State v. Daniels

[Cite as State v. Daniels, 

.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. Nos.    28444
                                                                  28518
        Appellee

        v.
                                                     APPEAL FROM JUDGMENT
JAMES H. DANIELS                                     ENTERED IN THE
                                                     COURT OF COMMON PLEAS
        Appellant                                    COUNTY OF SUMMIT, OHIO
                                                     CASE Nos. CR 2014 03 0684 (A)
                                                                CR 2015 06 1864

                                  DECISION AND JOURNAL ENTRY

Dated: October 11, 2017



        HENSAL, Presiding Judge.

        {¶1}     James Daniels appeals a judgment of the Summit County Court of Common Pleas

that found him guilty of violating the terms and conditions of community control. For the

following reasons, this Court affirms.

                                                I.

        {¶2}     In 2014, Mr. Daniels pleaded guilty to trafficking in cocaine. The trial court

suspended his sentence on the condition that he complete community control. In 2015, Mr.

Daniels pleaded guilty to a different count of trafficking. The trial court again suspended his

sentence on the condition that he complete community control. In 2016, the State accused Mr.

Daniels of violating the terms and conditions of community control in both cases. Following a

hearing, the trial court found Mr. Daniels guilty, and it sentenced him to 36 months
                                                2


imprisonment in both cases, which it ordered him to serve consecutively. Mr. Daniels has

appealed, assigning two errors.

                                               II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REVOKED MR.
       DANIELS’ COMMUNITY CONTROL FOR FAILURE TO PAY
       SUPERVISION FEES.

       {¶3}    Mr. Daniels argues that the trial court abused its discretion when it found he

violated the terms and conditions of community control for not paying his supervision fees. We

conclude, however, that this argument is not properly before us. At the violation hearing, Mr.

Daniels’s probation officer accused him of committing several violations, including his “fail[ure]

to pay his $20 a month in probation fees.” She said that he committed that violation with respect

to his 2014 case. This Court has previously determined that Mr. Daniels did not perfect his

appeal from the case involving the 2014 conviction and has dismissed that part of the appeal.

Accordingly, we do not have jurisdiction to review Mr. Daniels’s argument. His first assignment

of error is overruled.

                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT ABUSED ITS DISCRETION IN TAKING JUDICIAL
       NOTICE OF THE ALLEGED FACTS CONTAINED IN THE COMMUNITY
       CONTROL VIOLATION MEMO AND LATER REVOKING JAMES
       DANIELS’ COMMUNITY CONTROL BASED ON THOSE SAME CHARGES
       FOR WHICH HE WAS NOT CONVICTED.

       {¶4}    Mr. Daniels next argues that the trial court abused its discretion when it revoked

his community control and sentenced him to prison. He argues that the court improperly took

judicial notice of his probation officer’s violation memo, which drew from police reports of

incidents that did not result in conviction. According to Mr. Daniels, the allegations in the
                                                  3


violation memo constituted “double-hearsay[,]” which was insufficient to support the revocation

of his community control. We review a trial court’s probation revocation decision for abuse of

discretion. State v. Armstrong, 9th Dist. Medina No. 1709, 

, *1 (Sept. 21, 1988).

       {¶5}    At the revocation hearing, the prosecutor asked Mr. Daniels’s probation officer

about the reasons Mr. Daniels was arrested, including whether she had read the police reports.

The probation officer answered that she had read the reports. The prosecutor next asked what

information was in police reports, but the trial court interjected that the information was already

in the probation officer’s violation memo. The prosecutor, therefore, requested that the court

“take notice that it’s in the memo” and indicated that he would “move on … to be expedient.”

The court replied “[t]hank you.”

       {¶6}    The probation officer identified three community control violations pertaining to

Mr. Daniels’s 2015 conviction. The first was his failure to successfully complete Transitional

Services. The second was his failure to obtain full-time employment. The third was his failure

to pay the costs of his prosecution. Mr. Daniels’s probation officer did not allege that the

incidents identified in the police reports constituted violations of Mr. Daniels’s community

control conditions. She only testified that it was his arrest on those allegations that prompted her

to file a violation based on his infractions. She also testified that, although Mr. Daniels was still

enrolled in Transitional Services at the time she filed the violation, his failure to complete that

program would also have caused her to file one.

       {¶7}     Mr. Daniels argued at the probation hearing that, although the facts supported

“maybe a technical guilty finding[,]” the court should not re-impose his sentence. Upon review

of the record, we conclude that the trial court’s finding that Mr. Daniels violated the terms and

conditions of community control was not based on it improperly taking judicial notice under
                                                 4


Evidence Rule 201.1 We also conclude that the trial court did not exercise improper discretion

when it revoked Mr. Daniels’s community control. Mr. Daniels’s second assignment of error is

overruled.

                                                III.

       {¶8}    Mr. Daniels’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT

       1
        We note that, under Evidence Rule 101(C)(3), the rules of evidence do not apply
to “proceedings with respect to community control sanctions[.]”
                                       5



CARR, J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

BARBARA J. ROGACHEFSKY, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.