[Cite as State v. Wade,
2021-Ohio-2949.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29017
:
v. : Trial Court Case Nos. 2020-CR-1551
: and 2020-CR-1595
CHARLES WADE :
: (Criminal Appeal from
Defendant-Appellant : Common Pleas Court)
:
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OPINION
Rendered on the 27th day of August, 2021.
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MATHIAS H. HECK, JR., by J. JOSHUA RIZZO, Atty. Reg. No. 0099218, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, 210 West Main Street, Troy, Ohio
45373
Attorney for Defendant-Appellant
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WELBAUM, J.
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{¶ 1} Defendant-appellant, Charles Wade, appeals from the judgments of the
Montgomery County Court of Common Pleas revoking his community control sanctions.
For the reasons outlined below, the judgments of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On July 14, 2020, Wade pled guilty in Montgomery C.P. No. 2020-CR-1595
to one count of domestic violence in violation of R.C. 2919.25(A), a fourth-degree felony.
Wade also pled guilty in Montgomery C.P. No. 2020-CR-1551 to one count of harassment
with a body substance in violation of R.C. 2921.38(B), a fifth-degree felony. Following
Wade’s guilty pleas, on July 28, 2020, the trial court sentenced Wade to serve a term of
community control sanctions not to exceed five years for both cases.
{¶ 3} As part of his community control sanctions, the trial court required Wade to
abide by several conditions, including that he attend and complete the MonDay Program.
The trial court also advised Wade that if he violated any condition of his community
control, or violated any law, it could impose a longer time under the same sanction, a
more restrictive sanction, 12 months of local incarceration, or up to a total term of 30
months in prison, i.e., 18 months for domestic violence and 12 months for harassment
with a bodily substance, served consecutively.
{¶ 4} On November 2, 2020, Wade’s probation officer filed notices of violation of
community control in both cases asserting that Wade had failed to complete the MonDay
Program as ordered by the trial court. The notices indicated that Wade had been
clinically discharged from the MonDay Program on October 30, 2020.
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{¶ 5} On December 22, 2020, the trial court held a revocation hearing. During this
hearing, the State presented testimony from Wade’s probation officer, Ryan Addison.
Addison testified that completing the MonDay Program was a condition of Wade’s
community control and that Wade had violated that condition when he was unsuccessfully
discharged from the MonDay Program due to his noncompliant behavior. During his
testimony, Addison identified State’s Exhibit 4, which was a discharge summary prepared
by Wade’s clinician at the MonDay Program. Addison testified that the discharge
summary outlined the reasons for Wade’s unsuccessful discharge. The clinician who
authored the discharge summary did not testify at the revocation hearing. The discharge
summary was admitted into evidence without any objection from Wade.
{¶ 6} The only other witness to testify at the revocation hearing was Wade himself.
During his testimony, Wade claimed that he suffered from certain physical and mental
ailments that negatively affected his performance in the MonDay Program. Wade also
testified that he performed every task that had been required of him and that he had not
willfully violated his community control sanctions.
{¶ 7} After the revocation hearing, the trial court issued its decision from the bench
and revoked Wade’s community control sanctions. The trial court based its decision on
the information contained in the discharge summary. Specifically, the trial court stated:
I give Mr. Wade great credit for the comments that he made during
his … testimony. And I have to weigh that against the information from
MonDay Program provided in its discharge of Mr. Wade, as well. And
some of that information includes that he minimally participated in individual
and group treatment; and while he did complete mandatory assignments,
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his treatment work was done quickly and with no internal thought; he did not
complete his parenting or anger management workbooks as required for
the completion of those classes; his work was lacking of depth about his
court issues; he did not apply the information, coping strategies or
intervention from his treatment into practice or how to deal with life
stressors; and while he did participate in individual sessions with this
clinician, frequently the session would devolve into complaints about
MonDay, complaints about his unresolved medical issues or threats of
pending lawsuits against MonDay; he would make statements like
[cognitive behavioral therapy] doesn’t work and I won’t fake it to make it.
