[Cite as State v. Works, 2023-Ohio-861.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

STATE OF OHIO 

 Appellee

v. 

DELMAR WORKS

 Appellant

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C.A. No. 29460

Trial Court Case No. 2021 CR 02306

(Criminal Appeal from Common Pleas 

Court)

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O P I N I O N

Rendered on March 17, 2023

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MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Attorney for Appellee

 

MATTHEW M. SUELLENTROP, Attorney for Appellant

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LEWIS, J.

{¶ 1} Defendant-Appellant Delmar Works appeals from a judgment of the 

Montgomery County Common Pleas Court that revoked his community control sanctions, 

which had been previously imposed for his conviction for failure to comply with an order 

or signal of a police officer; upon revocation, the trial court sentenced Works to 36 months 
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in prison. On appeal, Works claims that the trial court violated his due process rights 

and abused its discretion in revoking his community control. For the following reasons, 

we reverse the judgment of the trial court. 

I. Procedural History and Facts 

{¶ 2} On August 25, 2021, Works was indicted in Montgomery C.P. No. 2021 CR 

2306 on one count of failure to comply with the order or signal of a police officer (serious 

physical harm/substantial risk), in violation of R.C. 2921.331(B) and (C)(5), a felony of the 

third degree. On December 6, 2021, Works entered a guilty plea as charged. On 

January 31, 2022, he was sentenced to community control sanctions not to exceed five 

years. The trial court informed Works that if he violated any community control sanction, 

or if he violated the law, the court could impose a longer time under the same community 

control sanctions, impose more restrictive sanctions, or impose a prison term of 36

months. Works did not appeal.

{¶ 3} On February 7, 2022, the Montgomery County Common Pleas Court 

Probation Department filed a notice of revocation alleging two violations. First, the notice 

alleged that Works had violated Rule #1 when he was arrested by the Dayton Police 

Department on January 31, 2022, for failure to comply with an order or signal of a police 

officer, a felony of the third degree, and obstructing official business, a misdemeanor of 

the third degree, and that he had also also charged with disorderly conduct through the 

Municipal Court West. Secondly, the notice alleged that Works had violated Rule #6 

when he admitted to consuming intoxicating substances during a jail visit on February 1, 

2022. 
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{¶ 4} On April 4, 2022, Works appeared for his revocation hearing in Case No.

2021 CR 2306, as well as for a scheduling conference on his newly indicted felony case, 

Montgomery C.P. No. 2022 CR 311. The new felony case involved one count of failure 

to comply with an order or signal of a police officer, a felony of the third degree. Although 

the court scheduled Case No. 2022 CR 311 for a jury trial at a later date, the parties 

participated in a full revocation hearing that day for Case No. 2021 CR 2306. 

{¶ 5} Montgomery County Senior Probation Officer Adam Pritchard testified for the 

State at the revocation hearing. Pritchard stated that Works had been placed on 

probation in Case No. 2021 CR 2306 on January 31, 2022. Pritchard was assigned to 

supervise Works and met with him that same day at the probation department. Pritchard 

reviewed the general conditions of supervision with Works, and they both signed a copy 

of the conditions indicating that Works agreed to comply with the terms of supervision. 

{¶ 6} Within hours after Works met with Pritchard, he was arrested for a new felony 

offense on January 31, 2022. Works was charged with failure to comply with an order 

or signal of a police officer, a felony of the third degree, and obstructing official business, 

a misdemeanor of the third degree, by the Dayton Police Department. After obtaining a 

copy of the police report and talking to Works, who was in the county jail, Pritchard filed 

the notice of revocation. 

{¶ 7} According to Pritchard, Works admitted to consuming alcohol on January 31, 

2022, prior to his arrest. After Works was released from jail, Pritchard and Works had a 

discussion wherein they agreed that Works would get into alcohol counseling. Works 

admitted to having an issue with alcohol and that it gets him in trouble. 
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{¶ 8} Works also testified on his own behalf at the hearing. After his arrest on 

January 31, 2022, Works sought alcohol treatment from Samaritan Behavioral Health. 

According to Works, he was not ordered to attend the treatment, but he checked himself 

in because he acknowledged he had a drinking problem. The last time he drank alcohol 

was two months prior to the hearing. He denied taking any illegal drugs. 

