[Cite as State v. Wade , 2021-Ohio-2949.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO Plaintiff-Appellee

v. CHARLES WADE Defendant-Appellant : : : : : : : : : : Appellate Case No. 29017

Trial Court Case Nos. 2020-CR-1551 and 2020-CR-1595 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 27th day of August, 2021.

. . . . . . . . . . . MATHIAS H. HECK, JR., by J. JOSHUA RIZZO, Atty. Reg. No. 009921 8, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, Dayto n, Ohio 45422 Attorney for Plaintiff-Appellee MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, 210 West Main Str eet, Troy, Ohio 45373 Attorney for Defendant-Appellant

. . . . . . . . . . . . .

WELBAUM, J.-2-

{¶ 1} Defendant-appellant, Charles Wade, appeals from the judgments o f the Montgomery County Court of Common Pleas revoking his community control sanctions. For the reasons outlined below, the judgments of the trial cour t will be affirmed.

Facts and Course of Proceedings {¶ 2} On July 14, 2020, Wade pled guilty in Montgomery C.P. No. 2020- CR-1595 to one count of domestic violence in violation of R.C. 2919.25( A), a fourth-degree felony. Wade also pled guilty in Montgomery C.P. No. 2020-CR-1551 to on e count of harassment with a body substance in violation of R.C. 2921.38(B), a fifth- degree felony. Following Wade’s guilty pleas, on July 28, 2020, the trial court sentence d Wade to serve a term of community control sanctions not to exceed five years for both c ases. {¶ 3} As part of his community control sanctions, the trial court req uired Wade to abide by several conditions, including that he attend and compl ete the MonDay Program. The trial court also advised Wade that if he violated any condi tion of his community control, or violated any law, it could impose a longer time und er the same sanction, a more restrictive sanction, 12 months of local incarceration, or up to a total term of 30 months in prison, i.e., 18 months for domestic violence and 12 months for harassment with a bodily substance, served consecutively. {¶ 4} On November 2, 2020, Wade’s probation officer filed notices of violation of community control in both cases asserting that Wade had failed to complete the MonDay Program as ordered by the trial court. The notices indicated t hat Wade had been clinically discharged from the MonDay Program on October 30, 20 20.-3- {¶ 5} On December 22, 2020, the trial court held a revocation hearing . During this hearing, the State presented testimony from Wade’s probation of ficer, Ryan Addison. Addison testified that completing the MonDay Program was a cond ition of Wade’s community control and that Wade had violated that condition whe n he was unsuccessfully discharged from the MonDay Program due to his noncompliant beha vior. During his testimony, Addison identified State’s Exhibit 4, which was a di scharge summary prepared by Wade’s clinician at the MonDay Program. Addison testified t hat the discharge summary outlined the reasons for Wade’s unsuccessful discharge. The clinician who authored the discharge summary did not testify at the revocatio n hearing. The discharge summary was admitted into evidence without any objection from W ade. {¶ 6} The only other witness to testify at the revocation hearing was Wade himself. During his testimony, Wade claimed that he suffered from certai n physical and mental ailments that negatively affected his performance in the MonDay Program. Wade also testified that he performed every task that had been required o f him and that he had not willfully violated his community control sanctions. {¶ 7} After the revocation hearing, the trial court issued its decisi on from the bench and revoked Wade’s community control sanctions. The trial cour t based its decision on the information contained in the discharge summary. Specifical ly, the trial court stated: I give Mr. Wade great credit for the comments that he made duri ng his * * * testimony. And I have to weigh that against the info rmation from MonDay Program provided in its discharge of Mr. Wade, as well. And some of that information includes that he minimally participate d in individual and group treatment; and while he did complete mandatory assign ments,-4- his treatment work was done quickly and with no internal though t; he did not complete his parenting or anger management workbooks as require d for the completion of those classes; his work was lacking of depth about his court issues; he did not apply the information, coping strategi es or intervention from his treatment into practice or how to deal wi th life stressors; and while he did participate in individual sessions with this clinician, frequently the session would devolve into complaints about MonDay, complaints about his unresolved medical issues or threa ts of pending lawsuits against MonDay; he would make statements like [cognitive behavioral therapy] doesn’t work and I won’t fake it to make it. When he entered the Program, he reported that he didn’t need to be there because his only problem was alcohol and he had already o btained sobriety prior to entry and efforts to have him address those a lcohol issues and other problematic behaviors were largely unsuccessful. And he had significant difficulty getting along with others in the Program specifically the staff at the MonDay Program. And they concluded that his progn osis for success in the Program was poor and, therefore, the MonDay Prog ram made the determination to unsuccessfully discharge him from the MonDay Program. And there’s no dispute that he was unsuccessfully dis charged from the MonDay Program. He was there for 80 days, filed 25 grievances while he was ther e, also stopped staff on the day floor several times to complain a bout his various concerns, submitted 19 requests to see staff which exce eded the-5- typical resident requests. And although he did successfully co mplete the two behavioral contracts that he was placed upon, the determina tion was made by the MonDay Program that the level of attention and care that Mr. Wade needed simply exceeded the ability of the Program. And so it unsuccessfully discharged him from the Program. And it is that unsuccessful discharge from the MonDay Program t hat is the basis for the petitions to revoke him from supervision. And, therefore, as a result, the Court will find that there is subst antial and significant evidence that Mr. Wade has violated the terms and c onditions of his supervision and it is appropriate then at this time to impo se an alternative sentence upon him. Hearing Trans. (Dec. 22, 2020), p. 58-60. {¶ 8} Following its decision to revoke Wade’s community control sanct ions, the trial court sentenced Wade to serve 18 months in prison for domestic violence in Case No. 2020-CR-1595 and 12 months in prison for harassment with a bodi ly substance in Case

