COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67821 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION GARY LEE HEINBACH : : Defendant-appellant : : DATE OF ANNOUNCEMENT : AUGUST 31, 1995 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-303021 JUDGMENT : REVERSED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: JOHN F. CORRIGAN, ESQ. ROBERT M. INGERSOLL, ESQ. Assistant County Prosecutor Assistant Public Defender 8th Floor, Justice Center 100 Lakeside Place 1200 Ontario Street 1200 West Third Street Cleveland, OH 44113 Cleveland, OH 44113 GARY LEE HEINBACH Serial No. A290-748 Allen Correct. Inst. P.O. Box 4501 Lima, OH 45802 - 2 - PATTON, C.J. Defendant-appellant Gary Heinbach appeals from the decision of the trial court revoking his probation and ordering into execution a sentence of one and one-half years. Additionally, appellant maintains he received ineffective assistance of counsel during the probation revocation hearing. On December 7, 1993, appellant was indicted for grand theft in violation of R.C. 2913.02. Appellant pled guilty to one count of grand theft on January 4, 1994. Appellant was sentenced to incarceration for a term of one and one-half years. The sentence was suspended and appellant was placed on probation for three years. Under the terms of appellant's probation he was to remain in county jail pending an opening in an inpatient drug treatment facility as determined by the probation department, participate fully in aftercare, attend Narcotics Anonymous and seek full-time employment or attend vocational-educational school through the Bureau of Vocational Rehabilitation. The probation department determined that the appellant was to complete a 90-day treatment program at Freedom House. The following facts were adduced at appellant's probation revocation hearing. On January 24, 1994, appellant was transported to Freedom House for inpatient treatment. On February 20, 1994, appellant was terminated from the inpatient treatment program for failure to follow curfew. On February 21, 1994, appellant was arrested for domestic violence. Appellant's probation officer - 3 - testified that appellant signed a waiver to his right to a preliminary hearing. The appellant made a lengthy statement pertaining to his domestic violence charge and his failure to follow curfew at Freedom House. Appellant stated that he struck his wife not out of anger but to keep her from hurting herself. Appellant stated that his wife did not physically attack him and that he was wrong. Appellant then stated that he was 18 minutes late for curfew on February 20, 1994 but did not indicate the reason he was late for curfew. However, appellant admitted that he "messed up" by missing curfew and he "can live with that." Initially, we note that appellant has served his entire sentence. The Supreme Court of Ohio has held in State v. Golson (1994), 71 Ohio St. 3d 224 that: A person convicted of a felony has a substan- tial stake in the judgment of conviction which survives the satisfaction of the judgment im- posed upon him or her. Therefore, an appeal challenging a felony conviction is not moot even if the entire sentence has been satisfied before the matter is heard on appeal. Accordingly, appellant's appeal is not moot as the state has argued. Appellant's first assignment of error states: I. GARY HEINBACH WAS DENIED HIS LIBERTY WITHOUT DUE PROCESS OF LAW, WHEN THE TRIAL COURT DECLARED HIM TO BE A PROBATION VIOLATOR WITHOUT FIRST HOLDING A PROBATION VIOLATION HEARING WHICH COMPORTED WITH MINIMUM DUE PROCESS REQUIREMENTS. - 4 - Appellant claims that he was denied his liberty without due process of law when the trial court held a probation violation hearing which did not comport with minimum due process requirements. Specifically, appellant maintains that the trial court did not provide him with sufficient prior written notice and disclosure of evidence to be used against him as required by law; therefore, he was denied his right to due process. The United States Supreme Court has established that a defendant in a probation revocation hearing is entitled to the same due process rights provided a defendant in a parole revocation hearing. Gagnon v. Scarpelli (1972), 411 U.S. 778. Specifically, the process of revoking probation requires a preliminary "probable cause" hearing and a subsequent final revocation hearing. Gagnon, at 784-786. At the final revocation hearing a defendant is entitled to the following due process requirements: (a) written notice of the claimed violation of probation, (b) disclosure of evidence against the defendant, (c) opportunity to be heard in person and to present witnesses and documents in evidence, (d) the right to confront and cross-examine adverse witnesses, (e) neutral and detached hearing officer, (f) a written statement by the fact finders as to evidence relied upon in finding probable cause of revoking probation, (g) informed of the right to counsel, (h) right to provide counsel where there is a colorable claim or mitigating circumstances * * *. Gagnon at 786, citing Morrissey v. Brewer (1972), 408 U.s. 471, 489. - 5 - Appellant argues that the trial court violated his constitutional right to be notified in writing as to how his probation had been violated and we agree. This court has held that "[w]e are not willing to alter the due process requirements set forth in Gagnon v. Scarpelli, supra, by removing the word 'written' from the requirement that a probationer receive 'written notice of the claimed violation of probation.'" State v. Jones (May 9, 1991), Cuyahoga App. No. 58423, unreported at 7. Moreover, this court has held that the Gagnon due process requirements were not met when an appellant did not receive written notice of the violation of probation and a preliminary hearing was not held. State v. Williams (1988), 43 Ohio App.3d 185, 187. In the present case the facts are similar to Smith, supra. There is no evidence in the record that appellant received written notice of the claimed violation of his probation prior to his probation revocation hearing. Furthermore, approximately 10 minutes prior to appellant's revocation hearing his probation officer had him sign a waiver for his preliminary hearing. Consequently, appellant did not receive a preliminary hearing. Accordingly, this court finds that appellant's due process rights were violated. Accordingly, appellant's first assignment of error is sustained. Appellant's second assignment of error states: II. GARY HEINBACH WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH AMEND- - 6 - MENT OF THE UNITED STATES CONSTITUTION AND SECTION, 10, ARTICLE I OF THE OHIO CONSTITU- TION, DURING HIS PROBATION REVOCATION HEARING. Appellant maintains that he was denied effective assistance of counsel during his probation revocation hearing. Specifically, appellant claims that his defense counsel's strategy was weak and counsel failed to inform the court that appellant suffered from Chronic Pulmonary Lung Disorder and as a result appellant suffers from shortness of breath in cold weather and that was why he missed curfew at Freedom House. This assignment of error is rendered moot by the disposition of appellant's first assignment of error. App.R. 12(A)(1)(c). Judgment reversed and remanded for further proceedings to determine whether appellant violated his probation. - 7 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his 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. ANN DYKE, J. JOHN V. CORRIGAN, J.,* CONCUR (*SITTING BY ASSIGNMENT: JOHN V. CORRIGAN, RETIRED JUDGE OF COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT) CHIEF JUSTICE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .