Stаte of Ohio, Plaintiff-Appellee, v. Ebony M. Waddell, Defendant-Appellant.
No. 14AP-372 (C.P.C. No. 13CR-4123)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
October 30, 2014
[Cite as State v. Waddell, 2014-Ohio-4829.]
(REGULAR CALENDAR)
Rendered on October 30, 2014
Ron O‘Brien, Prosecuting Attorney, and Steven L. Taylor, for appellee.
Meeks & Thomas Co., LPA, and David H. Thomas, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶ 1} Ebony M. Waddell, defendant-appellant, appeals the judgment of the Franklin County Court of Common Pleas in which the court revoked her probation.
{¶ 2} Appellant was indicted on one count of felonious assault after stabbing her boyfriend with a knife. The court ordered a mental examination and found appellant suffered from mental illness but was competent. On November 4, 2013, appellant pled guilty to one count of attempted felonious assault, and the court sentenced her to community control with requirements that аppellant undergo drug screens, participate in a drug-treatment program, and continue taking her medications. Although appellant entered a drug-treatment program, she failed two subsequent drug tests within 12 days of
{¶ 3} On April 4, 2014, the court held a probation revocation hearing. Appellant‘s counsel stipulated to the probation violations. Appellant‘s counsel also requested another competency evaluation, which the trial cоurt denied. On April 7, 2014, the trial court revoked appellant‘s probation and sentenced her to a two-year prison term. Appellant appeals the judgment, asserting the following assignment of error:
DEFENDANT-APPELLANT‘S COUNSEL WAS INEFFECTIVE IN ADVOCATING FOR THE DEFENDANT BY FAILING TO REQUEST A SECOND, FINAL PROBATION REVOCATION HEARING, AND FAILING TO PRESENT MITIGATION EVIDENCE IN SUPPORT OF HER CONTINUANCE ON PROBATION; AND THUS, THESE SERIOUS ERRORS PREJUDICED DEFENDANT-APPELLANT BY DEPRIVING HER OF HER RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND A FAIR HEARING UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.
{¶ 4} Appellant argues in her assignment of error that her counsel provided ineffective assistanсe. The
{¶ 5} An attorney properly licensed in the state of Ohio is presumed competent. State v. Lott, 51 Ohio St.3d 160, 174 (1990). The defendant has the burden of proof and must overcome the strong presumption that counsel‘s performance was adequate or that counsel‘s action might be sound trial strategy. State v. Smith, 17 Ohio St.3d 98, 100 (1985). In demonstrating prejudice, the defendant must prove that there exists a reasonable probability that, were it not for counsel‘s errors, the result of the trial would have been different. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph three of the syllabus.
{¶ 6} In the present case, appellant presents four instances of alleged ineffective assistance of counsel: (1) counsel failed to detail his problems with the previous competency evaluation, (2) counsel failed to outline appellant‘s current mental state and her ability to comprehend the proceedings, (3) counsel failed to request a second, final probаtion revocation hearing, and (4) counsel failed to present any mitigation evidence. With regard to the first argument that trial counsel was ineffective because he failed to detail his concerns about the previous competency evaluation, our review of the record revеals that trial counsel requested another competency evaluation but the trial court denied such. Trial counsel told the trial court only that he had “issues” and took some “exceptions” to the initial competency evaluation, so we lack any record to determine the merits оf his concerns. Nevertheless, the trial court cited its reasons for denying the request for another evaluation, and it appears unlikely that counsel‘s argument would have persuaded the trial court to grant the request. The trial court stated that it believed counsel‘s request for another competency evaluation at the April 4, 2014 hearing was “inappropriate,” apparently on the basis that appellant was already found competent at a recent November 4, 2013 hearing. The trial court summarized its actions in the case. The court explained that appellant rеquested a competency evaluation, the court granted it to her, she was evaluated, found competent, entered a plea of guilty, and the court placed her on probation. The underlying tenor of the court‘s decisive denial was that it had already agreed once to assess appellant‘s competency, and it was not going to revisit the issue so soon after the first evaluation. We fail to find that the outcome would have been different had trial counsel expounded on his reasons for wanting a second competency finding in six months.
{¶ 7} In her second argument, appellant argues that her trial counsel was ineffective when he failed to outline appellant‘s current mental state and her ability to comprehend the proceedings. However, as mentioned, the trial court denied appellant‘s request for a second competency evаluation decisively due to the recentness of the prior
{¶ 8} In her third argument, appellant contends her trial counsel should have requested a second, final revocation hearing. Revocation of probation implicatеs two due process requirements. The first requirement is 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, 411 U.S. 778 (1973); Morrissey v. Brewer, 408 U.S. 471 (1972). In this case, there was a hearing, and appellant conceded that probable cаuse existed for the probation violation.
