COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60997 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : DEBORAH CALVERT : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 16, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-241509. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Albert L. Purola, Esq. 35000 Kaiser Court Suite 202 Willoughby, OH 44094 -2- DAVID T. MATIA, C.J.: Defendant-appellant appeals from the judgment of the Cuyahoga County Court of Common Pleas which revoked her probation and executed the original sentence all without prior written notice to her. Appellant assigns for review the court's judgment. Based on the reasons adduced below, we reverse this cause and remand to the trial court. STATEMENT OF THE CASE On March 29, 1990, defendant-appellant Deborah Calvert pled guilty to two counts; a drug law violation R.C. 2925.11, possession of cocaine, less than bulk; and possession of criminal tools, R.C. 2923.24 in common pleas case, CR-241509. On May 3, 1990, appellant was sentenced to a definite term of six months at Marysville. The sentence, however, was suspended and appellant was placed on two years probation. While on probation, appellant was arrested and subsequently charged with drug abuse in a new case, CR-256476. A pretrial hearing on that case was set for November 28, 1990. At the November 28th pretrial, another pretrial hearing on "new" case CR-256476 was set for December 12 1990. Prior to the December 12th hearing, appellant Calvert and her counsel were notified by telephone that the pretrial hearing of December 12, 1990 would also be a probation violation hearing pertaining to her heretofore granted probation. Over appellant's objection to the probation violation hearing, the December 12th pretrial proceeded. Following the evidence of the probation officer and appellant Calvert's testimony, the -3- trial judge declared appellant in violation of her probation and ordered the original sentence into execution. It is from this judgment and sentence appellant timely appeals. THE SOLE ASSIGNMENT OF ERROR DEBORAH CALVERT WAS DENIED DUE PROCESS OF LAW WHEN THE TRIAL COURT REVOKED HER PROBATION WITHOUT PROVIDING ANY NOTICE, WRITTEN OR ORAL, OF THE ALLEGED VIOLATION. Appellant, in her sole assignment of error argues that the trial court denied her due process of law. Specifically, appellant argues that the trial court erred by revoking her probation without written or oral notice of the probation violation. This assignment of error is well taken. Appellant Calvert argues that the trial court violated her constitutional right to be notified in writing as to how her probation had been violated. Appellant relies upon this court's holding in State v. Williams (1988), 43 Ohio App. 3d 184, which followed the United States Supreme Court's holding in Gagnon v. Scarpelli (1973), 411 U.S. 778 and Morrissey v. Brewer (1972), 408 U.S. 471. This reliance is well founded. This court has held that "[b]efore a defendant's probation may be revoked, the defendant must be given written notice of the alleged probation violation and a preliminary hearing on the charge must be held." Williams, supra, paragraph two of the syllabus; Gagnon, supra. Compliance with these two procedures ensures that a defendant will receive the due process requirement -4- of notice of the alleged violation, and an opportunity to conduct an independent review of the evidence supporting the allegation of a probation violation. Williams, supra, at 187. The United States Supreme Court has established both a bipartite procedure and certain minimum due process requirements for probation revocation hearings. Gagnon, supra. Specifically, the process of revoking probation requires a preliminary "probable cause" hearing and a subsequent final revocation hearing. Gagnon at 784-786. At the preliminary hearing, the sole inquiry is whether the probationer has in fact violated the terms of probation. Gagnon. Once it is determined that the conditions of probation have been violated, a second, less summary proceeding is held to determine whether the probation should be revoked or modified. Gagnon. It is for this latter hearing that the court set forth six minimum due process requirements guaranteed by the Fourteenth Amendment. These requirements include: "*** (a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses ***; (e) a 'neutral and detached' hearing body ***; and, (f) a written statement by the factfinders as to the evidence relied upon and reasons for revoking [probation or] parole. ***" Gagnon, supra, at 786 (quoting Morrissey v. Brewer [1972], 408 U.S. 471, 489). -5- In the case sub judice, the record indicates that neither counsel nor appellant received written notice of the probation violation charge. The record reads: MR. PUROLA: Judge, allow me to note for the record that I object to this proceeding on the ground that there is no probation violation charge pending against Miss Calvert, and consequently, this Court is without jurisdiction to conduct a revocation hearing. I rely upon State vs. Williams from our Court of Appeals, the Eighth District, 43 Ohio Appellate 3d 184, for that proposition. One of the reasons for the notice of the violation is so that somebody can have a meaningful opportunity to cross-examine the complaining witness in this case, which Mr. Feher isn't the complaining witness, but he is the one providing the evidence. I am unaware of what the actual charge is against Miss Calvert. THE COURT: I just told you. Failure to report two arrests. MR. PUROLA: I heard what your Honor said. I would note that the Appellate decision requires a written notice, and I do not have a written notice, nor does -- THE COURT: You were notified by telephone approximately two weeks ago, and you were notified an hour ago this morning. Do you have any questions? I am proceeding with a hearing. (Tr. 7, 8.) * * * MR. PUROLA: I thought my question was: Did he inform Miss Calvert in writing, Judge. THE COURT: He indicated no; he informed her by telephone. (Tr. 10.) -6- The record clearly speaks for itself; no written notice was sent to appellant or counsel stating the probation violation charge. Due process requires such written notice. Gagnon, supra; Williams, supra. State v. Smith (1991), Cuyahoga App. No. 61553, unreported. Thus, appellant's sole assignment of error is well taken. Accordingly, the trial court's judgment is reversed and the cause remanded to the court for a probation revocation hearing consistent with the due process requirements set forth in Gagnon, supra. -7- This cause is reversed and the cause remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant recover of said appellee her costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. DYKE, J. and KRUPANSKY, J., CONCUR. DAVID T. MATIA CHIEF JUSTICE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .