[Cite as State v. Backus,
2023-Ohio-3222.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vsCase No. 2022 CA 0041
BRANDY BACKUS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2020 CR 00418
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 11, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
R. KYLE WITT BRIAN A. SMITH
FAIRFIELD COUNTY PROSECUTOR BRIAN A. SMITH LAW FIRM LLC
MARK A. BALAZIK 123 South Miller Road
ASSISTANT PROSECUTOR Suite 250
239 West Main Street, Suite 101 Fairlawn, Ohio 44333
Lancaster, Ohio 43130
Fairfield County, Case No. 2022 CA 0041 2
Wise, J.
{¶1} Appellant Brandy Backus appeals the October 24, 2022, decision of the
Fairfield County Court of Common Pleas revoking her community control and imposing
the reserved 36-month prison sentence.
{¶2} Appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} The relevant facts and procedural history are as follows:
{¶4} On September 3, 2020, the Fairfield County Grand Jury indicted Brandy
Backus on one count of Burglary, in violation of R.C. §2911.12(A)(2), a second-degree
felony.
{¶5} On September 9, 2020, Appellant filed a plea of not guilty by reason of
insanity and a request for a competency evaluation.
{¶6} On December 3, 2020, the trial court found Appellant to be incompetent to
stand trial and ordered Appellant to undergo treatment at Appalachian Behavioral
Healthcare to restore her to competency.
{¶7} On March 31, 2021, the trial court conducted a second competency hearing.
{¶8} On April 15, 2021, the trial court found Appellant to be competent to stand
trial.
{¶9} On July 16, 2021, Appellant entered a plea of guilty to an amended charge
of Burglary, in violation of R.C. §2911.12(A)(3), a third-degree felony.
{¶10} On July 20, 2021, following a hearing, the trial court sentenced Appellant to
five years community control and reserved a 36-month prison sentence.
Fairfield County, Case No. 2022 CA 0041 3
{¶11} On April 29, 2022, the trial court, through Appellant’s probation officer, issued
a holder for Appellant for violation of community control.
{¶12} On September 14, 2022, Appellant’s probation officer filed a Statement of
Violations of Community Control, alleging, inter alia, that Appellant had other pending
criminal charges in the Fairfield County Municipal Court, that she had failed to report to
the Community Control Department as ordered, that she had failed to maintain sobriety,
that she had failed to comply with drug testing and had admitted to using
methamphetamine and THC, that she had failed to be evaluated for mental health and/or
substance abuse counseling needs, that she failed to follow all counseling
recommendations, complete all treatment plans, and take all medications as directed,
and that she had failed to notify her Community Control Officer of an address change.
{¶13} On September 15, 2022, a probable cause hearing was held via
videoconference.
{¶14} On October 10, 2022, a videoconference hearing was held on the motion to
revoke community control wherein Appellant admitted to the violations of the terms and
conditions of community control. At the conclusion of the hearing, the trial court
scheduled a second dispositional hearing to allow time to have Appellant assessed for
suitability for the Mended Reeds program.
{¶15} On October 19, 2022, a final disposition hearing was held via
videoconference on the motion for revocation of community control. At said hearing, the
probation officer opined that despite being an acceptable candidate at Mended Reeds,
it was their opinion that Appellant’s community control should be revoked based on her
repeated drug use, failure to report, and her failure to take her prescribed medications.
Fairfield County, Case No. 2022 CA 0041 4
{¶16} By Judgment Entry filed October 24, 2022, the trial court revoked Appellant’s
community control and imposed the reserved 36-month prison sentence.
{¶17} Appellant now appeals.
ASSIGNMENTS OF ERROR
{¶18} “I. THE TRIAL COURT FAILED TO COMPLY WITH DUE PROCESS
REQUIREMENTS IN REVOKING APPELLANT'S COMMUNITY CONTROL AND
IMPOSING A 36-MONTH PRISON SENTENCE, IN VIOLATION OF APPELLANT'S
RIGHT TO DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE
OHIO CONSTITUTION.
{¶19} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN REVOKING
APPELLANT'S COMMUNITY CONTROL AND IN IMPOSING A 36-MONTH PRISON
SENTENCE.”
I.
{¶20} In her first assignment of error, Appellant argues that the trial court failed to
comply with due process in revoking her community control and imposing a 36-month
prison sentence. We disagree.
{¶21} Specifically, Appellant argues that the State of Ohio failed to disclose its
evidence against Appellant on at least two of the claimed violations, and that the trial
court failed to provide a “a written statement by the fact finders as to the evidence relied
on and the reasons for revocation.” (Appellant’s Brief at 6).
{¶22} It is well settled that community control revocation hearings are not criminal
proceedings. State v. Stafford (Aug. 16, 2001), Tuscarawas App. No. 2000 AP 12 0095.
