[Cite as State v. Clark, 2022-Ohio-2539.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

UNION COUNTY

STATE OF OHIO,

 PLAINTIFF-APPELLEE, CASE NO. 14-22-01

 v.

GREGORY A. CLARK, O P I N I O N

 DEFENDANT-APPELLANT.

Appeal from Union County Common Pleas Court

Trial Court No. 18 CR 0108

Judgment Affirmed

Date of Decision: July 25, 2022 

APPEARANCES:

Alison Boggs for Appellant

Andrew M. Bigler for Appellee
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SHAW, J.

{¶1} Defendant-Appellant, Gregory A. Clark (“Clark”), appeals the 

December 21, 2021 judgment of the Union County Common Pleas Court sentencing 

him to consecutive-prison terms following his admission to violating his community 

control. For the reasons that follow, we affirm.

Background

{¶2} In December 2018, Clark pled guilty to one count of grand theft when 

the property is a firearm or dangerous ordnance, a third degree felony, and one count 

of breaking and entering, a fifth degree felony. Clark failed to appear for sentencing 

but was subsequently arrested and sentenced in June 2021 to five years of 

community control on each count. The terms and conditions of Clark’s community 

control included that he successfully complete the residential program at West 

Central Community Based Correctional Facility (“West Central”). Clark was

notified that any violation of his community control could result in a thirty-sixmonth prison sentence on the count of grand theft and twelve months on the count 

of breaking and entering, to run consecutively, for a total prison sentence of fortyeight months.

{¶3} On December 15, 2021, Clark’s supervising probation officer filed a 

Notice of Community Control Violation, alleging that Clark violated the condition

of his community control by being “unsuccessfully discharged from West Central 
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CBCF on December 15, 2021.” On December 17, 2021, the trial court ordered that 

Clark be served with (1) a copy of the notice, (2) an affidavit of indigency, and (3) 

an explanation of rights as to the alleged community control violation.

{¶4} The trial court conducted a community control violation hearing on 

December 21, 2021. At the hearing, Clark admitted to the alleged violation. Based 

upon that admission, the trial court found Clark had violated his community control. 

The supervising probation officer’s recommendation was that the trial court impose 

a prison sentence. Clark’s defense counsel argued in mitigation of the sentence, 

requesting that the trial court continue community control rather than prison, and 

Clark also spoke to the trial court in mitigation. The trial court then imposed a 

thirty-month prison term on the offense of grand theft and a ten-month prison term 

on the offense of breaking and entering, with these terms to be served consecutively 

to each other, for a total prison sentence of forty months. It is from this judgment 

that Clark appeals, asserting the following assignments of error for our review.

Assignment of Error No. 1

The trial court erred when it accepted Appellant’s admission to 

the violation of his community control before giving Appellant 

notice at the hearing of the claimed violations.

Assignment of Error No. 2

The trial court erred when it failed to conduct a separate 

preliminary hearing and revocation hearing, depriving Appellant 

the ability to call witnesses to either show he did not violate his 

community control or that he had mitigating circumstances that 

showed the alleged violation did not warrant a revocation of his 

community control.
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Assignment of Error No. 3

Appellant was deprived effective assistance of counsel resulting in 

Appellant not receiving his right to a full revocation hearing on 

the community control violation.

{¶5} For ease of discussion, we elect to combine Clark’s first and second 

assignments of error for our review.

First and Second Assignments of Error

{¶6} In his first assignment of error, Clark contends that he was denied due 

process, when at the hearing on his community control violation, the trial court 

never inquired of him as to whether he was willing to waive a preliminary probable 

cause hearing and also failed to apprise him of the “actual grounds” for the alleged 

violation before taking his admission. (Appellant’s Brief at 5). Clark further 

contends, in his second assignment of error, that the trial court erred when it failed 

to conduct a separate preliminary hearing and revocation hearing. According to 

Clark, he did not have an opportunity to present evidence of racial prejudice 

displayed toward him as a defense to violating his community control, or as his 

reason for that violation, in mitigation to support a non-revocation. Clark requests 

this Court to remand the matter for full and complete hearings on the community 

control violation. The State, however, argues no plain error exists where Clark 

failed to object to the lack of a second hearing.
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Legal Analysis

{¶7} A defendant under community control is entitled to both a preliminary

hearing and a final revocation hearing. State v. Grow, 3d Dist. Logan Nos. 8-20-

27, 8-20-28, and 8-20-29, 2021-Ohio-641, ¶ 7. The purpose of the preliminary 

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

the terms of his 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.” ’ ˮ Id., quoting State v. Knerr, 3d 

Dist. Auglaize Nos. 2-14-03 and 2-14-04, 2014-Ohio-3988, ¶ 14, quoting Morrissey 

v. Brewer, 408 U.S. 471, 488, 92 S.Ct. 2593 (1972).

