In December 2011, Joseph Heinz pleaded guilty to attempted abduction, a fourth-degree felony. The trial court sentenced him to a 24-month term of community control. In April 2012 and November 2013, the trial court found that Heinz had violated the terms of his community control by testing positive for marijuana. As a result, it extended the term of community control to December 2015.
What is “community control?” In 1996, when the Ohio legislature enacted legislation to revise Ohio’s felony sentencing laws, “community control replaced probation as a possible sentence under Ohio’s felony sentencing law.”
Unlike probation, which is a period of time served during suspension of a sentence, community control sanctions are imposed as the punishment for an offense at a sentencing hearing. These sanctions include community residential sanctions (halfway houses, etc.), nonresidential sanctions (house arrest, electronic monitoring, community service, and curfews), and financial sanctions (restitution and fines.)
In February 2014, the trial court issued a standing order declaring that the county probation department, not the Cuyahoga County Prosecuting Attorney, represents the state in all community control violation proceedings and that the prosecutor would not be notified of any future hearings. The court stated that if the Prosecutor’s Office wanted to speak at a hearing, it would require permission from the court, and the request must be filed no later than 2 days before the hearing.
When Heinz tested positive for marijuana, the court conducted a community control violation hearing on October 14, 2014, during which it noted that the probation officer was “representing the interests of the State of Ohio.” An assistant prosecuting attorney addressed the court and asserted the right to be present and heard. After determining that the prosecutor had not given prior notice of an intent to appear at the hearing, the trial court denied the prosecuting attorney an opportunity to speak. The court then found that Heinz had violated the conditions of community control and imposed a 14-day jail sentence.
The court of appeals later affirmed the judgment of the trial court, explaining that “the probation department, and not the prosecutor’s office, is the entity entrusted with the authority to properly institute community control violation proceedings.”
After that, the state filed an appeal with us – the Ohio Supreme Court – urging its right to be part of such proceedings. The question before us was this: does the county prosecuting attorney have a right to notice of and the opportunity to represent the state at community control violation proceedings?
Our decisions in prior cases have described a suspension of sentence and grant of probation as an act of grace allowing a convict to go free on conditions and as a contract for leniency between the offender and the sentencing judge.
However, probation is not a remission of penalty; the convict remains under the supervision of the court and subject to any restraints and conditions imposed, and a breach of those conditions permits imposition of the suspended prison sentence. The Ohio legislature therefore authorized the common pleas courts to establish county probation departments to support the judicial function of supervising probationers.
In a 1973 case called Gagnon v. Scarpelli, the United States Supreme Court held that a probationer generally lacks a constitutional right to an attorney at a revocation proceeding. The court stated that probation revocation “is not a stage of a criminal prosecution” and it distinguished the criminal trial – an adversarial proceeding where the state is represented by an attorney – from the revocation hearing, where “the State is represented, not by a prosecutor, but by a parole officer.”
The court justified its holding that an attorney need not always be provided at revocation proceedings by pointing to the informal nature of the revocation proceeding, noting that if an attorney is provided for the probationer, “the State in turn will normally provide its own” attorney, transforming the informal hearing into a formal, adversarial proceeding.
But the revocation of community control is an exercise of the sentencing court’s criminal jurisdiction, and the court may extend the term of the offenders’ community control or impose a more restrictive sanction or a prison term if the conditions of community control are violated.
Thus, in contrast to probation violation and revocation proceedings as described in Gagnon, community control violation hearings are formal, adversarial proceedings. And, at community control violation hearings, the Rules of Criminal Procedure afford an offender the right to an attorney. Plus, a victim in the case has the right to be present.
Additionally, state law expressly grants the county prosecuting attorney the authority to “prosecute, on behalf of the sate, all complaints, suits, and controversies in which the state is a party.” Our resolution of this issue was bolstered by the many courts throughout Ohio that have held that is it the state that bears the burden of proving that a community control violation occurred.
As Justice Terrence O’Donnell noted in the majority opinion, state law and the Criminal Rules “direct the trial court at the time of imposing sentence to afford the prosecuting attorney the right to appear and speak on behalf of the state, because it has an interest in ensuring that a proper sentence is imposed to punish and rehabilitate the offender while protecting the public.”
It’s also important that the majority of probation officers are not attorneys, and under the trial court’s order, they would be compelled to engage in the unauthorized practice of law. Moreover, they could not be expected to competently represent the state or to make the proper objections for the record in the event of an appeal.
Because the state is a party to all community control violation proceedings, the prosecuting attorney is the state’s legal representative in those proceedings, and is therefore entitled to proper notice and an opportunity to be heard at all community control violation proceedings.
Accordingly – by a seven-to-zero vote – we reversed the judgment of the court of appeals and sent the matter to the trial court for further proceedings consistent with our opinion in this case.
Paul Pfeifer is an associate justice of the Supreme Court of Ohio.