[Cite as State v. Grow , 2021-Ohio-641.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY

STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 8-20-27

v. LACEY B. GROW, O P I N I O N

DEFENDANT-APPELLANT.

STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 8-20-28

v. LACEY B. GROW, O P I N I O N

DEFENDANT-APPELLANT.

STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 8-20-29

v. LACEY B. GROW, O P I N I O N

DEFENDANT-APPELLANT.Case Nos. 8-20-27, 8-20-28, 8-20-29

-2- Appeals from Logan County Common Pleas Court Trial Court Nos. CR 16 01 0015, CR 16 03 0078 and CR 17 07 0237 Judgments Affirmed Date of Decision: March 8, 2021

APPEARANCES: 

### Samantha L. Berkhofer for Appellant



### Sara J. Warren for Appellee

ZIMMERMAN, J. {¶1} Defendant-appellant, Lacey B. Grow (“Grow”), appeals the June 2 , 2020 judgment entries of the Logan County Court of Common Pleas revoking her community control and imposing prison sentences. For the reaso ns that follow, we

affirm. {¶2} The facts relevant to this appeal are as follows. On May 11, 2 020, the State filed a motion requesting that the trial court revoke Gro w’s community control in case numbers CR16-01-0015, CR16-03-0078, and CR17-07-0237 af ter Grow violated the terms and conditions of her community control. (C ase No. CR16-01-Case Nos. 8-20-27, 8-20-28, 8-20-29

-3- 0015, Doc. No. 100); (Case No. CR16-03-0078, Doc. No. 82); (Cas e No. CR17-07- 0237, Doc. No. 56). It was alleged that Grow violated the cond ition of her community control requiring her to “obey federal, state and loc al laws and ordinances, including those related to illegal drug use” by pos sessing a “drug abuse instrument” and using “opiates/fentanyl” and “cocaine” on April 1, 2020; by possessing “drug abuse instruments” on April 23, 2020; and by o perating a motor vehicle while under the influence of alcohol or drugs of abuse (“OVI”) in Bellefontaine, Ohio and in Miami County, Ohio on April 23, 2020. ( Id. ); ( Id. ); ( Id. ). {¶3} After her preliminary-revocation hearing on May 21, 2020, the c ases proceeded to a final-revocation hearing on June 2, 2020 during which the trial court

concluded that Grow violated the terms and conditions of her co mmunity control

after Grow admitted that she violated the terms and conditions of her community control. (Case No. CR16-01-0015, Doc. Nos. 104, 107); (Case No . CR16-03-0078, Doc. Nos. 86, 89); (Case No. CR17-07-0237, Doc. Nos. 62, 67). At the finalrevocation hearing, the State recited the evidence against Grow . ( See June 2, 2020 Tr. at 3-4). Accordingly, the trial court revoked Grow’s commu nity control and sentenced her to 12 months in prison in case number CR16-01-001 5, 12 months in prison in case number CR16-03-0078, and 12 months in prison in case number CR17-07-0237. (Case No. CR16-01-0015, Doc. No. 107); (Case No. CR16-03- 0078, Doc. No. 89). The trial court ordered that Grow serve th e prison term imposedCase Nos. 8-20-27, 8-20-28, 8-20-29

-4- in case number CR16-01-0015 concurrent to the prison term impos ed in case number CR16-03-007. ( Id. ); ( Id. ). The trial court further ordered that Grow serve the concurrent prison terms imposed in case numbers CR16-01-001 5 and CR16-03- 0078 consecutively to the prison term imposed in case number CR 17-07-0237, for an aggregate sentence of 24 months in prison. (Case No. CR17-0 7-0237, Doc. No. 67). {¶4} Grow filed her notices of appeal on June 22, 2020 in case numbe rs CR16-01-0015, CR16-03-0078, and CR17-07-0237, which were consol idated for purposes of appeal. (Case No. CR16-01-0015, Doc. No. 115); (Ca se No. CR16-03- 0078, Doc. No. 97); (Case No. CR17-07-0237, Doc. No. 76). She raises one assignment of error for our review. Assignment of Error Whether the Trial Court breached their duty by sentencing the defendant to [sic] a community control sanction without the defendant first admitting to the violation or being found in violation by hearing. {¶5} In her sole assignment of error, Grow argues that the trial cou rt abused its discretion by revoking her community control. Specifically , Grow argues that the trial court erred by concluding that she violated the terms and conditions of her community control because she did not knowingly, intelligently, or voluntarily admit to violating the terms and conditions of her community co ntrol and becauseCase Nos. 8-20-27, 8-20-28, 8-20-29