{¶8} The due process requirements for revocation hearings further require

(1) written notice of the claimed violation; (2) disclosure of the evidence against a 

defendant; (3) an opportunity to be heard and to present witnesses and evidence; (4) 

the right to confront and cross-examine witnesses; (5) a neutral and detached

hearing body; and (6) a written statement by the factfinder as to the evidence relied 

upon and reasons for revocation. Id. at ¶ 8. State v. Miller, 42 Ohio St.2d 102, 104 

(1975).

{¶9} Crim.R. 32.3, which provides the procedural framework that is to occur 

at a community-control-revocation hearing, provides, in pertinent part:
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(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 

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.

{¶10} Accordingly, we have reviewed the record to determine whether the 

trial court complied with the requirements of due process and Crim.R. 32.3. The 

record reflects at the commencement of the community control violation hearing 

held December 21, 2021, the trial court began by reading the violation alleged in 

the December 15, 2021 Notice. The trial court then noted that it had issued the 

journal entry ordering that Clark be served with a copy of the notice of the alleged 

community control violation and the explanation of rights. The “explanation of 

rights” form explained that:

A defendant under community control is entitled to both a preliminary 

and a final revocation hearing. The preliminary hearing is a “probable 

cause” hearing to determine if you, as defendant, violated any terms 

of your community control. If the court finds probable cause that you 

have violated your community control, the court will set the matter 

for a second hearing to consider evidence and argument on whether 

or not you should be sent to prison or given another chance on 

community control. The court may continue you on community 
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control or revoke community control and send you to prison as you 

were told by the court at the time your sentence was imposed.

(Doc. 58).

{¶11} After this, the trial court stated the case was before it for “first 

hearing.” (12/21/21 Tr. at 4). The defense declined to have the trial court give any 

further explanation of rights in the case, and counsel indicated that Clark intended 

to admit to the alleged violation of community control. As the record indicates, 

Clark had a hearing and was represented by counsel when the trial court read the 

alleged community control violation against him. This Court notes that the alleged 

violation was that Clark was unsuccessfully discharged from West Central in 

violation of the requirement that he successfully complete the program at West 

Central. Accordingly, the record does not support Clark’s contention that he was 

not apprised of the claimed violation of his community control terms.

{¶12} Moreover, when questioned directly by the trial court, Clark freely and 

voluntarily admitted to the community control violation and therefore effectively 

waived a probable-cause determination by his admission. See State v. Frazier, 8th 

Dist. Cuyahoga No. 104596, 2017-Ohio-470, ¶ 11 (“Appellant, through his attorney, 

was given an opportunity to address the court and dispute the charges brought 

against him. Instead, appellant admitted to the violation.”).

{¶13} We further find no plain error occurred. Clark never objected to the 

merger of the two hearings or requested a separate revocation hearing. The failure 
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to object to a due process violation during the revocation hearing waives all but 

plain error. State v. Dye, 4th Dist. Athens No. 16CA17, 2017-Ohio-9389, ¶ 10, 

citing State v. Klosterman, 2d Dist. Darke Nos. 2015-CA-9 and 2015-CA-10, 2016-

Ohio-232, ¶ 15; State v. Allsup, 3d Dist. Hardin Nos. 6-10-06 and 6-10-07, 2011-

Ohio-405, ¶ 30. Crim.R. 52(B) provides that “[p]lain errors or defects affecting 

substantial rights may be noticed although they were not brought to the attention of 

the court.” See id. “An error qualifies as ‘plain error’ only if it is obvious and but 

for the error, the outcome of the proceeding clearly would have been otherwise.” 

State v. Barnhart, 3d Dist. Putnam No. 12-20-08, 2021-Ohio-2874, ¶ 8, citing State 

v. Yarbrough, 95 Ohio St.3d 227, 245, 2002-Ohio-2126, ¶ 32.