No. 2020-CR-1551. The trial court ordered these sentences to b e served concurrently for a total term of 18 months in prison. Wade now appeals from the trial court’s judgment revoking his community control sanctions and sentencing him to prison, raising two assignments of error for our review.

First Assignment of Error {¶ 9} Under his first assignment of error, Wade contends that the tri al court committed plain error by relying solely on hearsay evidence, i. e., the discharge summary,-6- to revoke his community control sanctions. To support this cla im, Wade contends that the admission and consideration of the discharge summary violat ed his due process right to confront adverse witnesses. Upon review, we find no plain e rror that necessitates

reversal in this case. {¶ 10} “ ‘Revocation hearings are not subject to the rules of evidence , thus allowing for the admission of hearsay evidence.’ ” State v. McDargh , 2d Dist. Clark No. 2015-CA27, 2016-Ohio-1132, ¶ 12, quoting State v. Westrick, 196 Ohio App.3d 141, 2011-Ohio1169, 962 N.E.2d 818 (3d Dist.). (Other citation omitted.) Th is is because a “ ‘revocation hearing is an informal proceeding, not a criminal t rial[.]’ ” Id ., quoting

Columbus v. Bickel , 77 Ohio App.3d 26, 36, 601 N.E.2d 61 (10th Dist.1991), citing State

v. Miller , 42 Ohio St.2d 102, 106, 326 N.E.2d 259 (1975). Therefore, du ring revocation hearings, “ ‘the trier of fact should be able to consider any r eliable and relevant evidence to determine whether the [defendant] has violated the condition s of his [supervision].’ ”