{¶ 9} At the conclusion of the hearing, the trial court found that Works had violated 

both Rules charged in the probation violation notice. Immediately thereafter, the trial 

court imposed a sentence of 36 months in prison. 

{¶ 10} Works timely appealed and presents three assignments of error for our 

review: 

1. APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS OF LAW 

UNDER THE 5TH AND 14TH AMENDMENTS TO THE UNITED 

STATES CONSTITUTION AND UNDER ARTICLE I, SECTIONS 10 

AND 16 OF THE OHIO CONSTITUTION.

2. THE TRIAL COURT’S DUE PROCESS ERRORS RESULTED IN THE 

TRIAL COURT’S ABUSE OF DISCRETION IN REVOKING 

COMMUNITY CONTROL SANCTIONS BASED UPON A TECHNICAL 

VIOLATION.

3. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A 

MATTER OF LAW IN REVOKING COMMUNITY CONTROL 

SANCTIONS AND CONSEQUENTLY VIOLATED APPELLANT’S 

CONSTITUTIONAL RIGHT TO THE PRESUMPTION OF INNOCENCE.
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However, we shall address only the second assignment of error because our resolution 

of that claim is dispositive of this appeal. 

II. Abuse of Discretion

{¶ 11} In his second assignment of error, Works alleges that the trial court abused 

its discretion in finding that Works had violated his community control sanctions. While 

the parties dispute whether Works’ alleged community control violations constituted a 

technical violation or not, we must first address whether there was substantial evidence 

of a violation at all. 

{¶ 12} “The right to continue on community control depends upon compliance with 

community control conditions and is a matter resting within the sound discretion of the 

court. Accordingly, we review the trial court's decision to revoke a defendant's 

community control for an abuse of discretion.” State v. Lewis, 2d Dist. Montgomery No. 

23505, 2010-Ohio-3652, ¶ 11, quoting State v. Jackson, 2d Dist. Montgomery Nos. 23457 

and 23458, 2010-Ohio-2836, ¶ 56. “A trial court abuses its discretion when it makes a 

decision that is unreasonable, unconscionable, or arbitrary.” (Citation omitted.) State v. 

Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.

{¶ 13} Community control revocation proceedings are not the same as a criminal 

trial such that the State need not demonstrate a violation of community control sanctions 

with proof beyond a reasonable doubt. State v. Cofer, 2d Dist. Montgomery No. 22798, 

2009-Ohio-890, ¶ 12, citing State v. Hylton, 75 Ohio App.3d 778, 781-782, 600 N.E.2d 

821 (4th Dist.1991). “The State need only present substantial evidence of a violation of

the terms of a defendant's community control.” Id. “Upon revoking community control, 
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the trial court may (1) lengthen the term of the community control sanction; (2) impose a 

more restrictive community control sanction; or (3) impose a prison term on the offender, 

provided that the prison term is within the range of prison terms available for the offense 

for which community control had been imposed and the term does not exceed the prison 

term specified in the notice provided to the offender at the original sentencing hearing.” 

State v. Shumway, 2d Dist. Greene No. 2017-CA-51, 2018-Ohio-1227, ¶ 12, citing R.C. 

2929.15(B). 

{¶ 14} In this case, the State alleged that Works violated Rule #1, which stated: “I 

shall refrain from violation of any law (Federal, State, County and City). I shall get in 

touch immediately with my probation officer if arrested or questioned by a law 

enforcement officer." According to the notice of violation, Works was in violation of Rule 

#1 when he was “arrested on January 31, 2022, for Failure to Comply W/Order or Signal 

of Police Officer (F3), Obstructing Official Business (M3) by Dayton Police Department. 

You were also charged with Disorderly Conduct through the Municipal Court West.” 

{¶ 15} Prichard testified that he met with Works via video conference the day after 

he was arrested for his new felony offense. Because Prichard met with Works the day 

after his arrest, Prichard specifically denied that Works had been in violation of the second 

sentence of Rule #1. Thus, the issue before the trial court was whether there was 

substantial evidence that Works violated any law. We conclude that there was not. 

