STATE OF OHIO v. EVA E. FONSECA
No. 101174
Cоurt of Appeals of Ohio, Eighth Appellate District, County of Cuyahoga
January 29, 2015
2015-Ohio-306
Before: McCormack, J., Boyle, P.J., and Keough, J.
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101174
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
EVA E. FONSECA
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-574058-B
BEFORE: McCormack, J., Boyle, P.J., and Keough, J.
RELEASED AND JOURNALIZED: January 29, 2015
Brian R. McGraw
1370 Ontario Street
Suite 2000
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Melissa Riley
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
{¶1} Defendant-appellant, Eva Fonseca, appeals from her conviction. Finding no error in the proceedings below, we affirm the judgment of the trial court.
{¶2} On May 24, 2013, Fonseca was indicted with one count of drug pоssession, a felony of the fifth degree, in violation of
{¶3} The court imposed the following conditions: (1) refrain from illegal drug use; (2) avoid plaсes where drugs or alcohol are used, served, or sold; (3) complete a 12-step program for 90 days, in as many days, and have a verification sheet fully completed for every day, stating that if there’s a missing item or the court cannot read it, “it’s not a verified meeting and you have to gо to another meeting”; after 90 days, attend a 12-step program every other day, with Sundays off; (4) complete an intensive outpatient drug treatment program; (5) submit to random drug testing; (6) obtain employment within 30 days of completing the treatment program; (7) submit to a mental health assessment and cоmply with any conditions of the mental health center; (8) register with the child support enforcement agency; and (9) comply with the standard conditions of community control.
{¶4} Finally, the court advised Fonseca that if she complied with all of the conditions for two years, her case would be dismissed without a conviction. If, however, she violated the
{¶5} On January 29, 2014, a capias was issued for Fonseca for failure to report and for being discharged from a treatment facility. The court held a violation hearing on March 17, 2014.
{¶6} At the hearing, Fonseсa’s probation officer informed the court that Fonseca failed to report and she was still using. The probation officer advised the court that Fonseca tested positive for opiates on August 23, 2013, and August 30, 2013. On September 13, 2013, she submitted a urine sample that was “too dilute[d].” On November 20, 2013, Fоnseca failed to report, and she had not reported since October 16, 2013. The evidence demonstrated that Fonseca also failed to complete the 12-step AA program as ordered.
{¶7} There was some discussion at the hearing regarding Fonseca’s treatment rеgimen. The record shows that Fonseca attended an outpatient treatment facility, left the facility, and returned to the facility a short time thereafter. There was some confusion regarding whether the court ordered Fonseca to attend outpatient or inpatient treatment. The court believed that it had previously ordered inpatient treatment; however, the transcript demonstrates that outpatient treatment was ordered and Fonseca eventually completed the program.1
{¶9} Following the hearing, the trial court found that Fonseca had violated the terms and conditions of ILC, terminated the program, and found her guilty of drug possession. The court then placed Fonseca on community control for two years, with a new expiration of August 7, 2016, and advised Fonseca that should she violate her community control, the court will send her to prison for 12 months. The court also advised Fonseca of the conditions of community control, including attending AA meetings, properly completing AA verification paperwork, obtaining an AA sponsor, and avoiding contact with her codefendant or anyone engaging in illеgal activities. The court once again advised Fonseca of the consequences of violating the terms and conditions of her community control and stated, “If I see you again, you’re going to prison.”
Assignments of Error
I. The trial court denied the appellant her due process rights to a рreliminary hearing before a probation violation merits hearing went forward.
II. The merits hearing did not meet the minimum due process standards, denying appellant the right to have the probation violation allegations heard in a reliable and proper manner.
III. The trial court’s decision to violate and remove the appellant from [Intervention in Lieu of Conviction program] was against the manifest weight of the evidence.
Intervention in Lieu of Conviction
{¶10} In her assignments оf error, Fonseca advances an argument based upon the premise that the intervention in lieu of conviction program is essentially the same as probation, or community control, and is therefore afforded the same protections. We do not agree.
