ruling in Toney, supra. ” ‘It is well settled that an attorney appointed to represent an indigent criminal defendant on his or her first appeal as of right may seek permission to withdraw upon a showing that the appellant‘s claims have no merit. To support such a request, appellate counsel must undertake a conscientious examination of the case and accompany his or her request for withdrawal with a brief referring to anything in the record that might arguably support the appeal. The reviewing court must then decide, after a full examination of the proceedings, whether the case is wholly frivolous.’ ” (Citations omitted.) State v. Odorizzi (1998), 126 Ohio App.3d 512, 515, 710 N.E.2d 1142.
{¶6} In Toney, we set forth the procedure to be used when counsel of record determines that an indigent‘s appeal is frivolous:
{¶7} “3. Where a court-appointed counsel, with long and extensive experience in criminal practice, concludes that the indigent‘s appeal is frivolous and
{¶8} “4. Court-appointed counsel‘s conclusions and motion to withdraw as counsel of record should be transmitted forthwith to the indigent, and the indigent should be granted time to raise any points that he chooses, pro se.
{¶9} “5. It is the duty of the Court of Appeals to fully examine the proceedings in the trial court, the brief of appointed counsel, the arguments pro se of the indigent, and then determine whether or not the appeal is wholly frivolous.
{¶10} “6. Where the Court of Appeals makes such an examination and concludes that the appeal is wholly frivolous, the motion of an indigent appellant for the appointment of new counsel for the purposes of appeal should be denied.
{¶11} “7. Where the Court of Appeals determines that an indigent‘s appeal is wholly frivolous, the motion of court-appointed counsel to withdraw as counsel of record should be allowed, and the judgment of the trial court should be affirmed.” Id. at syllabus.
{¶12} The question on appeal is whether there are any non-frivolous issues to be reviewed regarding the revocation of Appellant‘s community control sanction. The community control sanction was one year of supervised probation, and the punishment imposed on revocation of community control was 180 days in jail. Because a community control revocation hearing is not a criminal trial, the state does not have to establish a violation with proof beyond a reasonable doubt. State v. Delaine, 7th Dist. No. 08 MA 257, 2010-Ohio-609, ¶14; State v. Hylton (1991), 75 Ohio App.3d 778, 782, 600 N.E.2d 821. Instead, the prosecution must present substantial proof that a defendant violated the terms of his community control sanction. Id. at 782. Unless the decision amounts to an abuse of discretion, a reviewing court will not reverse the trial court‘s decision revoking community control. An abuse of discretion implies more than an error of law or judgment; it connotes that the trial court‘s attitude was unreasonable, arbitrary, or unconscionable. State v. Maurer (1984), 15 Ohio St.3d 239, 253, 473 N.E.2d 768.
{¶13}
{¶14} Revocation of probation implicates two due process requirements. The trial court is first required to conduct a preliminary hearing to determine whether there is probable cause to believe that the defendant has violated the terms of his probation. Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656; Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484. In this case, there was a hearing and Appellant conceded that probable cause existed for the probation violation.
{¶15} Secondly, the court is required to hold a final hearing to determine whether probation should be revoked. At the final revocation hearing, the state must: (1) provide the probationer with written notice of the alleged violations of probation;
{¶16} In this case, Appellant was notified of the alleged probation violations and was given a hearing. Appellant was represented by counsel at the hearing. Appellant stipulated to probable cause for the probation violations and openly admitted that he committed the violations.
{¶17} When imposing a community control sanction for a misdemeanor, the court is required at sentencing to inform the defendant of the jail term that may be imposed for violation of any of the conditions of community control.
{¶18} Counsel raises the possibility that there might be a claim of ineffective assistance of counsel. In order to demonstrate ineffective assistance of counsel, a defendant must show, first, that counsel‘s performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant
{¶19} There are no possible issues for further review in this case. Appellant was notified of the probation violation, a hearing took place, and the court listened to Appellant‘s excuses for not abiding by the terms of probation. The court then imposed the six-month jail term that was described at the original sentencing hearing. The judgment entry of January 28, 2010, correctly reflects that the maximum jail term of 180 days was imposed for the community control violation. There is no abuse of discretion indicated by the court‘s actions, and there are no non-frivolous issues to review on appeal. Because there are no meritorious issues for appeal, we find that this appeal is wholly frivolous. Counsel‘s motion to withdraw is granted and the judgment of the trial court is affirmed.
Vukovich, P.J., concurs; see concurring opinion.
{¶20} I write separately to voice my concern with the situation before us where an indigent traffic defendant is jailed for 180 days because he violated a condition of probation wherein he was to obtain employment for six months. While I recognize that some courts have upheld such a condition as within a court‘s broad discretionary powers, see, e.g., State v. Owens, (1978), 78 Ohio App. 374, I am of the opinion that such a requirement negates statutory requirements concerning an indigent defendant‘s nonpayment of any monetary fine imposed by the trial court.
{¶21}
{¶22} By putting an indigent defendant on probation with a condition that he obtain employment, one of two things will happen. If the offender obtains employment, he most likely will have the ability to pay a fine, and could be jailed upon nonpayment. If the offender does not obtain employment, then the offender could be jailed on a probation violation without any reference to or compliance with the safeguards set out in the aforementioned
{¶23} Here, however, the aforementioned issue was not timely raised by appellant. Objectionable terms or conditions of probation should be filed within thirty days of the judgment which imposed them. Appellant‘s failure to do so here constitutes waiver. Accordingly, I reluctantly am forced to concur with the opinion of my colleagues which affirmed the decision of the trial court.