COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68684 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION GILBERT YOUNG : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 8, 1995 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-243706 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: JOHN W. MONROE (#0061845) Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender BY: ROBERT M. INGERSOLL (#0023748) Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113 - 2 - 2 SPELLACY, J.: Gilbert Young appeals the revocation of his probation and raises two assignments of error: I. GILBERT YOUNG 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. II. GILBERT YOUNG WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION, DURING HIS PROBATION REVOCATION HEARING. I. On October 6, 1989, Young was indicted for four counts of rape, in violation of R.C. 2907.02, each with an aggravated felony specification, and four counts of gross sexual imposition, in violation of R.C. 2907.05, each with a violence specification. The alleged victims were Young's two granddaughters, ages five and six. Young subsequently pled guilty to two counts of gross sexual imposition, each with a violence specification. On February 23, 1990, the trial court sentenced Young to consecutive terms of four to ten years. The trial court then suspended the sentences and placed Young on probation for five years, stating: During that initial one year period, at least, you will undergo psychiatric counselling (sic) at an appropriate center. You're to have absolutely no contact whatsoever, either through your own initiative, or by telephone, or personal visits to the household or place where the victim's (sic) mother resides. You're to have no friends or relatives place - 3 - 3 telephone calls to her, personal visits, or written correspondence. (Tr. 20). The trial court went on to order that Young remain in jail until "the course of structure for psychiatric counseling is formed." (Tr. 21). On April 2, 1990, the trial court held a probation revocation hearing. Kenneth Bania, from the probation department, stated that no counseling could be arranged because Young refused to acknowledge that he sexually abused his granddaughters. Bania further stated that he had spoken with two counseling programs and had been informed that Young could not begin counseling until he admitted to the deviant behavior. The following exchange between the trial court and Young's attorney then took place: THE COURT: Mr. Cartellone, as you know, on behalf of your client, he is entitled to a full and complete hearing at this time as to whether he is in violation of the terms of his probation set down by this court. At this hearing you may inquire of Mr. Bania as on cross examination and present any evidence you may wish on his behalf. And he may be heard and you may be heard. MR. CARTELLONE: Basically for the record, I would indicate I think you're familiar with the circumstances under which this sentence was imposed. It was a lengthy plea situation. Even at the time of plea, Mr. Young would not admit to actually committing the offenses he is charged with, although he did enter a plea so we could resolve the matter accordingly. I think that in standing here today he doesn't refuse to see any counselors, does not refuse any services the county makes available. What the county tells us is they have no services as such available. - 4 - 4 What I would request be done in view of these circumstances is that Mr. Young (sic), the condition to receive counseling be deleted from his probation and probation terminated or continued. He has been in jail nine months. We made the plea under the express condition that he would be placed on probation. THE COURT: Not unless it is on the record. MR. CARTELLONE: It is on the record. I don't want to argue with the Court. THE COURT: I don't know whether that's true or not. I would have to have it to review. MR. CARTELLONE: I would think this is. THE COURT: If he was put on probation he was put on probation with specific conditions. Those conditions haven't been met and apparently they are impossible to be met. I don't have any sympathy for him, not one bit. He hasn't as far as I'm concerned. Go ahead. Do you have anything else to say? MR. CARTELLONE: All I would say, your Honor, is I think if you do check the record it would indicate as (sic) such. Mr. Young has indicated a willingness to speak to any counselor, any type of treatment or partici- pate in any counseling program. He has never refused to do so, just his failure to admit guilt in these matters has failed the county - - THE COURT: I have information before me, I know. This man tampered with these two little girls, and not only that, there is a complaint right here in the file -- these are both grandchildren under the age of thirteen -- there is (sic) claims that this man raped one of his own daughters when that child was thirteen years old. And there is a great fear within the family of this man. He is out of control and he doesn't even want to - 5 - 5 recognize it. All he cares about is his own gratification. He doesn't care what abuse or terror or harm he does to the other person. I'm withdrawing, revoking probation in this case and let the sentence (sic) carried out. MR. CARTELLONE: Your Honor, are you willing to review the transcript at the time we took the plea prior to doing that, because I think this was a very unusual situation. THE COURT: I'm willing to review it. That has nothing to do with it. The fact of the matter is this man as a condition of his probation he was to be held in the county jail here. He was to be interviewed in the jail and get himself in some kind of a program. He didn't do that. He didn't cooperate with that effort. How is some counselor going to talk to him when he doesn't have the brains to tell him the truth? Sheriff, take him out of here. (Tr. 23-27). II. In his first assignment of error, Young contends his probation revocation hearing failed to comply with minimum due process requirements. First, Young argues that he failed to receive written notice of the alleged probation violations. A defendant is entitled to written note of probation violations. Gagnon v. Scarpelli (1973), 411 U.S. 778; State v. Williams (1988), 43 Ohio App.3d 184, 186- 187. Failure to timely object to due process violations during a probation revocation proceeding, however, waives any error. State v. Henderson (1989), 62 Ohio App.3d 848, 853; see, also, State v. - 6 - 6 Williams (1977), 51 Ohio St.2d 112, paragraph one at the syllabus. Even if Young had properly objected, we would have found the failure to receive written notice harmless error. See State v. Bleasdale (1990), 69 Ohio App.3d 68, 70-71. Second, Young argues the trial court improperly relied on hearsay. A defendant has "the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation) ***." Gagnon, 411 U.S. at 786; see, also, Columbus v. Bickel (1991), 77 Ohio App.3d 26, 34. Young maintains he was denied the opportunity to cross-examine Bania and the counselors who spoke with Bania. Again, Young waived any error by failing to object. In fact, Young essentially waived the entire probation revocation hearing. Accordingly, Young's first assignment of error is not well taken. III. In his second assignment of error, Young contends he was denied the right to effective assistance of counsel. An ineffective assistance of counsel claim requires a showing that counsel's performance was deficient and that the deficient performance was prejudicial. Strickland v. Washington (1984), 466 U.S. 668, 687. Deficient performance requires a "showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment." Id. Prejudice requires a "showing that counsel's errors were so - 7 - 7 serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. When determining whether counsel's performance was deficient, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689. Young argues that his counsel's decisions to waive a full hearing and to argue that the counseling requirement should be dropped from the conditions of probation constituted deficient performance. We disagree and find them acceptable trial strategies. Accordingly, Young's second assignment of error is not well taken. 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. 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. JOHN T. PATTON, P.J. and DIANE KARPINSKI, J., CONCUR. LEO M. SPELLACY 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 it will become the judgment and order of the court and time period for review will begin to run. .