Fairfield County, Case No. 2022 CA 0041 5
Because a community control revocation proceeding is not a criminal proceeding, it has
been held that the discovery procedures outlined in Crim.R. 16 are inapplicable to the
revocation process. State v. Stafford, supra, citing State v. Parsons (Nov. 15, 1996),
Greene App. No. 96 CA 20. However, even though Crim.R. 16 is inapplicable to
community control revocation proceedings, Appellant is entitled to some minimum due
process rights including disclosure to the probationer of the evidence against her. State
v. Shuman, supra, 2010-Ohio-3957 at ¶ 22.
{¶23} In order to comport with due process, a trial court must adhere to the
following conditions when ruling on a defendant's guilt in relation to a community control
violation: “(a) written notice of the claimed violations; (b) disclosure of evidence against
the defendant; (c) the opportunity to be heard in person and to present witnesses and
documentary evidence; (d) the right to confront and cross-examine adverse witnesses;
(e) a neutral and detached hearing body; and (f) a written statement by the fact finders
as to the evidence relied on and reasons for revocation.” Middlebrooks, supra, 5th Dist.
Tuscarawas No. 2010 AP 08 0026, 2011-Ohio-4534, ¶ 16, citing Pavlich, supra, at ¶ 25,
internal citations omitted.
{¶24} Appellant herein asserts the State failed to disclose its evidence against her
with regard to (1) her failure to take medication as legally prescribed, and (2) her failure
to be evaluated for mental health and/or substance abuse needs, and (3) her failure to
follow all counseling recommendations, complete all treatment plans, and take all
medications as directed. (Statement of Violations of Community Control, Sept. 14, 2022
at 2).
Fairfield County, Case No. 2022 CA 0041 6
{¶25} Upon review, we find Appellant's due process rights were not violated in
regard to the disclosure of evidence. Appellant received notice of the violations; a first-
stage hearing was held upon the motion to revoke and the court found probable cause
to believe Appellant violated terms of her community control, in part on Appellant’s
admissions to the violations; and finally, Appellant waived a full evidentiary hearing.
Shuman, supra, ¶ 23.
{¶26} Accordingly, we find no due process violation as to the disclosure of
evidence against Appellant.
{¶27} Appellant also contends that her due process rights were violated because
the trial court did not issue written findings of fact for revoking community control
sanctions and the evidence it relied on.
{¶28} “A court need not issue a written opinion where it sufficiently explains its
reasons and the evidence relied on to the defendant on the record such that a sufficient
record exists for appellate review.” State v. Harian, 8th Dist. No. 97269, 2012–Ohio–
2492, ¶ 22, citing State v. Delaney, 11 Ohio St.3d 231, 235,
465 N.E.2d 72 (1984); State
v. Martin, 8th Dist. No. 82140, 2003–Ohio–3381, ¶ 23; State v. Fonte, 8th Dist. Cuyahoga
No. 98144,
2013-Ohio-98, ¶ 15
{¶29} Here, at the Disposition Hearing, the trial court stated on the record:
The Court has considered everything that’s been stated here today,
Ms. Backus, and the record of this case. I’m not going to belabor the point,
Ms. Backus. You were given a tremendous break last time when you were
sentenced in this court for a victim oriented offense of burglary. Your
attorney advocated very strongly on your behalf and gave as reasons for
Fairfield County, Case No. 2022 CA 0041 7
the board to sentence you directly to community control, your underlying
mental health and substance abuse issues. The Court ultimately agreed
with your prior counsel and at least at that time that the Court could work
with you on community supervision. And that was despite the fact that
previously you have been convicted of a felony offense of failure to comply
with order or signal of a police officer, been to prison, granted judicial
release and violated probation. That is why I say you have been given a
tremendous opportunity previously when the Court sentenced you directly
to community control supervision.
Now beyond that, I would point out as I’ve asked Ms. Pizzuto about,
you’ve already been to a community based correctional facility program in
your last case, you had multiple prior probation violations for not showing
up and for using drugs and ultimately your probation was terminated.
Beyond that, on the misdemeanor level, you have convictions for theft
offenses, failure to comply with the police order, driving under the influence,
falsification, obstruction of official business, another failure to comply,
domestic violence, and a violence of a TPO.
It seems that you have difficulty following the law and it is concerning
when the courts not only this one, but municipal court in transferring you to
their mental health docket and supervising you on multiple occasions, many
of which was [sic] not successful because you violated probation, have
given you opportunities for change.
Fairfield County, Case No. 2022 CA 0041 8
Ms. Backus, I don’t think that you are a hopeless case. I don’t want to
give you that impression at all. But my concern is that you are largely a risk
to yourself by your unaddressed mental health issues and your
unaddressed drug use and I’m concerned that you are associating with
known drug users, that you are susceptible of being influenced by them,
that you medicate yourself, that you won’t take your mental health
medications and you don’t report when you are supposed to. This all leads
me to conclude that what you need most is to be in a situation where you
cannot walk away from it. And what you need most is a stable situation for
a long period of time and to engage in some positive programming at the
Marysville Reformatory for Women.