{¶11} It is not in disputе that the trial court granted Fonseca’s request for ILC, placed Fonseca in the program on August 7, 2013, and ordered that Fonseca be placed under the supervision of the probation department.
{¶12}
{¶13} The statute provides that if the offender successfully completes the intervention program, the trial сourt shall dismiss the proceedings against the offender without an
{¶14} This court has previously concluded that the intervention in lieu оf conviction program is not a form of community control or probation. Ingram at ¶ 13. In making this determination, we recognized that (1) the community control statutes of
{¶15} Fonseca contends that the trial court denied her due process rights because it did not hold a preliminary hearing prior to her violation hearing. Further, Fonseca contends that the violation hearing itself was not conducted in a proper procedural manner, citing Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). In Gagnon, the United States Supreme Court set forth the minimum due process requirements for the revocation of probation. Id. As we determined in Ingram, however, ILC is not probation. Ingram at ¶ 13. And
{¶16} Moreover, Fonseca did not request a preliminary hearing, nor did she object to not having one. See State v. Delaney, 11 Ohio St.3d 231, 233, 465 N.E.2d 72 (1984) (the failure to object to a lack of preliminary hearing waived any right to that hearing). Additionally, where a capias is issued, such as in this case, we presume it was issued based upon probable cause. Ingram, 8th Dist. Cuyahoga No. 84925, 2005-Ohio-1967, at ¶ 28.
{¶17} Therefore, where the trial court failed to hold a preliminary ILC violation hearing, and the offender never requested one, her due рrocess rights were not violated. Id. Fonseca’s first and second assignments of error are overruled.
{¶18} Fonseca also argues that the trial court’s decision to find her in violation and remove her from ILC was against the manifest weight of the evidence. We find this argument unpersuasive.
{¶19} We reviеw a trial court’s revocation of ILC for an abuse of discretion. State v. Zepeda, 6th Dist. Wood No. WD-13-003, 2014-Ohio-1311, ¶ 18; State v. Newsome, 5th Dist. Delaware No. 13 CAA 03 0014, 2013-Ohio-4587, ¶ 12; State v. Lingg, 2d Dist. Montgomery No. 2011 CA 8, 2011-Ohio-4543, ¶ 11. An abuse of discretion implies that the decision of the trial court was arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶20} Here, the trial court clearly outlined Fonseca’s ILC conditions on August 7, 2013. The conditions included avoiding illegal drugs, reporting to her probation officer, and attending a 12-step program and obtaining proper verification of her attendance. Fonseca indicated that she understood the conditions imposed and the consequences for viоlating the conditions.
{¶22} In light of the above, we cannot find the trial court abused its discretion when it terminated Fonseca’s intervention plan. Fonseca’s third assignment of error is overruled.
{¶23} In her fourth assignment of error, Fonseca argues that her trial attorney was ineffective in not raising the issue of competency at the final hearing. In support of her position, Fonseca claims that defense counsel’s failure to demand a preliminary hearing “may have resulted in Fonseca being unable to properly explain her actions and helped to contribute to the cоnfusion about what kind of drug treatment Fonseca was to receive * * *.” This argument has no merit.
{¶24} In order to establish a claim of ineffective assistance of counsel, Fonseca must prove (1) her counsel was deficient in some aspect of his representation, and (2) there is a rеasonable probability that, were it not for counsel’s errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Ohio, every properly licensed attorney is presumed to be competent, and therefore, a defendant claiming ineffective assistance of counsel beаrs the burden of proof. State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985).
{¶26} Fonseca’s fourth assignment of error is overruled.
{¶27} The trial court’s judgment is affirmed.
It is ordered that appellee recover of 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. The defendant’s conviction having been affirmed, any bail pending appeal is terminated. 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.
______________________________________________
TIM McCORMACK, JUDGE
KATHLEEN ANN KEOUGH, J., CONCUR