State of Ohio, Plaintiff-Appellee, v. Cedric D. Harwell, Defendant-Appellant.
No. 20AP-5 (C.P.C. No. 15CR-518)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
Rendered on December 24, 2020
[Cite as State v. Harwell, 2020-Ohio-6880.]
BEATTY BLUNT, J.
(REGULAR CALENDAR)
On brief: Bellinger & Donahue, and Kerry M. Donahue, for appellant. Argued: Kerry M. Donahue.
APPEAL from the Franklin County Court of Common Pleas
BEATTY BLUNT, J.
DECISION
{¶ 1} Defendant-appellant, Cedric D. Harwell, appeals the decision of the Franklin County Court of Common Pleas revoking his release on community control and sentencing him to a term of four years of incarceration.
{¶ 2} On March 30, 2015, Harwell entered a plea of guilty to a charge of second-degree-felony robbery, and on April 24, 2015, the trial court sentenced him to a term of four years of incarceration. On August 22, 2016, the trial court granted Harwell‘s motion for judicial release, placed him on three years of intensive probation, and held that “if the Defendant violates Community Control, Defendant will receive a prison term of four (4) years.”
{¶ 4} The matter was set for hearing on October 17, 2019, and at that time the defendant‘s attorney agreed to “stipulate to probable cause in the violations.” (Oct. 17, 2019 Tr. at 3.) The court continued the case to November 8, 2019 so that it could review some factual details that were discussed at prior proceedings. Id. at 12.
{¶ 5} On November 8, 2019, the court noted that “counsel has already stipulated to probable cause in the violations at a prior hearing.” (Nov. 8, 2019 Tr. at 3.) When given the chance to speak, Harwell‘s counsel did not request additional factfinding regarding the violations, but instead presented an argument to mitigate the alleged offenses. Id. at 4-7. The parties also agreed that Harwell had served 64 days of local incarceration and was due jail-time credit for that period. Id. The court subsequently revoked Harwell‘s release, sentenced him to four years of incarceration, and certified 64 days of county jail-time credit. See id. at 14-15; Revocation Entry at 1-2.
{¶ 6} Harwell did not file a timely appeal, but the court granted his unopposed motion for leave to file a delayed appeal on January 13, 2020. He now asserts two assignments of error with the court‘s judgment revoking his community-control release, and we observe that the state has conceded some error as to the second assignment.
{¶ 8} Harwell relies, almost exclusively, on the United States Supreme Court‘s decision in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756 (1973), in which the court held that before probation can be revoked, due process requires the state to give the probationer written notice of the alleged violation, disclosure of adverse evidence, an opportunity to present evidence in his own behalf and to confront and cross-examine adverse witnesses, an impartial hearing, and written findings supporting the decision to revoke probation. Id. at 786. See also State v. Moore, 10th Dist. No. 03AP-803, 2004-Ohio-2521, ¶ 3-5. The process establishes a bifurcated hearing, where probable cause to continue is at issue in the
{¶ 9} Harwell‘s argument is simple. He argues that the trial court committed a due process violation by finding him in violation of his community control sanctions, because he did not stipulate to an actual violation of the conditions of his sanction, and because the court did not take any evidence that would have allowed it to find that he had violated the conditions of his sanction. He asserts that his stipulation “to probable cause in the violation” at the October 17, 2019 hearing was not a stipulation that there were reasonable grounds for the court to find that the violation occurred, and that in the absence of other “substantial evidence” (of which there is none, since none was taken), it was plain error for the court to find him in violation of his community control conditions.
{¶ 10} The state responds that the court‘s use of “in” on that date was “a typographical error in the transcript,” and that really, the defendant “stipulated to probable cause [and] the violations.” But aside from the fact that phrasing is itself unclear, the record reveals that at the hearing on November 8, the court used precisely the same language,
{¶ 11} In short, even applying plain error review Harwell is correct. A stipulation that there was probable cause to find the violations is simply not equivalent to finding that the state had proven those violations. It was accordingly error for the trial court to move from the probable cause stipulation immediately to sanctioning Harwell and that error was an obvious defect in the proceedings, as he was prejudicially denied his opportunity to put the state to its proof as to the alleged violations. While we observe that as a practical matter it is unlikely that Harwell had any factual defense to the violations with which he was charged, it remains the burden of the state to prove them, and here the state was inadvertently relieved of that admittedly low burden. Because it is improper for an appellate court to presume what would have happened if he had been provided the opportunity to require the state to prove its case, we find that Harwell has demonstrated plain error. Accordingly, his first assignment of error must be sustained and the case must be remanded for a new hearing.
{¶ 12} Harwell next asserts that “[i]t was error for the lower court not to appropriately grant proper jail time credit to defendant-appellant or error not to provide the credit upon resentencing that was previously granted.” The trial court‘s decision whether to grant a motion for jail-time credit is reviewed for an abuse of discretion. State v. Dean, 10th Dist. No. 14AP-173, 2014-Ohio-4361, ¶ 5, quoting
{¶ 13} Here, the State has conceded error and accepts that the revocation entry only awards 64 days of jail-time credit, but that Harwell really should have been awarded a total of 169 days—“64 days in addition to the initial 105 days of jail-time credit he was awarded as part of the original sentencing entry.” Harwell, by contrast, argues that he was actually entitled to an additional 107 days over and above that. But because this cause is being remanded, the dispute may be resolved at a new hearing. We therefore conclude that Harwell‘s second assignment of error is moot and decline to address it further.
{¶ 14} For these reasons, Harwell‘s first assignment of error is sustained, his second assignment of error is moot, the judgment of Franklin County Court of Common Pleas is reversed, and this cause is remanded.
Judgment reversed.
KLATT and NELSON, JJ., concur.