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Due process rights violated in 11th District drug case
TRACEY BLAIR
Legal News Reporter
Published: February 27, 2014
A Ravenna woman must be resentenced because her due process rights were violated when a Portage County trial judge sentenced her as a probation violator without specifying what the alleged violation was, the 11th District Court of Appeals recently ruled.
Danelle Gibson, 32, pleaded guilty to two first-degree misdemeanors and was sentenced to 360 days in jail and a $1,000 fine on Feb. 28, 2011, according to case summary. The trial court suspended the sentence and $700 of the fine on the condition Gibson be placed on basic/general supervision of the probation department for two years, plus other conditions, including attendance at AA/NA meetings.
In April 2013, a motion to revoke her probation was filed by the probation department after Gibson was arrested on a felony deception to obtain a dangerous drug charge.
After Gibson tested positive for opiates on July 5, 2011, a judge found her guilty of violating probation without giving her a chance to address the court and request leniency.
“It’s clear to me, Ms. Gibson, that you have a problem,” the judge said in court. “It’s very clear. And if you don’t face it and you don’t get a handle on it, it’s going to get out of control. It may be already out of control. I’m going to find that you are convicted of this violation and I am going to sentence you to thirty days in Portage County Jail, that will begin now.
“But you have a problem and it’s clear. Within six days, fifty pills. And it looks like to me, I have heard at least five doctor’s names. You’re doctor shopping. This is classic pill abuse. Classic.”
However, in the judge’s judgment entry, there was no indication which of the two alleged offenses – the positive test for opiates or being arrested for deception - the trial court referred to or what evidence was used for determining a probation violation occurred, 11th District Judge Thomas R. Wright wrote in a majority opinion.
In addition, “classic pill abuse” and “doctor shopping” statements refer to conduct that occurred before the revocation hearing in May 2013; but after the alleged probation violation in July 2012, so the trial court’s statement of facts does not support a finding she committed either violation, Judge Wright stated.
The panel reversed and remanded the case despite finding the next six assignments of errors were without merit.
Eleventh District Judge Colleen Mary O’Toole concurred.
“I believe that wherever and whenever a defendant is eligible to be deprived of liberty he or she should receive all procedural and substantive due process consistent with the Ohio constitution, including the right of allocution, the right to know their sentence at the time of sentencing, and the right to know the consequences of violation probation,” O’Toole wrote in a concurring opinion.
Eleventh District Judge Cynthia Westcott Rice concurred in part and dissented in part.
Rice said a review of the entire hearing shows Gibson had clear notice of the basis of the court’s conclusion and evidence to back up the judge’s ruling.
“The majority’s position is based upon an unnecessarily narrow reading of the phrase `this violation,’“ Judge Rice stated in her opinion. “… The court’s statement provided appellant with notice that she was in violation of her probation as a result of the felony charge and testing positive for opiates. And the subsequent observations regarding appellant’s drug abuse problems and apparent `doctor shopping’ provided sufficient supportive evidence to justify the court’s ultimate conclusion. I would therefore overrule appellant’s first assignment of error.”
The case is cited State v. Gibson, 2014-Ohio-433.