[Cite as State v. Fountain, 2023-Ohio-3111.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

SENECA COUNTY

STATE OF OHIO,

 PLAINTIFF-APPELLEE, CASE NO. 13-23-09

 v.

CASEY L. FOUNTAIN, O P I N I O N

 DEFENDANT-APPELLANT.

STATE OF OHIO,

 PLAINTIFF-APPELLEE, CASE NO. 13-23-10

 v.

CASEY L. FOUNTAIN, O P I N I O N

 DEFENDANT-APPELLANT.

Appeals from Seneca County Common Pleas Court

Trial Court Nos. 19 CR 0167 and 20 CR 0023

Judgments Reversed and Cause Remanded

Date of Decision: September 5, 2023 

APPEARANCES:

John M. Kahler, II for Appellant

Derek W. DeVine for Appellee
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ZIMMERMAN, J.

{¶1} Defendant-appellant, Casey L. Fountain (“Fountain”), appeals the

March 22, 2023 judgment entries of the Seneca County Court of Common Pleas

extending her community control. For the reasons that follow, we reverse.

{¶2} On August 15, 2019, the Seneca County Grand Jury indicted Fountain 

in case number 19CR0167 on Count One of passing bad checks in violation of R.C. 

2913.11(B), (F), a first-degree misdemeanor, and Count Two of counterfeiting in 

violation of R.C. 2913.30(B)(2), (C), a fourth-degree felony. On August 29, 2019, 

Fountain appeared for arraignment and entered pleas of not guilty to the charges set 

forth in the indictment.

{¶3} On October 1, 2019, Fountain withdrew her pleas of not guilty and 

entered a guilty plea, under a negotiated-plea agreement, to Count Two. In 

exchange for her change of plea, the State agreed to dismiss Count One as well as 

to a joint-sentencing recommendation. The trial court accepted Fountain’s guilty 

plea, found her guilty, dismissed Count One, and ordered a pre-sentence 

investigation. 

{¶4} On October 30, 2019, the trial court sentenced Fountain (based on the 

joint-sentencing recommendation of the parties) to two years of community-control

sanctions, including that she pay restitution to the Tiffin Fostoria Municipal court, 

that she pay a supervision fee, and that she pay court costs within one year. (Doc. 
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No. 30-31).1 Importantly, Fountain did not directly appeal her conviction or 

sentence.

{¶5} On February 20, 2020, the Seneca County Grand Jury indicted Fountain 

in case number 20CR0023 on a single count of tampering with evidence in violation 

of R.C. 2921.12(A)(2), (B), a third-degree felony. Fountain appeared for 

arraignment on March 11, 2020 and entered a plea of not guilty to the charge set 

forth in the new indictment. On April 7, 2020, Fountain withdrew her plea of not 

guilty and entered a guilty plea, under a negotiated-plea agreement, to the new 

indictment. In exchange for her change of plea, the State agreed to a jointsentencing recommendation. That same day, the trial court accepted Fountain’s 

guilty plea, found her guilty, and sentenced her (based on the joint-sentencing 

recommendation of the parties) to three years of community-control, including that 

she pay a supervision fee and that she pay court costs within one year. (Case No. 

20CR0023, Doc. No. 15-16). Once again, Fountain did not directly appeal her 

conviction or sentence.

{¶6} Also on February 20, 2020, the State filed a motion in case number 

19CR0167 requesting that the trial court revoke Fountain’s community control for 

violating the terms of her community-control sanctions. Following a probablecause hearing on March 11, 2020, the case proceeded to a final-revocation hearing

1 The trial court filed a nunc pro tunc judgment entry of sentence on November 13, 2019 to correct a clerical 

error. (Doc. No. 34).
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on April 7, 2020, during which the trial court concluded that Fountain violated the 

terms and conditions of her community-control sanctions after she “admitted that 

she violated her terms of community control as alleged * * * .” (Case No. 

19CR0167, Doc. No. 43-44). The trial court sentenced Fountain to an additional 

year of community control with the additional sanctions that she “enter and 

successfully complete” “the PIVOT drug recovery program,” that she serve 90 days 

in jail, that she pay restitution to the Tiffin Fostoria Municipal Court, and that she 

pay court costs within one year. (Id.). Fountain did not directly appeal the trial 

court’s determination that she violated the terms and conditions of her communitycontrol sanctions or its imposition of additional sanctions. 

