[Cite as State v. Bentley,
2023-Ohio-1708.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 21AP0039
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
LACY DAWN BENTLEY COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
Appellant CASE No. 2020 CRC-I 000553
DECISION AND JOURNAL ENTRY
Dated: May 22, 2023
STEVENSON, Judge.
{¶1} Defendant-Appellant Lacy Dawn Bentley (“Ms. Bentley”) appeals from the
judgment of the Wayne County Court of Common Pleas finding that she violated the terms of her
community control and imposing a 24-month prison sentence. This Court reverses and remands
for further proceedings.
I.
{¶2} Ms. Bentley pleaded guilty to aggravated possession of drugs in violation of R.C.
2925.11(A), a third-degree felony. Ms. Bentley was sentenced to 24 months on community control
and ordered to follow the terms set forth in the conditions of community control sanction form,
attached to the court’s judgment entry as Exhibit A. The trial court entered a stated prison term of
36 months, the maximum sentence, for a community control sanction violation (“CCV”).
{¶3} A CCV complaint was subsequently filed against Ms. Bentley for violating Rule 5,
failing to report to her probation officer as directed, and Rule 6, not being permitted to purchase,
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possess, use, or have any controlled substances, intoxicant, or drug paraphernalia. Ms. Bentley
was served a summons for the CCV complaint at the Wayne County Jail.
{¶4} Ms. Bentley appeared for a preliminary hearing on the CCV complaint. The trial
court informed Ms. Bentley at the preliminary hearing that she was charged with violating Rules
5 and 6 and that, if she is found to have violated the terms and conditions of her community control,
she “could be removed from the community control sanction program and face further
incarceration.” The trial judge informed Ms. Bentley at the preliminary hearing that “[t]he matter
is going to be set for a hearing;” that she has “a right to be represented by an attorney in that
hearing;” and that, “if you have no money or property used to hire an attorney, one will be
appointed for you at no cost to yourself.” The trial judge appointed an attorney for Ms. Bentley
and the matter was set for a final CCV hearing.
{¶5} Ms. Bentley, represented by appointed counsel, pleaded guilty at the final CCV
hearing. The trial court sentenced Ms. Bentley to 24 months in prison with credit for time served.
Ms. Bentley appeals from this sentence, citing three assignments of error for this Court’s review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT FAILED TO PROVIDE THE CONSTITUTIONAL
SAFEGUARDS REQUIRED FOR COMMUNITY CONTROL
VIOLATIONS AND FAILED TO ADHERE TO REQUIREMENTS FOR
VIOLATION PROCEEDINGS, AND THUS ERRED IN IMPOSING
SENTENCE ON APPELLANT WITHOUT SATISFYING DUE PROCESS
REQUIREMENTS FOR COMMUNITY CONTROL VIOLATIONS.
{¶6} Ms. Bentley argues in her first assignment of error that the trial court failed to
provide the required constitutional safeguards and adhere to the requirements for CCV
proceedings. For the following reasons, we agree.
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{¶7} Crim.R. 32.3(A) provides that a “court shall not impose a prison term for violation
of the conditions of a community control sanction … except after a hearing at which the
defendant shall be present and apprised of the grounds on which the action is proposed[.]” This
Court has recognized that defendants accused of violating community control are entitled to at
least the same due process protections as probationers. State v. Lindsay, 9th Dist. Lorain No.
17CA0011206, 2018-Ohio-2871, ¶ 9-11; State v. Osborne, 9th Dist. Lorain No. 15CA010727,
2017-Ohio-785, ¶ 7; State v. Heintz,
146 Ohio St.3d 374,
2016-Ohio-2814, ¶ 16 (noting that, “in
contrast to probation violation and revocation proceedings …, community control violation
hearings are formal, adversarial proceedings.”).
{¶8} The required due process protections, for alleged community control violations,
depend on the stage of the proceedings:
At the preliminary hearing, a probationer or parolee is entitled to notice of the
alleged violations of probation or parole, an opportunity to appear and to present
evidence in his own behalf, a conditional right to confront adverse witnesses, an
independent decisionmaker, and a written report of the hearing. The final hearing
is a less summary one because the decision under consideration is the ultimate
decision to revoke rather than a mere determination of probable cause, but the
‘minimum requirements of due process’ include very similar elements:
‘(a) written notice of the claim violations of (probation or) parole; (b) disclosure to
the (probationer or) parolee of evidence against him; (c) opportunity to be heard in
person and to present witnesses and documentary evidence; (d) the right to confront
and cross-examine adverse witnesses (unless the hearing officer specifically finds
good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing
body such as a traditional parole board, members of which need not be judicial
officers or lawye[rs]; and (f) a written statement by the factfinders as to the evidence
relied on and reasons for revoking (probation or) parole.’
