State v. MullinsState v. Mullins
Heather A. Felerski, P.O. Box 191342, Fairfield, Ohio 45018, for defendant-appellant
RINGLAND, J.
{¶ 1} Defendant-appellant, Joshua T. Mullins, appeals his revocation of community control and sentence from the Butler County Court of Common Pleas.
{¶ 2} On May 5, 2010, the Butler County Grand Jury indicted appellant on one count of failure to verify a current residence, school, institution of higher education or place of employment address in violation of
{¶ 3} On March 14, 2011, appellant admitted to violating his community control and pled guilty to a new charge of failure to provide notice of address or place of employment. As with the first plea, the trial court, pursuant to
{¶ 4} On September 27, 2011, a notice of alleged violations was filed against appellant. The notice stated that appellant had been unsuccessfully terminated from the MONDAY program on September 26, 2011, due to habitual noncompliance with the rules of the program. On October 17, 2011, through counsel, appellant admitted to that violation of his community control. The trial court then revoked appellant‘s community control and imposed a sentence of two years in prison for each violation and ordered that the sentences run consecutively.
{¶ 5} Appellant now appeals from that revocation of community control and sentence, raising one assignment of error for our review:
{¶ 6} Assignment of error No. 1:
{¶ 7} THE APPELLANT DID NOT GIVE A KNOWING AND INTELLIGENT GUILTY PLEA WHEN THE TRIAL COURT FAILED TO STRICTLY COMPLY WITH
{¶ 9} Contrary to appellant‘s argument, he was not entitled to
{¶ 10} A defendant whose probation may be revoked as a result of a probation violation is entitled to the protections of due process. State v. Payne, citing State v. Weaver, 141 Ohio App.3d 512, 516 (7th Dist.2001), citing Gagnon v. Scarpelli (1973), 411 U.S. 778, 786, 93 S.Ct. 1756, 1761-62. These protections include a preliminary hearing at which the defendant is entitled to notice of the alleged violation and a final hearing at which time evidence is presented. See id.
{¶ 11} The trial court clearly complied with these due process requirements. A notice of alleged violations was filed on September 27, 2011. A probable cause hearing was held on October 4, 2011, wherein the magistrate found that there was probable cause that appellant violated the conditions of supervision. On October 17, 2011, a final hearing was held. Appellant‘s counsel stated that appellant would admit the violation, and the court then
{¶ 12} After reviewing the record to consider appellant‘s assignment of error, we notice and raise, sua sponte, an error in the trial court‘s addressing of appellant‘s constitutional rights pursuant to
[T]he burden is on the State of Ohio. They have to prove every element of the offense charged, and they have that same standard they have to meet for each offense, and if they fail to meet that standard, there‘s a finding of not guilty on whatever offense they can‘t make the burden on; do you understand that?
{¶ 13} Through this dialogue, the trial court failed to inform appellant that the state must prove the defendant‘s guilt beyond a reasonable doubt. Instead, the trial court ambiguously informed appellant that the burden of proof is on the state. However, the Ohio Supreme Court held that, “an alleged ambiguity during a
{¶ 14} In light of the foregoing, having found that
{¶ 15} Judgment affirmed.
POWELL, P.J., and YOUNG, J., concur.
Young, J., retired, of the Twelfth Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 6(C), Article IV of the Ohio Constitution.