State v. Alexander

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[Cite as State v. Alexander, 2007-Ohio-5457.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO STATE OF OHIO, Plaintiff-Appellee, : : APPEAL NO. C-070021 TRIAL NO. B-0606669 D E C I S I O N. vs. : DEBORRAH ALEXANDER,1 Defendant-Appellant. : : Criminal Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is: Affirmed Date of Judgment Entry on Appeal: October 12, 2007 Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Appellee, Timothy J. McKenna, for Appellant. We note that there is an inconsistency in the spelling of Alexander s first name. We adopt the spelling contained in the indictment. 1 OHIO FIRST DISTRICT COURT OF APPEALS SYLVIA SIEVE HENDON, Judge. {¶1} In September 2006, Deborrah Alexander pled guilty to cocaine possession, a felony of the fifth degree, and was placed on three years intensivesupervision community control. In October 2006, Alexander was charged with community-control violations for (1) failing to submit a DNA sample, (2) failing to notify her probation officer of a change in residence, and (3) failing to report to her probation officer. In January 2007, Alexander pled no contest to the violations and was sentenced to a one-year prison term. Alexander now appeals. Community-Control Revocation {¶2} In her first assignment of error, Alexander argues that the trial court violated her rights to due process when it revoked her community-control sanction. Alexander directs us to Gagnon v. Scarpelli, a case in which the United States Supreme Court set forth certain minimum requirements of due process for probation-revocation proceedings.2 In Gagnon, the Court applied the same procedural requirements to probation-revocation proceedings that it had earlier imposed for parole-revocation proceedings in Morrissey v. Brewer.3 {¶3} Under Gagnon, two important stages occur in a typical revocation of probation, or what Ohio now calls community control.4 The first stage, often in the nature of a preliminary hearing, involves an inquiry to determine whether there is probable cause to believe that the defendant has violated the community-control (1973), 411 U.S. 778, 93 S.Ct. 1756. (1972), 408 U.S. 471, 92 S.Ct. 2593. 4 Gagnon, supra, at 782, citing Morrissey, supra; Columbus v. Lacy (1988), 46 Ohio App.3d 161, 162, 546 N.E.2d 445. 2 3 2 OHIO FIRST DISTRICT COURT OF APPEALS sanction.5 Then, [t]here must also be an opportunity for a hearing, if it is desired by the [defendant], prior to the final decision on revocation * * *. 6 At this stage, one of the requirements of due process is the right to confront and cross-examine adverse witnesses.7 At either stage, if the defendant opts to enter a guilty or a no-contest plea to the community-control violation, the need for an evidentiary hearing is obviated. {¶4} In this case, Alexander argues that the trial court failed to comply with the due-process requirements set forth in Gagnon by failing to hold a preliminary hearing and by not allowing her to confront and cross-examine her probation officer. Both arguments are feckless. By entering a no-contest plea to the community- control violation, Alexander admitted the truth of the facts alleged in the complaint,8 thereby waiving certain due-process rights, including her right to confront her probation officer.9 Moreover, Alexander has not demonstrated, or even alleged, that she suffered any prejudice as a result of the alleged noncompliance. We overrule Alexander s first assignment of error. Effect of Plea of No Contest {¶5} In her second assignment of error, Alexander argues that the trial court erred by failing to comply with Crim.R. 11 in accepting her no-contest plea. Alexander contends that she did not fully understand her constitutional rights prior to entering her plea. {¶6} Under Crim.R. 11(C)(2)(c), a trial court must inform the defendant that she is waiving certain constitutional rights before accepting a plea of guilty or no Morrissey, supra, at 485. Id. at 487-488 (emphasis added). 7 Gagnon, supra, at 786, citing Morrissey, supra, at 487. 8 Crim.R. 11(B)(2). 9 See State v. Delaney (1984), 11 Ohio St.3d 231, 233, 465 N.E.2d 72. 5 6 3 OHIO FIRST DISTRICT COURT OF APPEALS contest to a felony charge. Before accepting the plea, the court must inform the defendant that he is waiving his privilege against compulsory self-incrimination, his right to jury trial, his right to confront his accusers, and his right of compulsory process of witnesses. 10 {¶7} But the requirements of Crim.R. 11(C)(2) do not apply to a community- control-violation hearing.11 A defendant faced with revocation of probation or parole is not afforded the full panoply of rights given to a defendant in a criminal prosecution.12 So a revocation hearing is an informal one, structured to assure that the finding of a * * * violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the [defendant s] behavior. 13 {¶8} Instead, Crim.R. 32.3(A) applies to community-control-revocation hearings. Before a trial court imposes a prison term for a violation of the conditions of a community-control sanction, the court must hold a hearing at which the defendant is present and apprised of the grounds for the violation.14 {¶9} In this case, the trial court informed Alexander of the grounds for the alleged violation. Before accepting Alexander s no-contest plea, the court asked her, Do you understand if you enter a plea of no contest, I take a look at the basis for the violation. If it does constitute a violation of your probation, ma am, I will find you guilty, and if I do so, I can impose the original sentence that I told you, which would be one year in the Ohio Department of Corrections. Do you understand that? When State v. Ballard (1981), 66 Ohio St.2d 473, 423 N.E.2d 115, paragraph one of the syllabus, following Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709. 11 See State v. Durgan (May 10, 1976), 1st Dist. Nos. C-75288 and C-75503; State v. Jones, 1st Dist. No. C-050112, 2006-Ohio-2339, at ¶18. 12 Morrissey, supra, at 480. 13 Id. at 484. 14 Crim.R. 32.3(A). 10 4 OHIO FIRST DISTRICT COURT OF APPEALS Alexander responded, Yes, the court asked her if she had any questions, and Alexander responded that she did not. {¶10} Alexander did not dispute the grounds for the community-control violation. She apologized for her behavior and indicated, I want to admit and live up to my mistakes that I have done on this probation thing. Because nothing in the record suggests that Alexander did not understand the consequences of her nocontest plea, we overrule the second assignment of error and affirm the judgment of the trial court. Judgment affirmed. PAINTER, P.J., and HILDEBRANDT, J., concur. Please Note: The court has recorded its own entry on the date of the release of this decision. 5

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