(Internal citations omitted.) Osborne at ¶ 7, quoting Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973),
quoting Morrisey v. Brewer,
408 U.S. 471, 489 (1972). See also State v. Davis, 8th Dist. Cuyahoga
No. 93959,
2010-Ohio-5126, ¶ 26, citing
Gagnon at 786 (recognizing that the trial court must
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provide an alleged sanction-violator with these minimal due process rights before imposing
punishment for a sanction violation).
{¶9} Ms. Bentley did not raise her objections before the trial court and, thus, “has
forfeited all but plain error.” Osborne at ¶ 8, citing Crim.R. 52(B). Plain error occurs if there has
been an error, meaning a deviation from the legal rule; the error was an obvious defect; and the
error affected a substantial right. State v. Barnes, 94 Ohio St.3d 21, 27 (2002). This Court should
take notice of plain error “with the utmost caution, under exceptional circumstances and only to
prevent a manifest miscarriage of justice.” State v. Long,
53 Ohio St.2d 91 (1978), paragraph three
of the syllabus.
{¶10} Ms. Bentley argues that the trial court committed plain error when it deprived her
of her due process rights. Ms. Bentley asserts that she was never properly advised of the evidence
against her for the revocation of community control; she was never advised of the potential penalty
for plea or conviction; she was never advised of her hearing rights, including the right to confront
and cross-examine witnesses; and she was never advised that the state was required to prove the
violations. Ms. Bentley argues that, because she was never properly advised of her rights, she did
not knowingly and voluntarily waive a CCV hearing.
{¶11} We conclude that the trial court failed to properly advise Ms. Bentley of her rights
at the CCV hearings. At the preliminary hearing, as set forth above, Ms. Bentley was entitled to
(1) notice of the alleged violations; (2) an opportunity to appear and to present evidence on her
own behalf; (3) a conditional right to confront adverse witnesses; (4) an independent
decisionmaker; and (5) a written report of the hearing. Osborne at ¶ 7, citing Gagnon, 411 U.S. at
786.
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{¶12} At the final hearing, Ms. Bentley was entitled to (1) written notice of the violations;
(2) disclosure of the evidence against her; (3) opportunity to be heard and present witnesses and
evidence; (4) right to confront and cross-examine adverse witnesses; (5) a neutral and detached
hearing body; and (6) a written statement by the factfinder as to the evidence relied on and reasons
for revoking community control. Id.
{¶13} The following exchange occurred at Ms. Bentley’s preliminary hearing:
JUDGE: And you’re Lacy Bentley?
MS. BENTLEY: Yes.
JUDGE: This is Case 2020 CRC 553. You’ve been charged in a
community control sanction violation, which alleges you’ve violated Rule 5, you
shall report to your probation officer as directed. Violation of Rule 6, you’re not
permitted to purchase, possess, use or have under your control any controlled
substances, intoxicant or drug paraphernalia, except as specifically prescribed to
you by a licensed physician. If you are found in violation of your community
control sanctions, you could be facing, or you could be removed from the
community control sanction program and face further incarceration. Do you
understand that?
MS. BENTLEY: Yes.
JUDGE: The matter is going to be set for a hearing. You have a right to be
represented by an attorney in that hearing. If you have no money or property used
to hire an attorney, one will be appointed for you at no cost to yourself. Do you
understand that? - - You’re going to have to verbalize that, ma’am.
MS. BENTLEY: Yes. Yes, your honor.
The trial court appointed counsel at the preliminary hearing and a final hearing was scheduled.
{¶14} Ms. Bentley appeared at the final hearing with her court-appointed counsel.
Counsel stated at the final hearing:
MS. KENEPP: Your Honor, I have spoke[n] with Ms. Bentley regarding
this matter. It is my understanding today that she is prepared to admit that she was
in violation of her community control sanction.
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JUDGE: And Ms. Bentley, do you understand what’s taking place here
today?
MS. BENTLEY: Yes sir, I do.
{¶15} The record establishes that Ms. Bentley was present at the preliminary hearing and
that the trial court advised her of the alleged Rule 5 and Rule 6 violations. The record also
establishes that the trial court served as the independent decision maker on whether a violation
occurred. See State v. Swails, 8th Dist. Cuyahoga No. 100480, 2014-Ohio-3711, ¶ 14, quoting
State v. Murr,
35 Ohio App.3d 159 (6th Dist.1987).
{¶16} The trial court, however, never informed Ms. Bentley that she had the right to
present evidence on her own behalf and to confront adverse witnesses. Ms. Bentley was not
informed of these rights at either the preliminary or final hearing on her alleged CCV.