When he entered the Program, he reported that he didn’t need to be
there because his only problem was alcohol and he had already obtained
sobriety prior to entry and efforts to have him address those alcohol issues
and other problematic behaviors were largely unsuccessful. And he had
significant difficulty getting along with others in the Program specifically the
staff at the MonDay Program. And they concluded that his prognosis for
success in the Program was poor and, therefore, the MonDay Program
made the determination to unsuccessfully discharge him from the MonDay
Program. And there’s no dispute that he was unsuccessfully discharged
from the MonDay Program.
He was there for 80 days, filed 25 grievances while he was there,
also stopped staff on the day floor several times to complain about his
various concerns, submitted 19 requests to see staff which exceeded the
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typical resident requests. And although he did successfully complete the
two behavioral contracts that he was placed upon, the determination was
made by the MonDay Program that the level of attention and care that Mr.
Wade needed simply exceeded the ability of the Program. And so it
unsuccessfully discharged him from the Program.
And it is that unsuccessful discharge from the MonDay Program that
is the basis for the petitions to revoke him from supervision. And,
therefore, as a result, the Court will find that there is substantial and
significant evidence that Mr. Wade has violated the terms and conditions of
his supervision and it is appropriate then at this time to impose an
alternative sentence upon him.
Hearing Trans. (Dec. 22, 2020), p. 58-60.
{¶ 8} Following its decision to revoke Wade’s community control sanctions, the trial
court sentenced Wade to serve 18 months in prison for domestic violence in Case No.
2020-CR-1595 and 12 months in prison for harassment with a bodily substance in Case
No. 2020-CR-1551. The trial court ordered these sentences to be served concurrently
for a total term of 18 months in prison. Wade now appeals from the trial court’s judgment
revoking his community control sanctions and sentencing him to prison, raising two
assignments of error for our review.
First Assignment of Error
{¶ 9} Under his first assignment of error, Wade contends that the trial court
committed plain error by relying solely on hearsay evidence, i.e., the discharge summary,
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to revoke his community control sanctions. To support this claim, Wade contends that
the admission and consideration of the discharge summary violated his due process right
to confront adverse witnesses. Upon review, we find no plain error that necessitates
reversal in this case.
{¶ 10} “ ‘Revocation hearings are not subject to the rules of evidence, thus allowing
for the admission of hearsay evidence.’ ” State v. McDargh, 2d Dist. Clark No. 2015-CA-
27, 2016-Ohio-1132, ¶ 12, quoting State v. Westrick,
196 Ohio App.3d 141, 2011-Ohio-
1169,
962 N.E.2d 818 (3d Dist.). (Other citation omitted.) This is because a “
‘revocation hearing is an informal proceeding, not a criminal trial[.]’ ”
Id., quoting
Columbus v. Bickel,
77 Ohio App.3d 26, 36,
601 N.E.2d 61 (10th Dist.1991), citing State
v. Miller,
42 Ohio St.2d 102, 106,
326 N.E.2d 259 (1975). Therefore, during revocation
hearings, “ ‘the trier of fact should be able to consider any reliable and relevant evidence
to determine whether the [defendant] has violated the conditions of his [supervision].’ ”
Id.
{¶ 11} “Nevertheless, in some circumstances, the admission of hearsay evidence
at a revocation hearing can deny the defendant his due process right to confront and
cross-examine adverse witnesses.” State v. Brandon, 2d Dist. Montgomery No. 23336,
2010-Ohio-1902, ¶ 19, citing State v. Dunning, 2d Dist. Greene No. 08-CA-07, 2009-Ohio-
691, ¶ 10. This includes, for example, instances where “ ‘[hearsay] evidence is the only
evidence presented and is crucial to a determination of a probation violation.’ ” McDargh
