STATE OF OHIO, Plаintiff-Appellee, vs. BRANDEN THOMPSON, Defendant-Appellant.
APPEAL NOS. C-140746, C-140747
TRIAL NOS. B-1302053, B-1302516-B
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
July 15, 2015
[Cite as State v. Thompson, 2015-Ohio-2836.]
MOCK, Judge.
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: July 15, 2015
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plаintiff-Appellee,
Timothy J. McKenna, for Defendant-Appellant.
Please note: this case has been removed from the accelerаted calendar.
O P I N I O N.
{¶1} Defendant-appellant Branden Thompson appeals from the judgments оf the trial court revoking his community control and sentencing him to a total of 12 months’ incarceration. We affirm.
{¶2} This case involves two trial numbers, B-132053 and B-132516-B. In the case numbered B-132053, Thompson was convicted of aggravated assault, a fourth-degree felony, in violation of
THE COURT: State of Ohio versus Branden Thompson. It‘s case B-132053, set for community control violatiоn. And I know, Mr. Ellis, you represent Mr. Thompson here today. Do you waive probable cause, sir?
MR. ELLIS: We waive probable cause.
{¶3} A short time later, the court indicated that “there‘s another case number, case B-132053, and then case B-132516-B.” The court did not ask Thompson if he waived probable cause in the case numbered B-132516-B. Thompson then pleaded no contest to both charges. The trial court accepted his pleas, found him guilty, and revoked Thompson‘s community control. Thompson was sentenced to one year of incаrceration on each charge, to be served concurrently. This appeal followed.
{¶5} Because Thompson failed to object below, we review for plain error. Notice of plain error is to be taken with the utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriаge of justice. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. Plain error does not exist unless it can be said that, but for the error, the outcome of the proceeding clearly would have been otherwise. State v. Moreland, 50 Ohio St.3d 58, 62, 552 N.E.2d 894 (1990).
{¶6} Certain minimum requirements of due process under the Fourteenth Amendment apply at community-contrоl-revocation proceedings, including the requirement that a court conduct a preliminary hearing. State v. Delaney, 11 Ohio St.3d 231, 233, 465 N.E.2d 72 (1984), citing Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); see State v. King, 1st Dist. Hamilton No. C-010330, 2002-Ohio-373, ¶ 8 (recognizing that after probation was abolished for convicted felons in 1996, the due-process requirements that had been applied to probation-revocation hearings applied to community-control-violation hearings). The preliminary hearing, commonly referred to as a “probable-cause” hearing, serves two purposes. First, it prevents the incarceration оf an alleged offender without probable cause pending the outcome of the casе in instances where there is a time lag between arrest and the revocation hearing. Delaney at 233; State v. Craig, 130 Ohio App.3d 639, 643, 720 N.E.2d 966 (1st Dist.1998). Second, a preliminary hearing allows independent review of the charges while information is fresh and sources are
{¶7} Here, the court did not conduct a preliminary “probable-cause” hearing, and Thompson did not waive his right to this hearing in the case numbered B-132516-B. But Thompson cannot demonstrate, nor hаs he even alleged, any prejudice. Thompson admitted to the facts underlying the alleged violation, and he was found to have violated the terms of community control during the same, initial hearing. Under thеse circumstances, the need for a preliminary hearing was obviated, and Thompson‘s right to due рrocess of law was not violated. See State v. Alexander, 1st Dist. Hamilton No. C-070021, 2007-Ohio-5457, ¶ 3-4. We therefore find that any error was harmless error. Sеe Crim.R. 52(A). Thompson‘s first assignment of error is overruled.
{¶8} In his second assignment of error, Thompson argues that the record does not clearly and convincingly support the trial court‘s sentencing findings. More spеcifically, he contends that the court failed to consider the overriding purposes and principles of sentencing set forth in
{¶9}
Judgments affirmed.
CUNNINGHAM, P.J., and FISCHER, J., concur.
Please note:
The court has recorded its own entry this date.