{¶17} The record reflects that, at the final hearing, the trial court accepted counsel’s
representation that counsel “spoke with Ms. Bentley regarding this matter. It is my understanding
today that she is prepared to admit that she was in violation of her community control sanction.”
While the trial court directly addressed Ms. Bentley at the final hearing and asked her if she
understood “what’s taking place here today,” it never informed Ms. Bentley of her rights and
determined that Ms. Bentley understood the rights she was waiving. “A waiver is an intentional
relinquishment of a known right. It is ‘applicable to all personal rights and privileges, whether
contractual, statutory, or constitutional.’” (Internal citations omitted.) State v. Sarkozy, 117 Ohio
St.3d 86,
2008-Ohio-509, ¶ 18.
{¶18} The facts of this case are like those that were before the court in State v. Harmon,
2d Dist. Champaign No. 2007CA35, 2008-Ohio-6039. After pleading guilty, the defendant in
Harmon was sentenced to three years of community control. A hearing was scheduled after the
defendant’s probation officer filed a notice of supervision violation. The defendant appeared
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unrepresented for the initial hearing, which was then continued. Counsel appeared with the
defendant for the final hearing, at which the trial court revoked the defendant’s community control
and imposed two 18-month sentences, to be served concurrently.
{¶19} The defendant argued on appeal that her due process rights were violated during
her community control violation hearing. The appellate court agreed. In finding that the
defendant’s due process rights were violated, the appellate court noted that “the trial court accepted
counsel’s representations regarding probable cause and the merits of the matter and proceeded to
disposition without addressing Harmon directly and determining that she understood the two-part
proceeding and the rights she was waiving.” Harmon at ¶ 22. The court further noted that “[t]he
record fails to demonstrate that Harmon knew she had the right to be heard in person during
adjudication, to dispute probable cause and the merits of the violation, to present evidence and
mitigation and to confront any adverse witnesses who may have testified.” Id. The court continued
to conclude that “the trial court rolled through the adjudicatory phase of the hearing to disposition
without addressing Harmon directly and determining if she was intentionally waiving known
rights. In other words, the deprivation of Harmon’s liberty interest did not comport with the
standards which due process of law imposes.”
Id.
{¶20} This Court likewise concludes that Ms. Bentley’s due process rights were violated.
The record fails to establish that Ms. Bentley was advised of the evidence against her; that she had
the right to be heard and present witnesses and evidence; and, that she had the right to confront
and cross-examine adverse witnesses.
{¶21} The trial court was required to inform Ms. Bentley of the right to present evidence
on her own behalf and the right to confront adverse witnesses before imposing a sanction for a
community control violation. The trial court’s failure to “comport with the standards which due
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process of law imposes” is a “procedural error [that] rises to the level of plain error.” Harmon at
¶ 22. The trial court’s failure to advise Ms. Bentley of her rights constitutes plain error as it was a
deviation from what is legally required; was an obvious defect in the proceedings; and affected a
substantial right. See Barnes, 94 Ohio St.3d at 27.
{¶22} We agree with Ms. Bentley that she was deprived of her due process rights and that
this procedural error rises to the level of plain error. Accordingly, Ms. Bentley’s conviction of a
CCV violation is vacated and the cause is remanded for further proceedings consistent with this
opinion.
ASSIGNMENT OF ERROR NO. II
THE COURT ABUSED ITS DISCRETION WHEN IT REVOKED MS.
BENTLEY’S COMMUNITY CONTROL ON THIS RECORD AND THESE
ALLEGATIONS AND THE SENTENCE IS NOT IN ACCORD TO
UNDERLYING SENTENCING PRINCIPLES AND IS UNDULY HARSH
AS REFLECTED BY THE RECORD.
ASSIGNMENT OF ERROR NO. III
MS. BENTLEY WAS DENIED HER RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL GUARANTEED UNDER THE SIXTH
AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I,
SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION.
{¶23} Assignments of Error II and III are rendered moot by our resolution of Assignment
of Error I.
III.
{¶24} This Court sustains the first assignment of error. Assignments of Error II and III
are rendered moot. The judgment of the Wayne County Common Pleas Court is reversed and this
matter is remanded for further proceedings consistent with this decision.
Judgment reversed and remanded.
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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 Wayne, 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 Appellee.
SCOT STEVENSON
FOR THE COURT
SUTTON, P. J.
CARR, J.
CONCUR.
APPEARANCES:
RICHARD P. KUTUCHIEF, Attorney at Law, for Appellant.
ANGELA WYPASEK, Prosecuting Attorney, and DAVID FOLK, Assistant Prosecuting
Attorney, for Appellee.
