COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 69051, 69052, 69053 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JOSEPH MAYFIELD : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: MAY 23, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case Nos. CR-286689, CR-285275, CR-293372 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. HENRY J. HILOW, ESQ. CUYAHOGA COUNTY PROSECUTOR MCGINTY, GIBBONS & HILOW BY: STEPHEN L. MILES, ESQ. 1375 E. Ninth Street, #1920 ASSISTANT COUNTY PROSECUTOR Cleveland, Ohio 44114 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Defendant-appellant Joseph Mayfield, appeals his conviction for drug and weapons related offenses. In three assignments of error, appellant claims that he was denied a fair probation violation hearing; that he was denied effective assistance of counsel and that his guilty pleas were defective. Upon review, we find appellant's assignments of error to be without merit. Hence, we affirm his convictions. On September 15, 1992 appellant was indicted in CR 285275 for Aggravated Drug Trafficking (R.C. 2925.03) and Drug Abuse (R.C. 2925.11). On October 6, 1992 he was indicted in CR 286689 for Drug Abuse (R.C. 2925.03). On October 26, 1992 appellant pled guilty to Attempted Aggravated Drug Trafficking in CR 285275 and to Drug Abuse in CR 286689. On December 9, 1992 appellant was placed on five years conditional probation after the court suspended the one and one-half year consecutive sentence it imposed in each case. Appellant's probation was conditioned upon obtaining and maintaining employment; providing 200 hours of community work service; participating in drug treatment and remaining drug free. On March 31, 1993 appellant was charged in CR 293372 with the following offenses: Drug Trafficking (R.C.2925.03) with a firearm and prior conviction specification; Drug Abuse with two furthermore clauses (2925.11); Carrying a Concealed Weapon (CCW) (R.C. 2923.12) and Having A Weapon While Under a Disability (R.C. 2923.13). On April 16, 1993 appellant pled guilty to the trafficking charge with - 3 - out the firearm specification and with the prior conviction 1 specification. He also pled guilty to the CCW charge. On May 13, 1993 the trial court imposed a term of two to fifteen years (2-15) in CR 293372 and also imposed the sentences it suspended in CR 285275 and CR 286689. Appellant appealed these convictions in Cuyahoga App. Nos. 69051, 69052 and 69053. However, the cases were 2 remanded for lack of a final appealable order. On March 12, 1996 the trial court clarified its journal entry in CR 293372 nunc pro tunc to May 13, 1993. The entry states in relevant part: ... Defendant is sentenced to 2 to 15 years at Lorain Correctional Institution as to Count One and 18 months at Lorain Correctional as to Count 3, Count Three is to run concurrent with Count One. Sentence in this case is consecutive to sentences in CR 286689/285275. This appeal followed. I THE TRIAL COURT ERRED IN FINDING THAT JOSEPH MAYFIELD WAS A PROBATION VIOLATOR IN THAT MR. MAYFIELD'S DUE PROCESS RIGHTS WERE VIOLATED WHEN HE DID NOT RECEIVE A FAIR HEARING. In his first assignment of error, appellant claims that he failed to receive written notice of probation violations; that he was denied his right to cross-examine witnesses; that the results of his positive drug tests were untrustworthy and that the presiding judge was not neutral. Upon review, we find appellant's arguments fail to establish reversible error. 1 Counts two and four were nollied. 2 See, Cuyahoga App. Entry Nos. 68619, 71087. - 4 - A defendant is entitled to written notice of probation violations. Gagnon v. Scarpelli (1973), 411 U.S. 778; State v. Williams (1988), 43 Ohio App.3d 184, 186-187. However, failure to timely object to due process violations during a probation revocation proceeding waives any error. State v. Henderson (1989), 62 Ohio App.3d 848, 853; see, also, State v. Williams (1977), 51 Ohio St.2d 112, paragraph one of the syllabus. While written notice of probation violations could not be located in the record, we find such defect was waived as appellant failed to raise any objections whatsoever during his May 13, 1993 3 sentencing/probation revocation hearing. During the hearing, appellant's probation officer testified that appellant tested positive for cocaine and opiates on January 12, 1993; that he pled guilty to trafficking on April 16, 1993 and that he failed to complete 200 hours of community work service. The court then affirmatively invited appellant to cross-examine the probation officer and to present any opposing evidence or testimony. Appellant declined to so and expressly waived his right to a formal hearing on the matter indicating that he wished to speak only to 4 mitigating factors. Moreover, appellant has failed to establish 3 At the close of appellant's April 16, 1993 guilty plea hearing the trial court informed him that the matter was being referred to the Probation Department for a presentence, investigation report and that sentencing would take place on May 13, 1993. 