{¶7} On March 22, 2022, the State filed a motion in the trial court in both 

cases requesting that Fountain’s community control be extended “until November 

3, 2023, in order for her to be successfully discharged from the PIVOT drug 

recovery program for the period of one (1) year (with no issues), before being 

successfully terminated from probation.” (Case No. 19CR0167, Doc. No. 54); 

(Case No. 20CR0023, Doc. No. 27). That same day, the trial court granted the 

State’s motions (without a hearing) after concluding that Fountain “is still in need 

of supervision” and “needs additional time to have her financial obligations paid in 

full.” (Case No. 19CR0167, Doc. No. 55); (Case No. 20CR0023, Doc. No. 28). 

Consequently, the trial court continued Fountain’s community control in case 
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number 19CR0167 until October 29, 2024 and continued Fountain’s community 

control in case number 20CR0023 until April 6, 2025.

{¶8} On April 21, 2022, Fountain filed her notice of appeal in both cases. 

This court consolidated the cases for purposes of appeal. Fountain raises two

assignments of error for our review, which we will discuss together. 

First Assignment of Error

The trial court committed reversible error by summarily 

extending the period of probation previously imposed without 

prior notice and in the absence of evidence sufficient to warrant 

the extension.

Second Assignment of Error

The trial court erred and deprived appellant of due process of law 

as guaranteed by the United States and Ohio Constitutions by 

extending appellant’s probation without adequate prior notice 

and in the absence of sufficient evidence to justify the extension.

{¶9} In her assignments of error, Fountain argues that the trial court abused 

its discretion by extending her community control. Specifically, Fountain contends 

that the trial court abused its discretion by extending her community control because 

she did not violate the terms and conditions of her community-control sanctions. 

Further, Fountain argues that “[t]he trial court erred in extending [her] community 

control without first affording her the basic right to notice and a hearing before doing 

so.” (Appellant’s Brief at 12).
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Standard of Review

{¶10} “A trial court’s decision finding a violation of community control will 

not be disturbed on appeal absent an abuse of discretion.” State v. Ryan, 3d Dist. 

Union No. 14-06-55, 2007-Ohio-4743, ¶ 7. See also State v. Griffin, 8th Dist. 

Cuyahoga No. 103112, 2016-Ohio-937, ¶ 12 (noting that courts of appeal review a 

trial court’s decision to extend community control for an abuse of discretion). An 

abuse of discretion suggests that a decision is unreasonable, arbitrary, or 

unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980). 

Analysis

{¶11} “‘A defendant under community control is entitled to both a 

preliminary and a final revocation hearing.’” State v. Knerr, 3d Dist. Auglaize No. 

2-14-03, 2014-Ohio-3988, ¶ 14, quoting State v. Kiser, 5th Dist. Tuscarawas, 

No.2008 AP 030014, 2009-Ohio-1337, ¶ 12. “The purpose of the preliminary 

hearing is to determine if probable cause exists to believe the defendant has violated 

the terms of his probation or community control.” Id. “The purpose of the final 

revocation hearing is to give the defendant ‘an opportunity to be heard and to show’ 

that he either did not violate his conditions or that certain mitigating circumstances 

‘suggest that the violation does not warrant revocation.’” Id., quoting Morrissey v. 

Brewer, 408 U.S. 471, 488, 92 S.Ct. 2593 (1972).
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{¶12} “This Court has held that although a revocation proceeding must 

comport with the requirements of due process, it is not a criminal proceeding. State 

v. McKeithen, 3d Dist. Marion No. 9-08-29, 2009-Ohio-84, ¶ 22. “Therefore, the 

minimum due process requirements afforded a defendant in a probation revocation 

proceeding differ from those in a criminal trial.” Id.

{¶13} Importantly, “[b]ecause the revocation of probation entails a serious 

loss of liberty, a probationer must be accorded due process at [a] revocation 

hearing.” State v. Jones, 8th Dist. Cuyahoga No. 102999, 2016-Ohio-2626, ¶ 10, 

quoting State v. Bailey, 8th Dist. Cuyahoga No. 103114, 2016-Ohio-494, ¶ 9. At a 

minimum, the due-process requirements for revocation hearings include (1) written 

notice of the claimed violations; (2) disclosure of evidence against him or her; (3) 

the opportunity to be heard in person and to present witnesses and documentary 

evidence; (4) the right to confront and cross-examine adverse witnesses; (5) a 

neutral and detached hearing body; and (6) a written statement by the fact finder as 

to the evidence relied on and reasons for revocation. McKeithen at ¶ 22.

{¶14} Furthermore, “Crim.R. 32.3, which provides the procedural 

framework that is to occur at a community-control-revocation hearing, provides,” 

in its relevant part, as follows:

“(A) Hearing. The court shall not impose a prison term for violation 

of the conditions of a community control sanction or revoke probation 

except after a hearing at which the defendant shall be present and 
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apprised of the grounds on which action is proposed. The defendant 

may be admitted to bail pending hearing.

