[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Heinz, Slip Opinion No. 2016-Ohio-2814.]

NOTICE This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of De cisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O

. 2016-O HIO -2814

T HE S TATE OF O HIO , A PPELLANT , v. H EINZ , A PPELLEE

. [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Heinz, Slip Opinion No. 2016-Ohio-2814.] R.C. 309.08—The state is a party to all community-control-violation proceedings, and the county prosecuting attorney, as th e state’s legal representative, is entitled to notice and an opportunity to be heard at such proceedings. (No. 2015-1288—Submitted February 10, 2016—Decided May 5, 2016.)

A PPEAL from the Court of Appeals for Cuyahoga County, No. 102178, 2015-Ohio-2763.

_______________ O’D ONNELL , J. {¶ 1} The state of Ohio appeals from a judgment of the Eighth District Court of Appeals affirming a standing order of Judge John Sutula that denied the Cuyahoga County Prosecuting Attorney the opportunity to represent the state in a community control sanction violation a nd revocation hearing involving Joseph

Heinz. The trial court concluded that th e probation department represents the stateS UPREME C OURT OF O HIO

2 in revocation proceedings, a nd the appellate court held that the state’s traditional role is adequately represente d by the probation department. {¶ 2} The prosecuting attorney has the authority to prosecute all complaints, suits, and controversies in whic h the state is a party, and because the state is a party to community control violation proceedings, because it has the burden of proving that a violation occurred, because it maintains an interest in ensuring that the proper sentence is imposed to punish and rehabilitate the offender while protecting the safety of the public, and because it is res ponsible for preserving error for appeal, the state, through the prosecuting attorney, is entitled to notice and an opportunity to be heard in all such hearings. {¶ 3} Accordingly, we reverse the judgment of the appellate court and remand the matter to the trial court with instructions to reschedule the community control violation hearing and to provide the prosecuting attorney and the offender notice of and an opportunity to be heard at that hearing. Facts and Procedural History {¶ 4} In December 2011, Heinz pleaded guilty to attempted abduction, a fourth-degree felony, and the trial cour t sentenced him to a 24-month term of community control. In April 2012 and in November 2013, the trial court found that Heinz had violated the terms of his community control by testing positive for marijuana. As a result, it extended the term of community control to December

2015. {¶ 5} In February 2014, the court issued a standing order declaring that the county probation department, not the Cuyahoga County Prosecuting Attorney, represents the state in all community control violation proceedings and that the prosecutor would not be notified of any future hearings, stating:

In the event the Prosecutor’s Office desires to speak at a hearing, it may only do so with leave of Court. A Request for Leave to be HeardJanuary Term, 2016

3 shall be filed no later than 2 days before the scheduled probation revocation hearing and shall include any evidence and witnesses supporting the claimed violations. Case specific statements as to the violation shall be set forth in detail in a brief attached to the request. The Request for Leave to be Hear d shall be served on the Probation Department, Counsel for the Defe ndant and the Defendant, should the Defendant wish to proceed pro se, at least 2 days prior to the hearing.

{¶ 6} On September 17, 2014, Heinz submitte d a diluted urine sample for drug testing. The court conducted a co mmunity control violation hearing on October 14, 2014, during which it noted that the probation officer was “[r]epresenting the interests of the State of Ohio.” An assistant prosecuting attorney addressed the court and asserted the right to be present and heard. After determining that the prosecutor had not given prior notice of an intent to appear at the hearing, the trial court denied the pr osecuting attorney an opportunity to speak.

The court then found that Heinz had violat ed the conditions of community control and imposed a 14-day jail sentence. {¶ 7} The court of appeals granted the state leave to appeal but affirmed the judgment of the trial court, explaini ng that “because a community control revocation hearing is not clothed in the formal trappings of a criminal prosecution, * * * the state’s role as contemplated by R.C. 309.08 is not implicated. * * * Thus, the state’s traditional role is adequately represented by the probation department.” 2015-Ohio-2763, 34 N.E.3d 1003, ¶ 15 (8th Dist.). The court stated that “the probation department, and not the prosecutor’ s office, is the entity entrusted with the authority to properly institute co mmunity control violation proceedings,” id . at ¶ 12, that “any contribution from the a ssistant prosecutor would arguably be cumulative,” id. at ¶ 16, and that “the trial cour t’s standing order that lays theS UPREME C OURT OF O HIO

4 groundwork for the prosecutor’s office to pa rticipate in the violation proceedings

did not constitute an abuse of discretion,” id. at ¶ 21. The state appealed that decision to our court, urging its righ t to be part of such proceedings.

