In a unanimous opinion authored by Justice Terrence O’Donnell, the Ohio Supreme Court today clarified that the prosecuting attorney has the authority to prosecute all complaints, suits, and controversies in which the state is a party, including community control violation hearings.

The Eighth District Court of Appeals had affirmed a standing order of one common pleas court judge in Cuyahoga County and stated “because a community control revocation hearing is not clothed in the formal trapping of a criminal prosecution,” the state’s role is adequately represented by the probation department. The appellate court concluded that there was a process for allowing the prosecutor to appear and speak, and it was therefore not an abuse of discretion by the trial court to deny the prosecutor’s participation.

The opinion of the Supreme Court was delivered in the case of Joseph Heinz, but the Court had accepted jurisdiction in 21 other cases from Cuyahoga County where the prosecuting attorney’s office objected to the standing order of Judge John Sutula that excluded it from participating in community control violation hearings. The Supreme Court decision reversed the ruling of the appellate court that the state’s interest was adequately represented by a county probation officer at a community control violation hearing.

Prosecutor Attempts to Participate in Revocation Hearing
In 2011, Heinz pleaded guilty to attempted abduction, a fourth-degree felony, and was sentenced to 24 months of community control. Although Heinz violated the terms of his community control in 2012 and 2013 by testing positive for marijuana, Judge Sutula extended his community control.

In early 2014, Judge Sutula issued a standing order declaring that the county probation department, not the county prosecuting attorney, represented the state in all community control violation proceedings and that the prosecutor would not be notified of future hearings. The court stated that if the prosecutor’s office desired to speak at a hearing, it needed to request permission at least two days before the scheduled hearing. In addition, the prosecutor’s office had to specify in advance what evidence and argument it intended to present at the hearing.

In 2014, after Heinz submitted a diluted urine sample for drug testing, the court conducted a community control violation hearing in which a probation officer purportedly represented the state, and an assistant prosecutor asserted the right to be heard. The judge determined that the prosecutor had not given the prior notice of intent to appear, and the court denied the prosecutor the opportunity to speak. The court then found that Heinz had violated his community control and sentenced him to 14 days in jail.

The prosecuting attorney’s office appealed to the Eighth District Court of Appeals, which affirmed the trial court’s standing order and explained that a community control violation hearing is not part of a criminal prosecution and that the state’s role is adequately represented by the probation department. And because the court has a process for allowing the prosecutor to participate, it was not an abuse of discretion by the trial court to deny the prosecutor the opportunity to appear.

The prosecutor then appealed that decision to the Supreme Court.

Nature of Violation Hearing
Writing for the court, Justice O’Donnell explained that historically the suspension of sentence and grant of probation has been viewed as “an act of grace” by the sentencing judge. While a convict is not incarcerated when on probation, the offender remains under the supervision of the court and subject to conditions that if violated could result in confinement. The General Assembly authorized common pleas courts to establish county probation departments to support the judicial function of supervising probationers.

More than 40 years ago, in the U.S. Supreme Court’s 1973 Gagnon v. Scarpelli decision, the court had determined that a probationer is not entitled to be represented by an attorney at a revocation hearing because it “is not a stage of criminal prosecution,” recognizing that if the probationer had an attorney, then the state would provide its own counsel and transform the process from an informal hearing to a formal, adversarial proceeding.

In 1996, the Ohio General Assembly revised Ohio’s felony sentencing law and provided “community control” as a possible sentence, Justice O’Donnell pointed out. “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,” he wrote.

Justice O’Donnell explained that the revocation of community control is an exercise of criminal sentencing and that the court may extend the offender’s community control or impose more restrictive conditions or a prison term.

In contrast to probation hearings described by the U.S. Supreme Court in Gagnon, community control violation hearings are formal, adversarial proceedings that follow the rules of criminal procedure, afford the offender the right to an attorney, and allow the victim of the crime to be present. Justice O’Donnell wrote that community control violation hearings are the types of “complaints, suits, and controversies in which the state is a party” and in which the prosecuting attorney represents the state.

He noted that many appellate courts in Ohio have ruled the state has the burden of proving a community control violation occurred, and the laws and rules that apply to the original sentencing of an offender also apply when a court is deciding the sentence for a community control violation.

Justice O’Donnell noted that the appellate court wrongly concluded that a probation officer represents the state in proceedings under R.C. 2929.15. While that statute places the offender under the supervision of the county probation department and directs that any violation “be reported to the probation officer or the sentencing court,” nothing in the law permits the probation department to prosecute a violation.

“Indeed, 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,” he wrote. “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.”

The Court reversed the ruling of the Eighth District and remanded the matter to the trial court with instructions to reschedule a community control violation hearing and provide Heinz and the prosecuting attorney with notice of the hearing and the opportunity to be heard.

2015-1288. State. v. Heinz, Slip Opinion No. 2016-Ohio-2814.

View oral argument video of this case.

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