[Cite as State v. Lammie , 2022-Ohio-419.]

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

STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 3-21-12

v. KEVIN LAMMIE, O P I N I O N

DEFENDANT-APPELLANT.

Appeal from Crawford County Common Pleas Court Trial Court No. 20-CR-0324 Judgment Affirmed Date of Decision: February 14, 2022

APPEARANCES:



### Howard A. Elliott for Appellant 

### Bailey Higgins for AppelleeCase No. 3-21-12

-2- ZIMMERMAN, P.J. {¶1} Defendant-appellant, Kevin Lammie (“Lammie”), appeals the July 22, 2021 judgment entry of the Crawford County Court of Common Plea s reimposing the balance of Lammie’s original prison sentence following the revocation of his judicial release. For the reasons that follow, we affirm. {¶2} On September 15, 2020, the Crawford County Grand Jury indicted Lammie on three counts: Count One of possession of drugs in vi olation of R.C. 2925.11(A), (C)(1)(b), a third-degree felony; Count Two of poss ession of drug paraphernalia in violation of R.C. 2925.14(C), a fourth-degree misdemeanor; and Count Three of possession of marihuana drug paraphernalia in vi olation of R.C. 2925.141(C), a minor misdemeanor. (Doc. No. 1). Lammie appear ed for arraignment on September 21, 2020 and entered pleas of not guil ty. (Doc. No. 5). {¶3} On November 9, 2020, Lammie withdrew his pleas of not guilty an d entered a plea of guilty, under a negotiated-plea agreement, to Count One. (Doc. No. 15). In exchange for his change of pleas, the State agreed to dismiss Counts Two and Three, and agreed to a joint-sentencing recommendation. ( Id. ). That same day, the trial court accepted Lammie’s guilty plea, found him g uilty, and sentenced him (based on the joint-sentencing recommendation of the partie s) to 36 months in prison. (Doc. No. 16). Lammie did not directly appeal his co nviction or sentence.Case No. 3-21-12

-3- {¶4} On February, 22, 2021, Lammie filed a motion for judicial relea se in the trial court. (Doc. No. 22). On February 23, 2021, the Sta te filed its response to Lammie’s motion and recommended that Lammie be judicially relea sed from prison. (Doc. No. 23). Thereafter, on March 31, 2021, the tri al court granted Lammie’s motion for judicial release, suspended the balance of his prison sentence, and released Lammie under the conditions of judicial release. (Doc. No. 25). {¶5} On June 30, 2021, the State filed a motion requesting that the trial court revoke Lammie’s judicial release after Lammie pleaded guilty (i n two separate cases) on June 28, 2021 to possessing marijuana drug parapherna lia and operating a motor vehicle while under the influence of alcohol or drugs o f abuse in the Upper Sandusky Municipal Court. (Doc. No. 27). The State’s motion f urther alleged that Lammie violated the conditions of his judicial release by testi ng positive for the presence of illegal drugs on April 12, May 4 and 18, and June 3 0, 2021, and by admitting that he used illegal drugs on June 27, 2022. ( Id. ). {¶6} After a probable cause hearing on July 1, 2021, the trial court proceeded to a final-revocation hearing on July 21, 2021 during which it concluded that Lammie violated the conditions of his judicial release after he admitted to violating the conditions of his judicial release. (Doc. No. 35); (July 2 1, 2021 Tr. at 4). OnCase No. 3-21-12

-4- July 21, 2021, the trial court reimposed the balance of Lammie’ s original prison

sentence. 1 (Doc. No. 35). {¶7} Lammie filed his notice of appeal on August 19, 2021 and raises one assignment of error for our review. (Doc. No. 43). Assignment of Error Where the trial court fails to adequately explain to the defend ant the rights being surrendered by waiving a full hearing on an alleged community control violation and relies upon hearsay to establish the violation a knowing, intelligent and voluntary wa iver of the right to hearing has not taken place. {¶8} In his assignment of error, Lammie argues that the trial court abused its discretion by revoking his judicial release and reimposing the remainder of his original prison sentence. Specifically, Lammie contends that h e “did not knowingly, intelligently and voluntarily waive his rights” to a hearing. (Appellant’s Brief at 6). Standard of Review {¶9} A trial court’s decision to revoke a defendant’s judicial relea se based on a violation of the conditions of his or her judicial release will not be disturbed

absent an abuse of discretion. State v. Arm , 3d Dist. Union Nos. 14-14-03 and 14- 14-04, 2014-Ohio-3771, ¶ 22, citing State v. Jenkins , 4th Dist. Scioto No. 10CA3389, 2011-Ohio-6924, ¶ 9. An abuse of discretion implies that the trial court

1 The trial court filed its judgment entry of sentence on July 2 2, 2021. (Doc. No. 35).Case No. 3-21-12

-5- acted unreasonably, arbitrarily, or unconscionably. State v. Adams , 62 Ohio St.2d 151, 157-158 (1980). Analysis {¶10} As an initial matter, we must acknowledge that Lammie slightly conflates the distinct concepts of community control under R.C. 2929.15 and judicial release under R.C. 2929.20. It is well established th at the rules applicable to a violation of an original sentence of community control und er R.C. 2929.15 should not be confused with the provisions applicable to judici al release under R.C. 2929.20 even though “R.C. 2929.20(K) confusingly uses the term ‘community control’ in reference to the status of an offender granted judi cial release.” State v.