I am certain that you don’t agree with the Court’s decision in that
regard that the Court is looking out for your best interests here, Ms. Backus,
long-term. Many other options have been attempted and employed, and the
Court now orders into effect the previously stated term of incarceration of
36 months in the Ohio Department of Rehabilitation and Corrections with
255 days jail time credit. You are to pay court costs and $25 court appointed
counsel fee.
And the Court has previously informed you of the post release control
consequences which apply and adopts those as part of it’s [sic] judgment
here today.
(Disp. T. at 10-13)
Fairfield County, Case No. 2022 CA 0041 9
{¶30} The record more than sufficiently explains the court's reasons for revoking
Appellant's community control sanctions. Appellant's argument therefore is without merit.
State v. Fonte, 8th Dist. Cuyahoga No. 98144, 2013-Ohio-98, ¶ 16
{¶31} Appellant’s first assignment of error is overruled.
II.
{¶32} In her second assignment of error, Appellant argues the trial court abused
its discretion in revoking her community control and imposing the reserved sentence of
36 months. We disagree.
{¶33} A community-control revocation hearing is not a criminal trial; therefore, the
state is not required to establish a violation of the terms of community control “beyond a
reasonable doubt.” State v. Middlebrooks, 5th Dist. Tuscarawas No. 2010 AP 08 0026,
2011-Ohio-4534, ¶ 14, citing State v. Pavlich, 6th Dist. Erie No. E–10–011, 2011-Ohio-
802, ¶ 7, internal citations omitted. Instead, appellee must show “substantial” proof that
the offender violated the terms of his or her community control sanctions.
Id., citing State
v. Ryan, 3d Dist. Union No. 14–06–55,
2007-Ohio-4743, ¶ 7. “Substantial evidence” is
akin to a preponderance-of-the-evidence burden of proof. State v. Ohly,
166 Ohio App.3d
808,
2006-Ohio-2353,
853 N.E.2d 675, at ¶ 18 (6th Dist.), internal citation omitted.
Substantial evidence is more than a mere scintilla of evidence, but somewhat less than
a preponderance.
Middlebrooks, supra,2011-Ohio-4534 at ¶ 14, citing State v. Gomez,
11th Dist. No. 93–L–080 (Feb. 18, 1994).
{¶34} Appellee is only required to establish substantial evidence that Appellant
violated any one of the conditions of her community-control sanction. “Probation rests
upon the probationer's compliance with the probation conditions and any violation of
Fairfield County, Case No. 2022 CA 0041 10
those conditions may properly be used to revoke the privilege.” State v. Bell, 66 Ohio
App.3d 52, 57,
583 N.E.2d 414 (5th Dist.1990).
{¶35} Once a court finds that a defendant violated the terms of his community-
control sanction, the court's decision to revoke community control may be reversed on
appeal only if the court abused its discretion. State v. Shuman, 5th Dist. Stark No.
2009CA00271, 2010-Ohio-3957, ¶ 27, citing Columbus v. Bickel,
77 Ohio App.3d 26, 38,
601 N.E.2d 61 (1991). An abuse of discretion connotes more than an error in law or
judgment; it implies that the court's attitude is unreasonable, arbitrary, or
unconscionable. State v. Maurer,
15 Ohio St.3d 239, 253,
473 N.E.2d 768 (1984).
{¶36} We note the weight to be given to the evidence and the credibility of the
witnesses are issues for the trier of fact in a revocation proceeding. Shuman, supra,
2010-Ohio-3957, ¶ 27, citing State v. Jamison,
49 Ohio St.3d 182,
552 N.E.2d 180
(1990), certiorari denied,
498 U.S. 881,
111 S.Ct. 228,
112 L.Ed.2d 183 (1990).
Reviewing courts should accord deference to the trial court's decision because the trial
court has had the opportunity to observe the witnesses' demeanor, gestures, and voice
inflections, which cannot be conveyed to us through the written record.
Id.
{¶37} A review of the record does not support a finding that the trial court abused
its discretion. Appellant herein admitted to violating the terms and conditions of her
community control, waived the second hearing and chose to proceed to mitigation. (Oct.
10, 2022 T. at 3, 8). Further, we find that testimony was presented by her probation
officer as to numerous violations by Appellant which included using drugs, absconding,
failing to take prescribed medication, and failing to report.
Fairfield County, Case No. 2022 CA 0041 11
{¶38} Based on the foregoing, including Appellant’s numerous violations of the
conditions of her community control as set forth above, we find Appellee presented
substantial proof Appellant violated terms of her community control, and the trial court's
decision was not an abuse of discretion.
{¶39} Accordingly, our review of the record shows the trial court's decision to
revoke Appellant's community control sanctions to be within its discretion, and Appellant
was afforded due process during the revocation proceedings.
{¶40} Appellant’s second assignment of error is overruled.
{¶41} For the forgoing reasons, the judgment of the Court of Common Pleas,
Fairfield County, Ohio, is affirmed
By: Wise, J.
Hoffman, P. J., and
Delaney, J., concur.
JWW/kw 0906