-5- the trial court failed to “conduct a hearing on the merits prio r to sentencing [her] to a prison sentence for violations of community control.” 1 (Appellant’s Brief at 10). Standard of Review {¶6} The decision of a trial court finding a community-control viola tion will

not be disturbed absent an abuse of discretion. State v. McKeithen , 3d Dist. Marion No. 9-08-29, 2009-Ohio-84, ¶ 7, citing State v. Ryan , 3d Dist. Auglaize No. 14-06- 55, 2007-Ohio-4743, ¶ 7. 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 {¶7} “A defendant under community control is entitled to both a prel iminary and a final revocation hearing.” State v. Knerr , 3d Dist. Auglaize Nos. 2-14-03 and 2-14-04, 2014-Ohio-3988, ¶ 14, quoting State v. Kiser , 5th Dist. Tuscarawas, No.2008 AP 030014, 2009-Ohio-1337, ¶ 12, citing Gagnon v. Scarpelli , 411 U.S. 778, 782, 93 S.Ct. 1756 (1973). The purpose of the preliminary hearing is to determine if probable cause exists that the defendant violated the terms of his probation or community control. Id. , citing State v. Delaney , 11 Ohio St.3d 231, 233 (1984). “The purpose of the final revocation hearing is to give the defendant

1 In the body of her assignment of error, Grow argues that her t rial counsel “failed to adequately represent her during her probation violations * * * .” (Appellant’s Brie f at 9). Because Grow did not separately assign this issue as error, we will not address it. See State v. Glasser , 4th Dist. Athens No. 11CA11, 2012-Ohio3265, ¶ 23, citing App.R. 12(A)(2) and 16(A)(7).Case Nos. 8-20-27, 8-20-28, 8-20-29

-6- ‘an opportunity to be heard and to show’ that he either did not violate his conditions or that certain mitigating circumstances ‘suggest that the viol ation does not warrant

revocation.’” Id. , quoting Morrissey v. Brewer , 408 U.S. 471, 488, 92 S.Ct. 2593 (1972). {¶8} “This Court has held that although a revocation proceeding must comport with the requirements of due process, it is not a crimi nal proceeding.”

McKeithen at ¶ 22, citing Ryan at ¶ 8, citing Gagnon at 782. “Therefore, the minimum due process requirements afforded a defendant in a prob ation revocation proceeding differ from those in a criminal trial.” Id. The minimum due-process requirements for revocation hearings are: (a) Written notice of the claimed violations; (b) disclosure of evidence against him or her; (c) the opportunity to be heard in person a nd to present witnesses and documentary evidence; (d) the right to co nfront and cross-examine adverse witnesses; (e) a neutral and detached hearing body; and (f) a written statement by the fact finders a s to the evidence relied on and reasons for revocation.

Id. , quoting State v. Miller , 42 Ohio St.2d 102, 104 (1975), quoting Morrissey at

489. {¶9} 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.” Id. at ¶ 6, citing Ryan at ¶ 7. “The State must, instead, show ‘substantial’ evidence that the offender violated the terms of his community control sanctions.” Id.Case Nos. 8-20-27, 8-20-28, 8-20-29

-7- {¶10} On appeal, Grow argues that the trial court erred by concluding that she violated the terms and conditions of her community control because she did not knowingly, intelligently, or voluntarily admit to the violation s. Specifically, Grow contends that “[a] review of the transcripts reveals that indee d [she] did not admit to any violation prior to being sentencing [sic] in the probati on violation hearing.” (Appellant’s Brief at 9). “‘As a general matter, an unknowing waiver of a defendant’s right in a revocation hearing to present evidence a nd confront his