(B) Counsel. The defendant shall have the right to be represented by 

retained counsel and shall be so advised. Where a defendant convicted 

of a serious offense is unable to obtain counsel, counsel shall be 

assigned to represent the defendant, unless the defendant after being 

fully advised of his or her right to assigned counsel, knowingly, 

intelligently, and voluntarily waives the right to counsel. Where a 

defendant convicted of a petty offense is unable to obtain counsel, the 

court may assign counsel to represent the defendant.”

(Emphasis added.) State v. Clark, 3d Dist. Union No. 14-22-01, 2022-Ohio-2539, 

¶ 9, quoting Crim.R. 32.3(A)-(B).

{¶15} Since a community-control-revocation hearing is not a criminal 

proceeding, “the State is not required to prove a violation of the terms of community 

control beyond a reasonable doubt.” McKeithen at ¶ 6. “The State must, instead, 

show ‘substantial’ evidence that the offender violated the terms of his community 

control sanctions.” Id. This court has stated that “‘[s]ubstantial evidence is akin to 

a preponderance-of-the-evidence burden of proof.’” State v. Boykins, 3d Dist. 

Marion No. 9-14-28, 2015-Ohio-1341, ¶ 21, quoting State v. Burdette, 5th Dist. 

Morrow No. 10-CA-9, 2011-Ohio-4425, ¶ 26, citing State v. Ohly, 166 Ohio App.3d 

808, 2006-Ohio-2353, ¶ 18 (6th Dist.). “‘Substantial evidence is considered to 

consist of more than a mere scintilla of evidence, but somewhat less than a 

preponderance.’” Id., quoting Burdette at ¶ 26. 
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{¶16} In this case, Fountain argues that the trial court abused its discretion 

by extending her community control since she “was not given notice of the request 

or any opportunity to be heard on the request prior to the trial court summarily 

granting it.” (Appellant’s Brief at 10). Furthermore, Fountain contends that, even 

had the trial court afforded her the minimum due process requirements, “the trial 

court erred in extending [her] community control due to her non-payment of court 

costs or any other financial sanctions other than fines, and [she] was not ordered to 

pay any fines.” (Id.). In response, the State argues that “the trial court was within 

its discretion to extend the supervision period” “[s]ince costs were still owed,” and 

because “having a hearing on whether a court cost balance is still owed would be a 

waste of judicial resources.” (Appellee’s Brief at 6).

{¶17} “[U]nder R.C. 2929.15 and R.C. 2929.18, [a trial] court may impose 

financial sanctions as a condition of community control.” State v. Carpenter, 5th 

Dist. Stark No. 2008 CA 00238, 2009-Ohio-4759, ¶ 12. Further, “R.C. 2929.15(B)

gives the trial court the ability to extend a period of community control for violation 

of the conditions of community control.” Id. See also R.C. 2951.07 (“A community 

control sanction continues for the period that the judge or magistrate determines 

and, subject to the five-year limit specified in section 2929.15 * * * of the Revised 

Code, may be extended.”). “A trial court, however, need not find a violation in 

order to extend probation if there exists a rational basis and such extension is within 
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the limits as prescribed by R.C. 2951.07.” State v. Weston, 10th Dist. Franklin No. 

12AP-607, 2013-Ohio-2426, ¶ 9.

{¶18} Generally, “‘[a]n offender’s failure to comply with a condition of his 

community control that requires him to pay costs or fees cannot constitute the basis 

for revocation of community control or the imposition of the offender’s sentence.” 

State v. Stevens, 2d Dist. Greene No. 2014-CA-10, 2015-Ohio-1051, ¶ 5, fn. 2, 

quoting State v. Estep, 4th Dist. Gallia No. 03CA22, 2004-Ohio-1747, ¶ 11. 

However, the records in these cases reveal that the trial court ordered Fountain to 

pay restitution as well as court costs. See State v. Pickett, 12th Dist. Warren No. 

CA2014-09-115, 2015-Ohio-972, ¶ 15 (“It is well-established that the trial court is 

in the best position to interpret and construe its own orders.”).

{¶19} Thus, the trial court may extend the period of Fountain’s community 

control if there exists a rational basis and such extension is within the limits of R.C. 