{¶ 16} The plain language of Rule #1 provides that a probationer “will refrain from 

violation of any law.” Several Ohio courts, including this Court, have agreed with the 

proposition that merely being charged with a crime is not sufficient to show a violation of 
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probation. See State v. Craig, 130 Ohio App.3d 639, 642, 720 N.E.2d 966 (1st 

Dist.1998), overruled in part on other grounds, State v. Giles, 1st Dist. Hamilton No. C010582, 2002-Ohio-3297 (stating that the mere fact of an arrest cannot constitute a 

violation of community control sanctions); State v. Wagner, 179 Ohio App.3d 165, 2008-

Ohio-5765, 900 N.E.2d 1089, ¶ 42 (2d Dist.) (“Nevertheless, the fact that a criminal 

charge was filed, by itself, is not sufficient to prove, even by a preponderance of the 

evidence, that [the defendant] committed the criminal act.”); State v. Taylor, 5th Dist. 

Tuscarawas No. 2016 AP 010005, 2016-Ohio-4948, ¶ 13-14 (neither an arrest nor a 

criminal charge, by itself, is sufficient to establish a probation violation); Toledo v. Nova, 

6th Dist. Lucas No. L-12-1229, 2013-Ohio-1094, ¶ 7 (“the trial court abused its discretion 

in finding appellant in violation of his probation based solely on the fact that he was 

charged with another crime.”); State v. Kidwell, 10th Dist. Franklin No. 94APA06-883, 

1995 WL 68164, *2 (Feb. 16, 1995) (revocation of probation predicated solely upon arrest, 

without additional evidence, is reversible error). This is because the mere fact that an 

individual is arrested or charged with an offense does not mean that they, in fact, 

committed the offense. 

{¶ 17} While the State was not required to prove that Works was convicted of the 

crime for which he was charged, it was required to submit substantial evidence to 

demonstrate that Works had violated the law to serve as a basis for revoking Works’ 

community control sanctions. Thus, absent a conviction, the violation must be based on 

some inquiry into the underlying facts supporting the charge or some examination into the 

evidence underlying the probationer’s arrest. But in this case, there was insufficient 
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proof offered to demonstrate that Works had committed the offense for which he was 

charged. 

{¶ 18} Only Pritchard and Works testified at the revocation hearing. The only 

charge listed in the notice of revocation that Pritchard discussed was that of failure to 

comply with an order or signal of a police officer. Pritchard testified that he had reviewed 

the police report and spoken with Works, but he did not indicate that Works had admitted 

committing the alleged offense, only that Works had admitted to drinking alcohol. During 

Works’ testimony, he denied committing the offense and indicated that he was fighting 

the charge, which was set for trial on a future date. No police officers or witnesses to the 

alleged offense testified and no additional evidence was submitted to support a finding 

that Works had violated any law. Consequently, the trial court abused its discretion in 

finding that substantial evidence was presented that Works had violated Rule #1. 

{¶ 19} Works also argues that the State failed to prove that he had violated Rule 

#6, which provided that he “not use or possess any controlled substance or drugs of 

abuse.” Works contends that his admission to using alcohol did not amount to a violation 

of Rule #6, because alcohol is neither a controlled substance nor a drug of abuse. We 

agree. We have previously found that alcohol is neither a controlled substance nor a 

drug of abuse as defined by the Ohio Revised Code. State v. Stamps, 2d Dist. 

Montgomery No. 23541, 2010-Ohio-1510, ¶ 13, citing R.C. 3719.011(A) and R.C. 

4729.01(E). Thus, Works’ admitted consumption of alcohol was insufficient to sustain a 

violation of Rule #6. No evidence was presented that Works used any controlled 

substance or drug of abuse, and he specifically denied using any during his testimony. 
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Based on this evidence, the trial court abused its discretion in finding that Works’ admitted 

use of alcohol was a violation of his probation. His second assignment of error is 

sustained. 

{¶ 20} Because we sustain Works’ second assignment of error, which is dispositive 

of this appeal, we need not address his remaining assignments of error. See App.R. 12(A)

III. Conclusion

{¶ 21} Having sustained Works’ second assignment of error, the order of the trial 

court revoking his community-control sanction and imposing a 36-month sentence is 

reversed. 

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TUCKER, J. and EPLEY, J., concur.