COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67954 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION JOSEPH F. O'DONNELL : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 13, 1995 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-277412 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: L. CHRISTOPHER FREY (#0038964) The Justice Center 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: PATRICK E. TALTY (#0037840) 20800 Center Ridge Road - Suite 211 Rocky River, OH 44116-4386 - 2 - 2 SPELLACY, P.J.: Defendant-appellant Joseph F. O'Donnell ("appellant") appeals the revocation of his probation. Appellant assigns the following error for review: I. APPELLANT WAS NOT ACCORDED EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE THE ASSIGNED COUNSEL WHO WAS APPOINTED TO REPRESENT HIM ON THE DAY OF HIS PROBATION VIOLATION HEARING WAS UNABLE TO ADEQUATELY PREPARE TO REPRESENT HIM. Finding the assignment of error to lack merit, the judgment of the trial court is affirmed. I. Appellant was charged in a six count indictment for grand theft, forgery, uttering, passing a bad check, and two counts of securing a writing by deception. Appellant withdrew his plea of not guilty and entered a plea of guilty to grand theft, forgery and passing a bad check. The remaining counts were nolled. At the sentencing hearing held December 21, 1992, the trial court was informed appellant was sentenced in a federal case to five months at the Harbor Light program during which appellant would be on work release. Appellant then was to serve five months of house arrest. Appellant's counsel told the court appellant had gained employment two weeks before as a salesman earning a salary of approximately $23,000. Appellant stated he would be paid $700 every two weeks of which ten percent was owed to the Federal Court for restitution. - 3 - 3 Appellant was sentenced to twenty-four months for grand theft; twelve months for forgery; and twelve months for passing bad checks. The sentences were to run consecutively. The sentence was suspended and appellant placed on five years probation. Restitu- tion in the amount of $185 was to be paid every payday for the term of the probation. Appellant was to maintain full-time employment. If appellant lost his job, he was to find another within thirty days. Appellant was ordered to complete the five-month work release program at Harbor Light and continue his psychological care. On February 3, 1993, appellant was brought before the trial court for sentencing in another case. Appellant was indicted and pled guilty to that charge before the sentencing hearing held in the instant case. The trial court also held a hearing to determine whether appellant had violated his probation. The trial court learned from the Federal probation officer that, under the terms of appellant's Federal probation, appellant was required to terminate his previous employment and to seek regular employment. Appellant's attorney stated the Federal probation did not allow appellant to drive making it impossible for appellant to hold his sales position. Appellant currently was seeking work. The probation officer informed the court appellant failed to make a restitution payment as required under the terms of his probation. The officer attempted to verify appellant's employment by calling the company and speaking to the owner. He was told - 4 - 4 appellant had never been employed by the company on a full-time basis but only had helped out for a few days in the beginning of December. Appellant told the trial court he did not learn of the restriction on driving until he reported to Harbor Light on December 31, 1992. He called his employer and was told the job would not be held for five months. Appellant was planning to interview for different positions the following week. The trial court found appellant to be a probation violator. The original sentence was imposed. II. In his assignment of error, appellant contends he was denied effective assistance of counsel as his attorney was appointed the same day the hearing was held. Appellant argues his attorney never asked any questions of the probation officer, the representative of the Federal probation department, or appellant in an effort to explain any violation of the terms of his probation. To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient, and that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668, 687. A properly licensed attorney is presumed to execute his duties in an ethical and competent manner. State v. Smith (1987), 36 Ohio App.3d 162. Ineffectiveness is demonstrated by showing that counsel's errors were so serious that he or she failed to function - 5 - 5 as the counsel guaranteed by the Sixth Amendment. State v. Hamblin (1988), 37 Ohio St.3d 153. To establish prejudice, a defendant must show that there is a reasonable possibility that, but for counsel's errors, the result of the proceeding would have been different. Strickland, supra, at 694. The decision as to whether to revoke a defendant's probation is within the sound discretion of the trial court. State v. McKnight (1983), 10 Ohio App.3d 312. The privilege of probation rests upon the probationer's compliance with the conditions of probation. Any violations of those conditions may properly be used as evidence against a probationer to revoke the privilege. State v. Bell (1990), 66 Ohio App.3d 52. Ohio courts have held that the quantum of evidence required to support a revocation of probation is not reasonable doubt, however, the evidence must be of a substantial nature in order to find revocation justified. State v. Mingua (1974), 42 Ohio App.2d 35, 40. In State v. King (October 7, 1993), Cuyahoga App. Nos. 63821 and 63822, unreported, this court rejected a claim that a defen- dant's counsel was ineffective because the attorney was appointed the same day as the revocation hearing. Counsel had informed the court of appellant's background and offered explanations for appellant's failure to report. It was within the trial court's discretion to reject those explanations. Appellant argues his attorney never pointed out to the court that continuing to work at his sales position would violate his - 6 - 6 federal probation. The record reveals the following statements by appellant's counsel: The other thing is the Federal program does not allow him to drive. As a result of that he couldn't hold a job he had when we were here for the plea, because he has to take public transportation and work by all their other rules, which he has to live at Harbor Light, and he can get out on a work release program, or seeking work, which he is doing now, and the Federal people have sent him [to] several places so far for appointments. (Tr. 29-30). Appellant's counsel made precisely the point appellant argues he did not. Appellant further maintains he offered to prove he was employed at the sales position on December 31, 1992, and did not learn until January 8, 1993, that he was no longer employed there. At his sentencing hearing, the trial court was told appellant was working at the sales position for two weeks and could continue to go to his job under the terms of his Federal sentence. Yet at the probation violation hearing, the probation officer stated appellant never was employed in a sales position but only had worked a few days there. Appellant had violated his probation by not being employed full-time and by failing to make the scheduled restitution payment. Appellant was in violation of two of the requirements of his probation. Appellant's explanations of his difficulty in transpor- tation to work under the Harbor Light program and his efforts to obtain work were presented to the court. Appellant's attorney as well as appellant presented this dilemma to the trial court. It was within the trial court's discretion whether or not to accept - 7 - 7 appellant's explanations. Appellant was adequately represented by counsel. Appellant's assignment of error is overruled. Judgment affirmed. - 8 - 8 It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas 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. JAMES M. PORTER, J. and ANN DYKE, J., CONCUR. LEO M. SPELLACY PRESIDING JUDGE 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 .