COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68436 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION STEVE VLAHOPOULOS : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 31, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-259525. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Karen L. Johnson Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Joseph Bancsi, Esq. 19645 Detroit Road Suite 313 Rocky River, Ohio 44116 SWEENEY, JAMES D., J.: Defendant-appellant Steve Vlahopoulos appeals from his conviction for felonious assault in violation of R.C. 2903.11. Following a guilty plea, he was sentenced to a term of incarceration of eight to fifteen years. The sentence was suspended, and on September 12, 1991, the appellant was placed on probation for four years with the following terms: no contact with his children while on probation; two hundred hours of community service per year; and current child support. The appellant was also assessed court costs and fined $7,500. Prior to entering the plea, the court entered a nolle prosequi as to the first two counts of the appellant's indictment. The first count of the indictment was rape of an individual under the age of 13, in violation of R.C. 2907.02, and the second count was felonious sexual penetration of an individual under the age of 13, in violation of R.C. 2907.12. At the time the appellant was sentenced, his former spouse was permitted to speak. The record also contains a letter from Ms. Vlahopoulos to the court which clarifies certain aspects of this case. It seems that the appellant was married to Ms. Vlahopoulos for fourteen years, and that together they have six children. The appellant sexually abused one of his daughters, and the appellant's conviction for felonious assault resulted. While on probation, the appellant was twice found to be in violation of his probation for failure to keep his child support - 3 - current and failure to maintain hospitalization for his children. The court continued his probation each time, and he complied with the court's orders regarding child support and hospitalization. On December 14, 1994, the trial court, on its own initiative, held a status hearing. The appellant was present and represented by counsel. At this hearing, the trial court extended the appellant's probation for one year, and ordered that he be transferred to the sex offenders program within the probation department. The appellant was not found to be in violation of his probation. The appellant sets forth three assignments of error, the first and third of which will be considered together. The first and third assignments of error: THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLE ERROR WHEN IT EXTENDED APPELLANT'S PROBATIONARY PERIOD PREVIOUSLY IMPOSED IN ITS SENTENCING ORDER WITHOUT ANY PRIOR NOTICE AND IN THE ABSENCE OF ANY EVIDENCE OR RATIONAL BASIS FOR SUCH EXTENSION. THE TRIAL COURT VIOLATED APPELLANT'S DUE PROCESS RIGHTS GUARANTEED BY THE UNITED STATES AND STATE OF OHIO CONSTITUTIONS WHEN IT ISSUED ITS DECEMBER 22, 1994 ORDER WHITOUT (SIC) ANY NOTICE AND HEARING UPON NOTICED CHARGES. The appellant argues in the first assignment of error that the court erred when it extended his probation without a rational basis for so doing. The court acted without prior notice and without entering a finding that the appellant had violated the terms of his probation. The appellant contends that the court's speculation that he would fail to pay his fine was not sufficient to extend his - 4 - probation. The State asserts that the court committed no abuse of discretion by merely extending the appellant's probation. In the third assignment of error the appellant argues that the court erred when it failed to provide him with "prior notice and a hearing on the issues with an opportunity to prepare and present a defense to known charges." Appellant's brief at p.6. A defendant's probation may be extended as provided in R.C. 2951.07: Probation under section 2951.02 of the Revised Code continues for the period that the judge or magistrate determines and, subject to divisions (H)(1)(a) and (2) of that section, may be extended. Except as provided in divisions (H)(1)(a) and (2) of that section, the total period of probation shall not exceed five years. Due process procedures required in probation revocation hearings need not be strictly complied with in cases involving extensions or modifications of probation, especially extensions that confine the total period of probation to a term of less than the five years allowable under R.C. 2951.07. State v. Zeiszler (1984), 19 Ohio App.3d 138. This court has held that probation is not a matter of right for a convicted felon; it is by law a matter of discretion for the trial judge. State v. Tresville (Feb. 6, 1975), Cuyahoga App. Nos. 33625, 33626, unreported, citing to In re Reed (1969), 21 Ohio App.2d 1. In Tresville, the court went on to hold that a trial court is vested with the authority, in the exercise of its discretion, to extend probation. Such a decision may be made ex - 5 - parte, but may not be made arbitrarily, with no rational basis for the decision. The court ultimately decided that the failure to pay an imposed fine was sufficient rationale for extending probation. Similarly, in State v. Criss (1988), 55 Ohio App.3d 238, this court held that probation may be extended without a hearing. The court determined that no abuse of discretion is committed by the court when probation is extended for the nonpayment of court costs. In the case sub judice, the trial court, after a hearing with counsel present, extended the appellant's probation for one year, and permitted the appellant additional time in which to pay court costs. The appellant correctly notes that the trial court did not find the appellant to be in violation of the terms of his probation. However, the court was within its discretion to call upon its vast experience and note that the payment of a large fine at the last moment is difficult for defendants. The court rationally based its decision on the fact that at the time of the hearing the appellant had not paid any of the pending fine or court costs. In addition, the court stated on the record that letters from the former spouse of the appellant and information from the probation department indicated that there were still problems with the appellant complying with the terms of his probation. The trial court afforded the appellant sufficient due process for a status hearing, and the court did not abuse its discretion in extending the probation of the appellant from four years to five, within the limits as prescribed in R.C. 2951.07. - 6 - The appellant's first and third assignments of error are overruled. The second assignment of error: THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLE ERROR WHEN IT TRASFERRED (SIC) APPELLANT TO THE SEX OFFENDERS PROGRAM WITHOUT ANY PRIOR NOTICE AND WITHOUT SUCH BEING A CONDITION OF HIS PROBATION AS SET FORTH IN THE INITIAL ORDER AND IN THE ABSENCE OF ANY EVIDENCE FOR SUCH TRANSFER. The appellant argues that because the appellant was not convicted of a sex offense, the court abused its discretion in placing him in the sex offenders program within the probation department. The court's discretion in imposing conditions of probation is not limitless. The conditions must be related to the interests of doing justice, rehabilitating the offender and insuring his good behavior. The court should consider whether the conditions are reasonably related to rehabilitating the offender, have some relationship to the crime of which the offender was convicted and related to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation. State v. Jones (1990), 49 Ohio St.3d 51. The appellant has failed to demonstrate that the court's decision to place the appellant in a specific program was an abuse of discretion. Although the appellant has no conviction for a sex offense, it is clear from the record that his conviction resulted from the sexual abuse of his daughter. The trial court was not - 7 - required to ignore the underlying behavior which precipitated the conviction. Further, the docket reveals that on September 27, 1994, the appellant was referred to the West Side Mental Health Center. The record does not contain the results of this referral. Since the trial court is afforded the presumption of regularity, Volodkevich v. Volodkevich (1989), 48 Ohio App.3d 313 and State v. Brown (1988), 38 Ohio St.3d 305, fn. 4, this court must presume that the trial court had knowledge of the results of the appellant's evaluation. Absent a showing of any abuse of discretion, the trial court did not err in placing the appellant in the sex offenders program within the probation department. The appellant's second assignment of error is overruled. Judgment affirmed. - 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. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. LEO M. SPELLACY, P.J., and JOSEPH J. NAHRA, J., CONCUR. JAMES D. SWEENEY 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 .