Positions of the Parties {¶ 8} On appeal to this court, the state maintains that it is a party to community control violation proceedings and that the prosecutor, as the state’s legal representative, is ther efore entitled to notice and an opportunity to be heard at such hearings. The state notes that R.C. 309.08 directs the prosecuting attorney to prosecute all complaints, suits, and controversies in which the state is a party and argues that this language necessarily includes civil proceedings such as a community control violation hearing and an y sentencing hearing that results from

it. The state contends that R.C. 2929.15, which places an offender who is on community control under the supervision of the probation department, authorizes probation officers only to report a violation, not to prosecute it, and that the trial court’s standing order deprives the state of legal representation at such hearings and prevents it from meeting its burden to pr ove a violation of community control sanctions. According to the state, it viol ates the separation-of-powers doctrine for employees of the probation department, an ar m of the court, to supplant the role of executive-branch prosecutors in representing the state at a hearing, and it violates due process to deprive the state of no tice and an opportunity to be heard. {¶ 9} Heinz emphasizes the distinctions between criminal prosecutions and community control violation hearings, a nd he notes that the informality of a violation hearing explains why this court and the United States Supreme Court have recognized that it is the probation officer that traditionally represents the state in these hearings. He points out that employees of the Adult Parole Authority, not prosecuting attorneys, handle parole and postrelease control violation proceedings. He also argues that the state’s separati on-of-powers claim is without merit because representing the state at viol ation hearings is not one of the county prosecutor’sJanuary Term, 2016

5 fundamental constitutional du ties. Heinz points out that unlike R.C. 2929.19 and Crim.R. 32(A)(2), which expressly afford the prosecutor an opportunity to speak at sentencing, neither R.C. 2929.15 nor Crim.R. 32.3 grant the prosecutor the right to participate at a community control viola tion hearing. And because R.C. 2929.15 is the more specific statute, Heinz claims , it controls over R.C. 309.08 and vests the probation department, not the prosecutor, w ith authority to represent the state. Moreover, according to Heinz, if the stat e’s reading of R.C. 309.08 is correct, then the prosecuting attorney has a mandatory duty to appear at all community control, postrelease control, and parole violati on hearings, but the legislature has not expressed an intent to change the establis hed historical practice where, he asserts, probation officers represent the state. {¶ 10} Thus, the issue is whether the county prosecuting attorney has a right to notice of and the opportunity to represen t the state at community control violation proceedings. Law and Analysis

Probation {¶ 11} From a historical perspective, our jurisprudence has described a suspension of sentence and grant of probation as an act of grace allowing a convict to go free on conditions and as a contract for leniency between the offender and the sentencing judge. State v. Anderson , 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 21; Thomas v. Maxwell , 175 Ohio St. 233, 235, 193 N.E.2d 150 (1963); In re Varner , 166 Ohio St. 340, 343, 142 N.E.2d 846 (1957), citing Escoe

v. Zerbst , 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935). However, probation is not a remission of penalty; the convict remains under the supervision of the court and subject to any restraints and cond itions imposed, and a breach of those conditions permits imposition of the suspended prison sentence. Anderson at ¶ 21; State ex rel. Gordon v. Zangerle , 136 Ohio St. 371, 376-377, 26 N.E.2d 190 (1940). The General Assembly therefore authorized the common pleas courts to establishS UPREME C OURT OF O HIO

6 county probation departments to support th e judicial function of supervising probationers. R.C. 2301.27(A)(1); Gordon at paragraph four of the syllabus. {¶ 12} In Gagnon v. Scarpelli , 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the United State Supreme Court held that a probationer generally lacks a constitutional right to counsel at a revoca tion proceeding. The court stated that probation revocation “is not a st age of a criminal prosecution,” id . at 782, and it distinguished the criminal trial—an adve rsarial proceeding where the state is represented by an attorney—from the revocation hearing, where “the State is represented, not by a prosecutor, but by a parole officer,” id . at 789. The court justified its holding that counsel need not always be provided at revocation proceedings by pointing to the informal nature of the revocation proceeding, noting that “[i]f counsel is provided for the proba tioner or parolee, the State in turn will normally provide its own couns el,” transforming the informal hearing into a formal, adversarial proceeding. Id. at 787. {¶ 13} Despite those statements, the court held that before probation can be revoked, due process requires the state to give the probationer written notice of the alleged violation, disclosu re of adverse evidence, an opportunity to present evidence in his own behalf and to confront and cross-examine adverse witnesses, an impartial hearing, and written findi ngs supporting the decision to revoke probation. See id. at 786. Community Control {¶ 14} Effective July 1, 1996, the General Assembly enacted Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136 to revise Ohio’s felony sentencing statutes, and among other changes, “community control replaced probation as a possible