accusers is invalid.’” State v. Patton , 8th Dist. Cuyahoga No. 103737, 2016-Ohio4867, ¶ 11, quoting State v. Armstrong , 56 Ohio App.3d 105, 107 (8th Dist.1988). However, because a community-control-revocation hearing is not a criminal trial, “‘[a] defendant faced with revocation of probation or parole is not afforded the full panoply of rights given to a defendant in a criminal prosecutio n’ and ‘the requirements of Crim.R. 11(C)(2) do not apply to a community-co ntrol-violation hearing.’” Id. , quoting State v. Parsons , 4th Dist. Athens No. 09CA4, 2009-Ohio7068, ¶ 11. {¶11} Instead, Crim.R. 32.3 applies to community-control revocation hearings. State v. Orr , 11th Dist. Geauga No. 2008-G-2861, 2009-Ohio-5515, ¶ 22. That rule provides, in relevant part, (A) Hearing. The court shall not impose a prison term for violatio n of the conditions of a community control sanction or revoke pro bation except after a hearing at which the defendant shall be present and apprised of the grounds on which action is proposed. * * *Case Nos. 8-20-27, 8-20-28, 8-20-29

-8- (B) Counsel. The defendant shall have the right to be represented by retained counsel and shall be so advised. Crim.R. 32.3(A), (B). {¶12} Based on our review of the record, we conclude that the require ments of Crim.R. 32.3 were satisfied. Indeed, the record reveals tha t Grow was apprised of the grounds on which the revocation of her community control was proposed and given the opportunity for the hearing at which she (represented by trial counsel) indicated that she intended to enter an admission to the allega tions. See State v.

Malone , 6th Dist. Lucas No. L-03-1299, 2004-Ohio-5246, ¶ 18. See also State v.

Brown , 3d Dist. Logan No. 8-14-04, 2015-Ohio-468, ¶ 16. Specificall y, at a community-control-revocation hearing, “the relevant considerati on is not whether the record proves that [a defendant] understood the rights he [ is] waiving; it is whether the record in some way indicates that he did not unders tand the rights he [is] waiving.” Id. at ¶ 12. “Generally, without affirmative evidence in the reco rd indicating otherwise, we presume regularity in trial court proc eedings.” Id. , citing

State v. Raber , 134 Ohio St.3d 350, 2012-Ohio-5636, ¶ 19. {¶13} Presuming regularity in this instance would require us to presu me that the trial court and the parties would not have proceeded past the evidentiary phase of the proceedings without Grow indicating her willingness to admit to violating the terms and conditions of her community control. See id. That is, the record revealsCase Nos. 8-20-27, 8-20-28, 8-20-29

-9- that Grow submitted a letter to the trial court in which she ac cepted responsibility for her conduct as well as an exchange between Grow and the tri al court in which Grow expressed remorse for her actions and a desire to receive treatment. ( See June 2, 2020 Tr. at 5-7). In other words, Grow did not dispute her probation officer’s recitation of the conduct of which she was alleged to have comm itted in violation of the terms and conditions of her community control. See Patton at ¶ 13 (noting that “[t]he record shows that Patton was able to confront his p robation officer during the hearing” but that Patton failed to demonstrate “what eviden ce or witnesses he might have proffered to combat the allegations against him”). {¶14} Furthermore, the record reveals that Grow was familiar with the community-control-revocation process since she had been subject to the revocation of her community control on two previous occasions in these cas es, and, as such, Grow was aware of the effects of waiving the hearing and admitt ing to the

violations. Compare State v. Dye , 4th Dist. Athens No. 16CA17, 2017-Ohio-9389, ¶ 19 (“The record also reveals [Dye] was familiar with the revo cation process, having previously been through the community control revocation process”), citing

State v. Orr , 11th Dist. Geauga No. 2008-G-2861, 2009-Ohio-5515, ¶ 43 (noti ng that because “Orr was familiar with community-control-revocatio n hearings,” he “fully understood the effects of waiving the hearing and admitt ing to the violations”).Case Nos. 8-20-27, 8-20-28, 8-20-29

-10- {¶15} Therefore, we conclude that the community-control-revocation hearing comported with the requirements of due process and Crim .R. 32.3. Accordingly, we conclude that the trial court did not abuse its discretion by revoking Grow’s community control and overrule her assignment of error. {¶16} Having found no error prejudicial to the appellant herein in th e particulars assigned and argued, we affirm the judgments of the trial court. Judgments Affirmed WILLAMOWSKI, P.J. and SHAW, J., concur. /jlr