Id

. {¶ 11} “Nevertheless, in some circumstances, the admission of hearsay evidence at a revocation hearing can deny the defendant his due process right to confront and

cross-examine adverse witnesses.” State v. Brandon , 2d Dist. Montgomery No. 23336, 2010-Ohio-1902, ¶ 19, citing State v. Dunning , 2d Dist. Greene No. 08-CA-07, 2009-Ohio691, ¶ 10. This includes, for example, instances where “ ‘[hea rsay] evidence is the only evidence presented and is crucial to a determination of a proba tion violation.’ ” McDargh at ¶ 13, quoting State v. Ryan , 3d Dist. Union No. 14-06-55, 2007-Ohio-4743, ¶ 9, citing State v. Ohly , 166 Ohio App.3d 808, 2006-Ohio-2353, 853 N.E.2d 675 (6th Dist .). {¶ 12} As noted above, Wade contends that the trial court’s decision r evoking his-7- community control sanctions was based solely on hearsay evidenc e, i.e., the discharge summary, thereby violating his right to due process. Wade, how ever, did not object to the admission of the discharge summary into evidence, let alone claim that its admission violated his due process rights. “The failure to object to a d ue process violation during a community control revocation hearing waives all but plain error .” State v. Hatton , 2d Dist. Montgomery No. 25959, 2014-Ohio-3354, ¶ 10, citing State v. Blakeman , 2d Dist. Montgomery No. 18983, 2002 WL 857659, *3 (May 3, 2002). “For p lain error to exist, the defect in the trial proceedings must be obvious and must ha ve affected the outcome

of the trial.” State v. Davis , 2d Dist. Montgomery No. 28923, 2021-Ohio-1833, ¶ 18, citing State v. Payne , 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 16. {¶ 13} Upon review, we find that the discharge summary was not the onl y evidence presented at Wade’s revocation hearing, as the State presented testimony from Wade’s probation officer, Ryan Addison. Addison testified that he bec ame Wade’s probation officer after Wade entered the MonDay Program, and that Wade wa s required to complete the MonDay Program as a condition of his community control sanc tions. Addison also testified that Wade was not compliant in the MonDay Program and was terminated from the program unsuccessfully. Addison further testified that pri or to Wade’s unsuccessful termination, he, Wade, and Wade’s MonDay clinician attended two interventions during which they discussed Wade’s behavior. {¶ 14} Addison testified that during the first intervention, they disc ussed Wade’s “overall noncompliance [as] far as [Wade] being defiant, argume ntative, utilizing grievances as a way to get attention, threatening suicide when [Wade] didn’t get his way, [and] constantly complaining of his medical state with his * * * bowels * * * because he-8- wasn’t able to use the restroom.” Hearing Trans. (Dec. 22, 202 0), p. 28. Addison testified that they also discussed Wade’s complaints of wrist p ain and noted that “[i]t was later found that * * * [Wade could] be seen on video doing push ups without any type of issue [.]” Id

. {¶ 15} Addison additionally testified that the second intervention “to ok place because [of Wade’s] unwillingness to change his behavior and hi s unwillingness to work on himself and work on the things that got him there such as * * * his addiction to * * * alcohol and not fully engaging in the program.” Id . at 29. Addison testified that Wade was “pretty upset” during both interventions and that Wade was acting like a victim by blaming and accusing others. Id . Addison also testified that Wade’s behavior did not change from the first to the second intervention. {¶ 16} With regard to the discharge summary, Addison testified that, p er protocol, he received the discharge summary, which outlined the reasoning for Wade’s unsuccessful discharge. Most significantly, Addison testified that his testimony regarding Wade’s performance was outlined in the discharge summ ary. This indicated (and the actual discharge summary confirmed) that Wade’s discha rge from the program was based, at least in part, on the issues that Addison testifi ed about at the revocation hearing. {¶ 17} Because Addison’s testimony touched on the reasons for Wade’s unsuccessful discharge, we find that Addison’s testimony, stand ing alone, would have been sufficient for the trial court to revoke Wade’s community control sanctions. Although the record indicates that the trial court relied solel y on the discharge summary when revoking Wade’s community control, even without the discha rge summary, the trial-9- court could have revoked Wade’s community control based on Addi son’s testimony. Therefore, Wade has not established plain error with regard to the trial court’s relying solely on the discharge summary, as the outcome of the revocati on proceeding would not have been different had the discharge summary not been admitted into evidence. See generally State v. Pullen-Morrow , 2d Dist. Montgomery No. 24862, 2012-Ohio-3605, ¶ 24-25 (finding no plain error where the result of a revocatio n hearing would not have been different even if the discharge summary/testimony regardin g the contents of the discharge summary had been excluded). {¶ 18} Wade’s first assignment of error is overruled.