Owens , 3d Dist. Crawford Nos. 3-19-16 and 3-19-17, 2020-Ohio-5573, ¶ 23, fn. 2.

See also State v. Jones , 3d Dist. Mercer Nos. 10-07-26 and 10-07-27, 2008-Ohio2117, ¶ 12; State v. Mann , 3d Dist. Crawford No. 3-03-42, 2004-Ohio-4703, ¶ 7-8. Here, because the record reflects that Lammie was released from prison on judicial release under R.C. 2929.20, we will address his argument accord ingly. Accord

Jones at ¶ 13; Mann at ¶ 9. {¶11} Ohio’s judicial release statute, R.C. 2929.20, provides, in rel evant part: If the court grants a motion for judicial release under this se ction, the court shall order the release of the eligible offender, shall p lace the eligible offender under an appropriate community control sancti on, under appropriate conditions, and under the supervision of theCase No. 3-21-12

-6- department of probation serving the court and shall reserve the right to reimpose the sentence that it reduced if the offender violat es the sanction. If the court reimposes the reduced sentence, it may d o so either concurrently with, or consecutive to, any new sentence i mposed upon the eligible offender as a result of the violation that is a new offense. {¶12} “Accordingly, if a defendant violates the conditions of judicia l release, the trial court is limited to reimposing the original term of i ncarceration with credit for time already served.” Jones at ¶ 15. “The trial court may not alter the defendant’s original sentence except to reimpose the sentence c onsecutively to or concurrently with a new sentence it imposes as a result of the judicial release

violation that is a new criminal offense.” Id. {¶13} “A defendant under community control [including community contr ol imposed under R.C. 2929.20(K)] is entitled to both a preliminar y and a final revocation hearing.” State v. Kiser , 5th Dist. Tuscarawas No. 2008 AP 030014, 2009-Ohio-1337, ¶ 21. “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.” State v. Knerr , 3d Dist. Auglaize No. 2-14-03, 2014-Ohio3988, ¶ 14, citing State v. Delaney , 11 Ohio St.3d 231, 233 (1984). “The purpose of the final revocation hearing is to give the defendant ‘an op portunity to be heard

and to show’ that he either did not violate his conditions or t hat certain mitigating circumstances ‘suggest that the violation does not warrant revo cation.’” Id. , quoting Morrissey v. Brewer , 408 U.S. 471, 488, 92 S.Ct. 2593 (1972).Case No. 3-21-12

-7- {¶14} “‘Although a revocation proceeding must comport with the requirements of due process, it is not a criminal proceeding.’” State v. Ryan , 3d Dist. Auglaize No. 14-06-55, 2007-Ohio-4743, ¶ 8, quoting Gagnon v. Scarpelli , 411 U.S. 778, 782, 93 S.Ct. 1756 (1973). “Therefore, the minim um due process requirements afforded a defendant in a probation revocation pro ceeding differ from

those in a criminal trial.” State v. McKeithen , 3d Dist. Marion No. 9-08-29, 2009- Ohio-84, ¶ 22. See also State v. Dye , 4th Dist. Athens No. 16CA17, 2017-Ohio9389, ¶ 12 (because a community-control-revocation hearing is n ot a criminal trial, “a ‘defendant faced with revocation of [his or her community co ntrol imposed under R.C. 2929.20] is not afforded the full panoply of rights given to a defendant in a criminal prosecution’”), quoting State v. Parsons , 4th Dist. Athens No. 09CA4, 2009-Ohio-7068, ¶ 11, and citing State v. Roberts , 2d Dist. Champaign No. 2016- CA-8, 2017-Ohio-481, ¶ 18, State v. Alexander , 1st Dist. Hamilton No. C-070021, 2007-Ohio-5457, ¶ 7, State v. Orr , 11th Dist. Geauga No. 2008-G-2861, 2009-Ohio5515, ¶ 21, and State v. Malone , 6th Dist. Lucas No. L-03-1299, 2004-Ohio-5246, ¶ 13-14. “‘More specifically, “the requirements of Crim.R. 11( C)(2) do not apply to a community-control-violation hearing.”’” Dye at ¶ 12, quoting Parsons at ¶ 11, quoting Alexander at ¶ 7 and Orr at ¶ 21. {¶15} The minimum due-process requirements for revocation hearings ar e: (1) written notice of the claimed violations; (2) disclosure of evidence against aCase No. 3-21-12