sentence under Ohio’s felony sentencing law.” (Emphasis added.) State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, ¶ 16. Unlike probation, which is a period of time served during suspension of a sentence, community control sanctions are imposed as the punish ment for an offense at a sentencingJanuary Term, 2016

7 hearing. R.C. 2929.01(E); R.C. 2929.01(FF). These sanctions include community

residential sanctions pursuant to R.C. 2929.16 (mandated residence in communitybased correctional facilities, halfway houses, and alterna tive residentia l facilities), nonresidential sanctions pursuant to R.C. 2929.17 (including house arrest, electronic monitoring, comm unity service, probation supervision, and curfews),

and financial sancti ons pursuant to R.C. 2929.18 (restitution, fines, and costs of prosecution and community control). {¶ 15} The revocation of community control is an exercise of the sentencing court’s criminal jurisdicti on, and pursuant to R.C. 2929.15(B)(1), the court may extend the term of the offender’s community control or impose a more restrictive sanction or a prison term if the conditions of community control are violated. As we explained in State v. Fraley , 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17, “[f]ollowing a community control violation, the trial court conducts a second sentencing hearing. At this sec ond hearing, the court sentences the offender anew and must comply with the relevant sentencing statutes.” And at a sentencing hearing, “[t]he state has the right to be present * * *.” State v. Simpkins , 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 44, fn. 2 (Lanzinger, J., dissenting). {¶ 16} Thus, in contrast to probation vi olation and revocation proceedings as described by the court in Gagnon , community control violation hearings are formal, adversarial proceedings. Moreover, at community control violation hearings, the Rules of Criminal Procedure af ford an offender the right to counsel, Crim.R. 32.3(B), and pursuant to R.C. 2930.09, a victim in the case has the right to be present. And, relevant here, R. C. 309.08(A) expressly grants the county prosecuting attorney the authority to “prosecute, on behalf of the state, all complaints, suits, and controversies in which the state is a party.” {¶ 17} As the court explained long ago in Wright v. Schick , 134 Ohio St. 193, 198, 16 N.E.2d 321 (1938), “[t]he term ‘parties’ in its broad legal sense

includes all who have an interest in the subject matter of the particular litigation,S UPREME C OURT OF O HIO

8 who have the right to control the proceedin gs, to make defense, to adduce evidence, to cross-examine witnesses and to appeal the proceedings, if an appeal lies.” (Emphasis deleted.) Thus, contrary to the views of the trial and appellate court, the state is a party to a community control violation proceeding. {¶ 18} Our resolution of this issue is bolstered by the many courts throughout Ohio that have held that it is the state that bears the burden of proving that a community contro l violation occurred. See, e.g., State v. Wagner , 179 Ohio App.3d 165, 2008-Ohio-5765, 900 N.E.2d 1089 (2d Dist.), ¶ 35; State v. Johnson

, 3d Dist. Seneca Nos. 13-15-08 and 13-15-09, 2015-Ohio-4802, ¶ 29; State v.