Second Assignment of Error {¶ 19} Under his second assignment of error, Wade contends that the tr ial court’s decision to revoke his community control sanctions was an abuse of discretion. Specifically, Wade argues that the trial court’s decision to re voke his community control was unreasonable in light of the testimony he provided at the r evocation hearing. We disagree with Wade’s claim. {¶ 20} “The right to continue on community control depends upon compli ance with the conditions of community control and is a matter within the sound discretion of the trial

court.” State v. Eastman , 2d Dist. Clark No. 2020-CA-5, 2021-Ohio-392, ¶ 13, citing

State v. Lewis , 2d Dist. Montgomery No. 23505, 2010-Ohio-3652, ¶ 11. “Accord ingly, we review the trial court’s revocation of community control for an abuse of discretion.”

Id ., citing State v. Morgan , 2d Dist. Montgomery No. 26132, 2014-Ohio-5071, ¶ 11. “A

trial court abuses its discretion when it makes a decision that is unreasonable,-10- unconscionable, or arbitrary.” (Citation omitted.) State v. Darmond , 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. “An abuse of discret ion most often involves an unreasonable decision that is not supported by a sound reaso ning process.” State v.

Pate , 2021-Ohio-1838, __ N.E.3d __, ¶ 36 (2d Dist.), citing AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp. , 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). {¶ 21} As previously noted, Wade claims that the trial court’s decisio n revoking his community control sanctions was unreasonable in light of his te stimony at the revocation hearing. Specifically, Wade testified that his performance in the MonDay Program was affected by physical injuries that he sustained from being beat en in jail by fellow inmates prior to entering the program. Wade testified that his ribs we re broken and that one of his ribs punctured his intestines. Wade testified that the pun cture resulted in a blood clot that led to a prolonged bowel obstruction, which required him t o be on laxatives for an extended period of time. According to Wade, his bowel conditio n caused him embarrassment and pain on a daily basis. {¶ 22} In addition to his physical condition, Wade testified that he s uffered from mental issues such as paranoia and delusions, which caused him to feel as if MonDay staff members were trying to get him kicked out of the program. Wade also testified that he had been diagnosed with post-traumatic stress disorder. Acc ording to Wade, his physical and mental ailments were the source of his negative pe rsonal interactions with MonDay staff and were the cause of the several grievances he fi led while in the program. Wade testified that he otherwise completed all the required tas ks in the program and that he never willfully violated the c onditions of his community con trol sanctions.-11- {¶ 23} It was, however, within the province of the trial court to dete rmine what weight, if any, to give to Wade’s testimony. Simply because Wa de disagrees with the trial court’s resolution of the factual disputes in this case d oes not indicate that the trial court’s decision revoking his community control was an abuse of discretion. Therefore, because the evidence established that Wade was required to comp lete the MonDay Program as a condition of his community control sanctions and t hat Wade was unsuccessfully discharged from the MonDay Program due to his no ncompliant behavior, the trial court’s decision revoking Wade’s community control fo r failing to complete the MonDay Program was not unreasonable and thus not an abuse of di scretion. {¶ 24} Wade’s second assignment of error is overruled.

Conclusion {¶ 25} Having overruled both assignments of error raised by Wade, the judgments

of the trial court are affirmed.

. . . . . . . . . . . . .

DONOVAN, J. and HALL, J., concur.

Copies sent to: Mathias H. Heck, Jr. J. Joshua Rizzo Michael J. Scarpelli Hon. Mary Lynn Wiseman