at ¶ 13, quoting State v. Ryan, 3d Dist. Union No. 14-06-55,
2007-Ohio-4743, ¶ 9, citing
State v. Ohly,
166 Ohio App.3d 808,
2006-Ohio-2353,
853 N.E.2d 675 (6th Dist.).
{¶ 12} As noted above, Wade contends that the trial court’s decision revoking his
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community control sanctions was based solely on hearsay evidence, i.e., the discharge
summary, thereby violating his right to due process. Wade, however, did not object to
the admission of the discharge summary into evidence, let alone claim that its admission
violated his due process rights. “The failure to object to a due process violation during a
community control revocation hearing waives all but plain error.” State v. Hatton, 2d Dist.
Montgomery No. 25959, 2014-Ohio-3354, ¶ 10, citing State v. Blakeman, 2d Dist.
Montgomery No. 18983,
2002 WL 857659, *3 (May 3, 2002). “For plain error to exist,
the defect in the trial proceedings must be obvious and must have affected the outcome
of the trial.” State v. Davis, 2d Dist. Montgomery No. 28923,
2021-Ohio-1833, ¶ 18, citing
State v. Payne,
114 Ohio St.3d 502,
2007-Ohio-4642,
873 N.E.2d 306, ¶ 16.
{¶ 13} Upon review, we find that the discharge summary was not the only evidence
presented at Wade’s revocation hearing, as the State presented testimony from Wade’s
probation officer, Ryan Addison. Addison testified that he became Wade’s probation
officer after Wade entered the MonDay Program, and that Wade was required to complete
the MonDay Program as a condition of his community control sanctions. Addison also
testified that Wade was not compliant in the MonDay Program and was terminated from
the program unsuccessfully. Addison further testified that prior to Wade’s unsuccessful
termination, he, Wade, and Wade’s MonDay clinician attended two interventions during
which they discussed Wade’s behavior.
{¶ 14} Addison testified that during the first intervention, they discussed Wade’s
“overall noncompliance [as] far as [Wade] being defiant, argumentative, utilizing
grievances as a way to get attention, threatening suicide when [Wade] didn’t get his way,
[and] constantly complaining of his medical state with his … bowels … because he
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wasn’t able to use the restroom.” Hearing Trans. (Dec. 22, 2020), p. 28. Addison
testified that they also discussed Wade’s complaints of wrist pain and noted that “[i]t was
later found that … [Wade could] be seen on video doing pushups without any type of
issue [.]” Id.
{¶ 15} Addison additionally testified that the second intervention “took place
because [of Wade’s] unwillingness to change his behavior and his unwillingness to work
on himself and work on the things that got him there such as … his addiction to …
alcohol and not fully engaging in the program.” Id. at 29. Addison testified that Wade
was “pretty upset” during both interventions and that Wade was acting like a victim by
blaming and accusing others. Id. Addison also testified that Wade’s behavior did not
change from the first to the second intervention.
{¶ 16} With regard to the discharge summary, Addison testified that, per protocol,
he received the discharge summary, which outlined the reasoning for Wade’s
unsuccessful discharge. Most significantly, Addison testified that his testimony
regarding Wade’s performance was outlined in the discharge summary. This indicated
(and the actual discharge summary confirmed) that Wade’s discharge from the program
was based, at least in part, on the issues that Addison testified about at the revocation
hearing.
{¶ 17} Because Addison’s testimony touched on the reasons for Wade’s
unsuccessful discharge, we find that Addison’s testimony, standing alone, would have
been sufficient for the trial court to revoke Wade’s community control sanctions.
Although the record indicates that the trial court relied solely on the discharge summary
when revoking Wade’s community control, even without the discharge summary, the trial
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court could have revoked Wade’s community control based on Addison’s testimony.
Therefore, Wade has not established plain error with regard to the trial court’s relying
solely on the discharge summary, as the outcome of the revocation proceeding would not
have been different had the discharge summary not been admitted into evidence. See
generally State v. Pullen-Morrow, 2d Dist. Montgomery No. 24862, 2012-Ohio-3605,
¶ 24-25 (finding no plain error where the result of a revocation hearing would not have
been different even if the discharge summary/testimony regarding the contents of the
discharge summary had been excluded).