{¶14} The trial court here held both hearings serially in one consolidated 

hearing, “which is not unusual for courts to do, particularly when the defendant 

stipulates to violations of community control.” State v. Waddell, 10th Dist. Franklin 

No. 14AP-372, 2014-Ohio-4829, ¶ 10, citing see, e.g., State v. Marvin, 134 Ohio 

App.3d 63 (3d Dist. 1999) (“after appellant admitted his violation to the trial court 

just after commencement of the hearing, the court proceeded to address issues 

relevant to the final revocation hearing”); State v. Brown, 7th Dist. No. 10 MA 34, 

2010-Ohio-6603 (“after appellant stipulated to probable cause for the violations and 

openly admitted that he committed the violations, the trial court proceeded directly 

to the final revocation hearing”); State v. Hammonds, 10th Dist. No. 06AP-1122, 
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2007-Ohio-4456 (“after the defendant stipulated to probable cause and admitted to 

community control violations, the trial court proceeded to the mitigation phase of 

the proceedings”). Insofar as Clark argues on appeal that he had mitigating 

circumstances, or his reason for the violation, showing that the violation did not 

warrant revocation of his community control, that information was, in fact, 

presented at the revocation portion via Clark’s own statements and by defense 

counsel’s mitigation argument. After the supervising probation officer read off of 

Clark’s discharge from the residential program, revealing how the incident 

happened, Clark and his counsel both proceeded to explain the violation in 

mitigation.

{¶15} As other appellate courts have held, oral notice coupled with the 

complete admission at the preliminary hearing on the violation of sanctions satisfied 

any due process concerns. Dye at ¶ 18; State v. Jimenez, 8th Dist. Cuyahoga No. 

104735, 2017-Ohio-1553, ¶ 6. It also is relevant that this Court has found similar 

procedural facts in State v. Wilhite, 3d Dist. No. 14-06-16, 2007-Ohio-116, did not 

rise to the level of plain error when a trial court proceeded to the revocation phase 

of the proceedings in the same hearing as an admitted violation of community 

control, reasoning that the defendant was not prejudiced. There, as here, defendant 

admitted to the violation before the trial court, did not object to the trial court 
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proceeding to disposition, and made statements in mitigation before being sentenced 

to a prison term. Wilhite at ¶ 9.

{¶16} Accordingly, based on the record before us, there was no due process 

violation in this case, and no plain error. The first and second assignments of error 

are overruled.

Third Assignment of Error

{¶17} In his third assignment of error, Clark claims that he was denied the 

effective assistance of counsel when his counsel failed to request separate 

community control violation hearings and present evidence in his defense. 

Legal Analysis

{¶18} To establish his ineffective-assistance-of-counsel claims, Clark must 

show both deficient performance, that his defense counsel’s performance fell below 

an objective standard of reasonable representation, and prejudice. State v. 

Blackburn, 3d Dist. Logan No. 8-21-25, 2022-Ohio-988, ¶ 18-19. “ ‘To show 

prejudice, [he] must show a reasonable probability that, but for counsel’s errors, the 

result of the proceeding would have been different.’ ˮ State v. Moll, 3d Dist. 

Defiance No. 4-19-17, 2020-Ohio-2784, ¶ 4, quoting State v. Conway, 109 Ohio 

St.3d 412, 2006-Ohio-2815, ¶ 95.

{¶19} Based on our resolution of Clark’s first and second assignments of 

error, Clark cannot demonstrate that the outcome of his community control 
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revocation hearing would have been different. Therefore, Clark’s defense counsel 

was not ineffective for failing to challenge the summary nature of the proceedings 

or the validity of his community control violation admission at his community 

control violation hearing. See State v. Jimenez, 8th Dist. Cuyahoga No. 104735, 

2017-Ohio-1553, at ¶ 6 (“oral notice coupled with the complete admission at the 

preliminary hearing on the violation of sanctions satisfies any * * * effective 

assistance of counsel concerns”). Additionally, defense counsel was able to present 

the information regarding Clark’s completion progress at West Central, and the 

allegations Clark made concerning his treatment by others at the facility during the 

mitigation portion. Thus, his third assignment of error is overruled.

{¶20} Accordingly, for the foregoing reasons, the judgment of the Union 

County Common Pleas Court is affirmed.

 Judgment Affirmed

ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.

/jlr