-8- defendant; (3) the opportunity to be heard and to present witne sses and evidence; (4) the right to confront and cross-examine witnesses; (5) a ne utral and detached hearing body; and (6) a written statement by the fact finders a s to the evidence relied

on and reasons for revocation. State v. Miller , 42 Ohio St.2d 102, 104 (1975). {¶16} Because a judicial-release-revocation hearing is not a criminal trial, the State is not required to establish a violation of the terms of judicial release beyond a reasonable doubt. State v. Westrick , 196 Ohio App.3d 141, 2011-Ohio1169, ¶ 21 (3d Dist.). “Instead, the state must show ‘substant ial’ proof that the offender violated the terms of his or her judicial release.” Id. Likewise, “revocation hearings are not subject[] to the rules of evidence, thus allow ing for the admission of hearsay evidence.” Ryan at ¶ 9, citing Evid.R. 101(C)(3). {¶17} “Crim.R. 32.3 provides the procedural framework that is to occu r at a community-control-revocation hearing.” Dye at ¶ 14, citing Orr at ¶ 23 (applying Crim.R. 32 to the revocation of community control imposed under R.C. 2929.20). Crim.R. 32.3 provides, in its relevant part: (A) Hearing. The court shall not impose a prison term for violation 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. The defend ant may be admitted to bail pending hearing. (B) Counsel. The defendant shall have the right to be represented b y retained counsel and shall be so advised. Where a defendant con victed of a serious offense is unable to obtain counsel, counsel shall be assigned to represent the defendant, unless the defendant after beingCase No. 3-21-12

-9- fully advised of his or her right to assigned counsel, knowingl y, intelligently, and voluntarily waives the right to counsel. Whe re a defendant convicted of a petty offense is unable to obtain coun sel, the court may assign counsel to represent the defendant. {¶18} Here, the trial court did not abuse its discretion by revoking Lammie’s judicial release because the trial court complied with the requ irements of due process and Crim.R. 32.3. The record reflects that the trial c ourt conducted a preliminary hearing on July 1, 2021 during which the trial cour t concluded that there was probable cause to believe that Lammie violated the terms an d conditions of his judicial release. ( See Doc. No. 29). At the probable-cause hearing, Lammie was apprised of the grounds on which action was proposed and was ap pointed counsel. {¶19} Thereafter, the trial court convened a final-revocation hearing on July 21, 2021 during which Lammie admitted to violating the terms an d conditions of his judicial release as alleged in the State’s June 30, 2021 mo tion. (July 21, 2021 Tr. at 4). That is, after the State recited the grounds on whi ch it alleged that Lammie violated the terms and conditions of his judicial release, Lamm ie opted to admit to the allegations. ( Id. at 3-5). See State v. Frazier , 8th Dist. Cuyahoga No. 104596, 2017-Ohio-470, ¶ 11 (“Appellant, through his attorney, was give n an opportunity to address the court and dispute the charges brought against him. Instead, appellant admitted to the violation.”). {¶20} Nevertheless, Lammie contends that the trial court abused its discretion by revoking his judicial release because he did not knowingly,Case No. 3-21-12

-10- intelligently, and voluntarily waive his right to present evide nce in his defense and to confront his accusers. “As a general matter, an unknowing w aiver 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. However, because “trial courts are not obligated t o procure a knowing waiver through a Crim.R. 11(C)(2)(c) colloquy like they are req uired to do before accepting a guilty plea,” “the relevant consideration is not wh ether the record proves that he understood the rights he was waiving; it is whether the record in some way indicates that he did not understand the rights he was waiving. ” Id. at ¶ 12. There is nothing in the record to suggest that Lammie unknowingly, un intelligently, or involuntarily waived his rights. Accord id. {¶21} Moreover, even if we were to find that Lammie did not waive his rights, we cannot conclude that Lammie suffered any prejudice i n this instance.

Accord id. at ¶ 13. Indeed, the record reflects that two of the bases fo r which the State requested that the trial court revoke Lammie’s judicial r elease includes two criminal convictions in the Upper Sandusky Municipal Court. {¶22} For these reasons, we conclude that that the trial court did no t abuse its discretion by revoking Lammie’s judicial release reimposing the remainder of his original prison sentence. {¶23} Therefore, Lammie’s assignment of error is overruled.Case No. 3-21-12

-11- {¶24} Having found no error prejudicial to the appellant herein in th e particulars assigned and argued, we affirm the judgment of the trial court. Judgment Affirmed SHAW and WILLAMOWSKI, J.J., concur. /jlr