{¶ 18} Wade’s first assignment of error is overruled.
Second Assignment of Error
{¶ 19} Under his second assignment of error, Wade contends that the trial court’s
decision to revoke his community control sanctions was an abuse of discretion.
Specifically, Wade argues that the trial court’s decision to revoke his community control
was unreasonable in light of the testimony he provided at the revocation hearing. We
disagree with Wade’s claim.
{¶ 20} “The right to continue on community control depends upon compliance with
the conditions of community control and is a matter within the sound discretion of the trial
court.” State v. Eastman, 2d Dist. Clark No. 2020-CA-5, 2021-Ohio-392, ¶ 13, citing
State v. Lewis, 2d Dist. Montgomery No. 23505,
2010-Ohio-3652, ¶ 11. “Accordingly,
we review the trial court’s revocation of community control for an abuse of discretion.”
Id., citing State v. Morgan, 2d Dist. Montgomery No. 26132,
2014-Ohio-5071, ¶ 11. “A
trial court abuses its discretion when it makes a decision that is unreasonable,
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unconscionable, or arbitrary.” (Citation omitted.) State v. Darmond, 135 Ohio St.3d
343,
2013-Ohio-966,
986 N.E.2d 971, ¶ 34. “An abuse of discretion most often involves
an unreasonable decision that is not supported by a sound reasoning process.” State v.
Pate,
2021-Ohio-1838, __ N.E.3d __, ¶ 36 (2d Dist.), citing AAAA Ents., Inc. v. River
Place Community Urban Redevelopment Corp.,
50 Ohio St.3d 157, 161,
553 N.E.2d 597
(1990).
{¶ 21} As previously noted, Wade claims that the trial court’s decision revoking his
community control sanctions was unreasonable in light of his testimony at the revocation
hearing. Specifically, Wade testified that his performance in the MonDay Program was
affected by physical injuries that he sustained from being beaten in jail by fellow inmates
prior to entering the program. Wade testified that his ribs were broken and that one of
his ribs punctured his intestines. Wade testified that the puncture resulted in a blood clot
that led to a prolonged bowel obstruction, which required him to be on laxatives for an
extended period of time. According to Wade, his bowel condition caused him
embarrassment and pain on a daily basis.
{¶ 22} In addition to his physical condition, Wade testified that he suffered from
mental issues such as paranoia and delusions, which caused him to feel as if MonDay
staff members were trying to get him kicked out of the program. Wade also testified that
he had been diagnosed with post-traumatic stress disorder. According to Wade, his
physical and mental ailments were the source of his negative personal interactions with
MonDay staff and were the cause of the several grievances he filed while in the program.
Wade testified that he otherwise completed all the required tasks in the program and that
he never willfully violated the conditions of his community control sanctions.
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{¶ 23} It was, however, within the province of the trial court to determine what
weight, if any, to give to Wade’s testimony. Simply because Wade disagrees with the
trial court’s resolution of the factual disputes in this case does not indicate that the trial
court’s decision revoking his community control was an abuse of discretion. Therefore,
because the evidence established that Wade was required to complete the MonDay
Program as a condition of his community control sanctions and that Wade was
unsuccessfully discharged from the MonDay Program due to his noncompliant behavior,
the trial court’s decision revoking Wade’s community control for failing to complete the
MonDay Program was not unreasonable and thus not an abuse of discretion.
{¶ 24} Wade’s second assignment of error is overruled.
Conclusion
{¶ 25} Having overruled both assignments of error raised by Wade, the judgments
of the trial court are affirmed.
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DONOVAN, J. and HALL, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
J. Joshua Rizzo
Michael J. Scarpelli
Hon. Mary Lynn Wiseman