2951.07. See Weston at ¶ 10 (concluding “that the trial court had a rational basis for 

extending [Weston’s] probation so that he could complete the sexual offender 

treatment program”). That is, the trial court may extend Fountain’s community 

control provided that the State presents substantial evidence (at a hearing) that she 

violated the terms of her community-control sanctions. See Pickett at ¶ 20 

(concluding that the trial court did not abuse its discretion by “continuing Pickett’s 

community control sanctions for an additional two years after finding he violated 
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his community control by failing to pay his restitution order in full”). See also State 

v. Scott, 6 Ohio App.3d 39, 41 (2d Dist.1982) (explaining that, when “determining 

whether failure to make restitution within the original probation period constitutes 

cause for extending probation and continuing restitution, the trial court should first 

establish a clear account of exactly how much defendant has paid and what the 

source of each payment was” and consider the defendant’s “employment history 

during the probationary period, employment status at the time of the extension, 

prospects for future employment, sources of income, cost of supporting 

probationer’s dependents, and other competing demands on probationer’s income”).

{¶20} Nevertheless, we disagree with the State and conclude that Fountain 

is entitled to the minimum due process requirements when facing the extension of 

her supervision. See Scott at 41 (concluding that “[i]f a probationer lacks capacity 

to pay restitution and has demonstrated a good faith effort during probation, failure 

to make restitution cannot be cause for extending probation”). Contra State v. Criss, 

55 Ohio App.3d 238 (8th Dist.1988) (concluding “that the trial court acted within 

its discretion when it extended [Criss’s] probation period without a hearing”). 

Critically, our review of the records in these cases reveals that Fountain was not 

only denied the minimum due process requirements when the trial court extended

her community control but that she did not waive any such rights. See, e.g., 
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Carpenter at ¶ 16; State v. Campbell, 3d Dist. Auglaize No. 2-89-11, 1991 WL 

3603, *1 (Jan. 16, 1991). 

{¶21} Importantly, the records in these cases reveal that the trial court 

extended Fountain’s community control without a hearing—that is, Fountain was 

denied the opportunity to be heard and was denied her right confront the witnesses 

against her. Accord State v. Flekel, 8th Dist. Cuyahoga No. 80337, 2002-Ohio2963, ¶ 24 (emphasizing that “[t]he record indicates that the lower court sua sponte 

extended the appellant’s probation without a probation revocation hearing”); State 

v. McGinnis, 3d Dist. Crawford No. 3-87-19, 1989 WL 116976, *3 (Sept. 29, 1989) 

(concluding that McGinnis was denied the minimum due process requirements since 

“he did not have the opportunity to confront and cross-examine the witnesses 

against him at his revocation hearing”). Likewise, our review of the records in these 

cases reveals that the State did not serve Fountain with a copy of its requests to 

extend her community control. Compare State v. Whitaker, 2d Dist. Montgomery 

No. 21003, 2006-Ohio-998, ¶ 19 (concluding that “the State failed to provide 

[Whitaker] with notice of some of the alleged community control violations that the 

State asserted at the hearing”). Importantly, “[f]undamental fair play is offended 

when a period of probation is extended without notice to the defendant.” State v.

Simpson, 2 Ohio App.3d 40, 42 (1st Dist.1981). 
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{¶22} Furthermore, our review of the records in these cases reveals that 

Fountain did not waive “any rights.” Id. Indeed, “[a]ny constitutional right may be 

waived but such waiver must be knowingly, intelligently and voluntarily 

accomplished.” Id. Specifically, “[t]here is a presumption against the waiver of 

constitutional rights and for a waiver to be effective it must be clearly established 

that there was an intentional relinquishment of a known right or privilege.” Id. 

Consequently, based on the facts presented, we conclude that Fountain was deprived 

of the minimum due process requirements since she was not provided with notice

and an opportunity to be heard, afforded her right to confront the witnesses against 

her, and because there is no evidence that she waived any of these rights.

{¶23} Therefore, because Fountain was not provided the minimum due 

process requirements (i.e., notice and an opportunity to be heard at a hearing), we 

conclude that the trial court abused its discretion by extending her community 

control. See State v. Miller, 42 Ohio St.2d 102, 106 (1975) (concluding that the trial 

court “did not provide appellee the minimum due process requirements specified in 

Morrissey at his probation revocation hearing”); Whitaker at ¶ 15 (concluding “that 

the trial court’s order purporting to extend both of Whitaker’s periods of community 

control was ineffective”). See also Carpenter, 2009-Ohio-4759, at ¶ 15 (noting that 

the appropriate remedy for a trial court’s “failure to provide [a defendant] with 

notice and a hearing” is “a remand for a hearing”).
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{¶24} For these reasons, Fountain’s assignments of error are sustained.

{¶25} Having found error prejudicial to the appellant herein in the particulars 

assigned and argued, we reverse the judgments of the trial court and remand for 

further proceedings.

Judgments Reversed and 

Causes Remanded

MILLER, P.J. and WALDICK, J., concur.

/jlr