Johnson , 4th Dist. Meigs No. 14CA10, 2015-Ohio-1373, ¶ 13; State v. Wright , 5th Dist. Stark No. 2013CA00011, 2013-Ohio-2733, ¶ 16; State v. Miller , 6th Dist. Fulton No. F-05-016, 2006-Ohio-4810, ¶ 13; State v. Clark , 7th Dist. Mahoning No. 12-MA-1, 2012-Ohio-5570, ¶ 11; State v. Tooley , 9th Dist. Medina Nos. 09CA0098-M, 09CA0099-M, and 09C A0100-M, 2011-Ohio-2449, ¶ 2. {¶ 19} Furthermore, R.C. 2929.19(A) and Crim.R. 32(A)(2) direct the trial court at the time of imposing sentence to afford the prosecuting attorney the right to appear and speak on behalf of the state, because it has an interest in ensuring that a proper sentence is imposed to punish and rehabilitate the offender while protecting the public, R.C. 2929.11(A). These same statutes apply when the court decides the appropriate sentence fo r a community control violation. Fraley at ¶ 17. And R.C. 2945.67 grants the prosecuting attorney the authority to seek leave to appeal from an adverse decision of the trial court at that sentencing. {¶ 20} In addition, the views of both the tr ial and appellate courts that a probation officer can represent the state at community control violation hearings is patently wrong, because no authority exists for the proposition that a probation officer may represent the state in any proceeding, including a community control violation hearing. Although R.C. 2929.15(A)(2)(a) requires the court to place an offender sentenced to community control “under the general control andJanuary Term, 2016

9 supervision of a department of probation in the county that serves the court” and R.C. 2929.15(A)(2)(b) directs that any viola tion be reported to the probation officer or the sentencing court, nothing in those statutes permits the probation department to prosecute the violation it reports to the court or otherwise represent the state in litigation. Indeed, the majority of proba tion officers are not attorneys, and under the trial court’s order, they would be compelled to engage in the unauthorized practice of law. Moreover, they could not be expected to competently represent the state or to make the proper objections for the record in the event of an appeal. And a probation officer cannot file an appeal on behalf of the state. The trial court order issued in this case complicated the process of appeal and undermined the prosecuting attorney’s authority to represent the state on appeal from community control violation hearings. {¶ 21} Because the state is a party to all community control violation proceedings, the prosecuting attorney is the state’s legal representative in those proceedings pursuant to R.C. 309.08(A) a nd is therefore entitled to proper notice and an opportunity to be heard at all community control violation proceedings. {¶ 22} Our conclusion accords with decisions of other courts deciding that the prosecuting attorney represents the state. Kentucky v. Goff , 472 S.W.3d 181, 192 (Ky.App.2015) (“a Commonwealth’s Atto rney is entitled to receive proper notice of every court-initiated probation hearing, to attend all such hearings, and to participate therein”); State v. Young , 154 Ohio App.3d 609, 2003-Ohio-4501, 798 N.E.2d 629, ¶ 7 (3d Dist.) (“A violation of community-control sanctions * * * is certainly within the concept of ‘complaint s, suits, and controversies’ in which the state remains an interested party”); Kansas v. Malbrough , 5 Kan.App.2d 295, 297, 615 P.2d 165 (1980) (explaining that the distri ct attorney has authority to prosecute a violation of the conditions of probation); New Mexico v. Paul , 82 N.M. 791, 1971- NMCA-107, 487 P.2d 493, ¶ 7-8 (same).S UPREME C OURT OF O HIO

10 Conclusion {¶ 23} The General Assembly has implemented an adversarial system of criminal justice in which the parties to a case contest the issues before a court of law, and it has vested county prosecuting a ttorneys with the authority to represent the state in those proceedings. Thus, as the state’s legal representative, the prosecuting attorney is entitled to proper notice and an opportunity to appear and be heard at proceedings in which the stat e is a party, including community control violation proceedings. {¶ 24} Here, while purporting to follow Gagnon , the trial court and the court of appeals misconstrued R.C. 2929.15 regarding community control violations and erroneously vested proba tion officers, not prosecutors, with the authority to represent the interests of the state, wholly contrary to this court’s traditional role to admit to the practice of law those representing other parties in a court of law. And while the probation department has authority to supervise offenders and to report any violation of community control to the trial court, probation officers are not authorized to prosecute those violations. {¶ 25} Accordingly, we reverse the judgme nt of the court of appeals and remand the matter to the trial court for further proceedings consistent with this opinion. Judgment reversed

and cause remanded.

O’C ONNOR , C.J., and P FEIFER , L ANZINGER , K ENNEDY , F RENCH , and

O’N EILL , JJ., concur.

_________________ Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, Mary H. McGrath, and T. Allan Regas, Assistant Prosecuting Attorneys, for appellant.January Term, 2016

11 Robert L. Tobik, Cuyahoga County P ublic Defender, and Cullen Sweeney and John T. Martin, Assistant P ublic Defenders, for appellee.

_________________