{¶ 9} If it is determined that the conditions of probation have been violated, a second, less summary proceeding is held to determine whether the probation should be revoked or modified. Columbus v. Lacey, 46 Ohio App.3d 161, 162 (10th Dist.1988), citing Gagnon at 784-86. The purpose of the final revocation hearing is to give thе defendant “an opportunity to be heard and to show” that he either did not violate his conditions or that certain mitigating circumstances “suggest that the violation does not warrant revocation.” Morrissey at 488.
{¶ 10} There was no due process violation in this case. The trial court here appears to hаve intended to hold both a preliminary probable cause hearing and a final revocation hearing in a consolidated hearing. The trial court stated at the commencement of the hearing that it was a “first hearing” and then asked appellant‘s counsel whether appellant wished tо stipulate to probable cause and schedule the matter for a full hearing on a later date. After consulting with appellant, trial counsel indicated that appellant wished to stipulate to probable cause. Appellant also stipulated that she violated the terms of cоmmunity control, which would normally be a determination made by the court during the final revocation hearing. The trial court then asked whether appellant desired to offer
{¶ 11} This court has found that “[t]here is authority in Ohio * * * that this requirement for a two-step procedure does not mandate two seрarate hearings held on different dates.” Columbus v. Kostrevski, 10th Dist. No. 92AP-1257 (Feb. 23, 1993), citing State v. Miller, 45 Ohio App.2d 301 (3d Dist.1975). In Kostrevski, we acknowledged the holding in Miller that the need to establish probable cause in the first step, and then to determine in the second step whether the violation should result in revocation of probation, does not necessarily require an interval of time between the two steps. Id. Finding no prejudice to the defendant in Kostrevski, the сourt rejected her contentions that combining the procedure into a single hearing violated her due process rights. Id.
{¶ 12} Regardless, a trial court‘s revocation of probation without holding two separate hearings will be reversed only if the defendant was prejudiced by such. See Miller at 306 (the judgment of a trial court revoking probation will not be reversed where two separate hearings have not been held unless it appears from the record that the defendant was prejudiced). Here, we fail to find appellant suffered any prejudice by the trial court‘s actions, and appellant fails to allege any. Appellant‘s positive drug screens were clearly violations of the terms of her community control, and she admitted to the
{¶ 13} Furthermore, insofar as appellant might argue that her counsel was ineffective in stipulating to the violations, it appears from the hearing transcript that defense counsel consulted appellant before informing the trial court that appellant wished to stipulate to the violations. Nevertheless, dеfense counsel‘s stipulation to the violations of the community control terms could have been sound trial strategy. As explained, the violations were for drug usage, and the results were based on urine screens. Therefore, the screening results were clear and without apparent basis to contest, and any argument that appellant did not violate the terms of her community control may have been interpreted by the trial court as an obstinate refusal to accept responsibility for her actions. Thus, trial counsel‘s actions fall under the wide range of sound trial strategy. See Brown, 2010-Ohio-6603, at ¶ 18 (in prоbation revocation proceedings, it was not ineffective assistance for counsel to opt to stipulate to the probation violation and
{¶ 14} With regard to the fourth argument that trial counsel failed to present any mitigation evidence, the record reveals that trial counsel did present a mitigation argument. Trial counsel explained to the court that appellant had only participated in drug counseling for a very brief period, with her first drug screen coming back positive. Counsel argued that the court should continue appellant on community control because she had not been given an opportunity to participate in drug counseling for a reasonable time. Counsel also asserted that appellant should continue on community control to аllow her to continue to take her medication to treat her mental health issues, including schizophrenia, because she had been doing much better since she had recently started taking her medication. Furthermore, it is notable that appellant violated her probation by using marijuana, and her presentence investigation indicated that appellant had used marijuana for many years. Thus, it does not appear that appellant‘s use of marijuana at the time of the probation violation was due to a change in her competency since the prior evaluatiоn but, rather, was a long standing habit. Therefore, because trial counsel did present evidence in mitigation, we find appellant‘s contention without merit. For the foregoing reasons, we find appellant was not provided ineffective assistance of counsel. Appellant‘s assignment of error is overruled.
{¶ 15} Accordingly, appellant‘s assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
CONNOR and LUPER SCHUSTER, JJ., concur.
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