4 Appellant informed the court that he failed to complete his community service because a bullet wound prevented him from doing so. - 5 - that lack of written notice of violations prejudiced him. See, State v. Wood (September 29, 1994) Cuyahoga App. No. 65904, unreported citing State v. Bleasdale (1990), 69 Ohio App.3d 68, 70- 71. Having failed to object, having declined the opportunity to cross-examine and present evidence and having expressly waived his right to pursue a hearing on the matter, appellant cannot be heard to complain on appeal that his rights were violated. See, State v. Jones (1978), 60 Ohio App.2d 179. The record also fails to support appellant's assertion that the presiding judge was not neutral. Hence, his first assignment of error is overruled. II DEFENSE COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO ADDRESS THE NON-COMPLIANCE OF THE DUE PROCESS STANDARDS DETERMINED IN MORRISSEY V. BREWER, SUPRA AND WHEN HE WAIVED MR. MAYFIELD'S RIGHT TO A FORMAL HEARING. In his second assignment of error, appellant citing Morrisey v. Brewer (1972), 408 U.S. 471 claims that counsel's waiver of a formal hearing and counsel's admission that appellant was a probation violator constituted ineffective assistance. We find appellant's argument to be unpersuasive. An ineffective assistance of counsel claim embodies a two- part standard of review. First, a defendant must show that counsel's representation fell below an objective standard of reasonableness. Second, the defendant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See, Strickland v. Washington (1984), 466 U.S. 668, 687, 694. The - 6 - record demonstrates that appellant pled guilty to two felonies in CR 293372 after receiving the privilege of probation from the court in CR 285275 and CR 286689. Hence, it was not unreasonable for counsel to take a conciliatory approach with the court and to focus on mitigation rather than on fighting a clear violation of probation. Hence, counsel's performance did not fall below an objective standard. Even if we were to assume arguendo, that counsel's representation was substandard, we cannot say that the outcome of the proceeding would have been otherwise as it is highly unlikely that a repeated violation of the drug and weapons laws would not constitute a probation violation. Appellant's second assignment of error is overruled. III THE TRIAL COURT ERRED IN ACCEPTING JOSEPH MAYFIELD'S PLEA AS A CRIMINAL RULE 11(C) CANNOT BE SUBSTANTIALLY COMPLIED WITH WHEN THE APPELLANT'S PLEA WAS NOT KNOWINGLY AND INTELLIGENTLY MADE. In his third assignment of error, appellant claims that he was never informed of the fact that the sentences suspended in CR 285275 and CR 286689 could be imposed if he were found to be a probation violator. He also claims that he did not make a knowing and intelligent plea in CR 293372. Again, we find appellant's arguments to be unpersuasive. At the conclusion of appellant's sentencing hearing in CR 285275 and CR 286689 the trial court stated as follows: THE COURT: We are going to take a chance on you, Joseph. - 7 - You are to report to the Probation Department and be in communication with your probation officer. And follow their orders, when you are supposed to show up. Do you understand all that ? APPELLANT: Yes, sir, I do. * * * THE COURT: Those are consecutive, those sentences. Do you know what that means? APPELLANT: What? No. THE COURT: That means you get three years. One-and- a-half and one-and-a-half, equals three. If you go out there and do any more drugs, and you are brought back here, I'm going to send you away for three years. Do you understand that ? APPELLANT: Yes, sir. THE COURT: All right. You better. (Tr. 14, 15) Hence, the court apprised the appellant of the possible consequences of a subsequent conviction for violating the drug laws. Moreover, the record clearly demonstrates that the trial court fully complied with the mandates of Crim. R. 11 prior to accepting appellant's plea in CR 293372 and that such plea was knowing, voluntary and intelligent. THE COURT: Do you understand that you have the right of a trial before a jury; you may waive a trial by jury and yet have a full an complete trial before a judge. * * * You have the right during your trial to take the witness stand and testify or speak in your own defense, but you cannot be compelled or forced to testify. - 8 - * * * You have the right during your trial to have your attorney present ... . If your are without funds ... an attorney can be appointed ... to represent you. You have the right to compulsory process, to require the appearance of defense witnesses. * * * You have the right to cross-examine your accusers. If you enter a guilty plea you have waived or given up your right to trial together with all the other rights I have explained to you. Is that clear to you? APPELLANT: Yes, Sir. THE COURT: Are you on probation or parole to this Court or any other Court in any other case? APPELLANT: Yes. THE COURT: Do you understand as a consequence of your plea of guilt in this case you can be cited as a probation violator in your prior case, and any sentence originally imposed would follow the sentence in this c a s e ? Restated, if that occurs that sentence would have to be served consecutively to any sentence I might impose in this case. Do you understand that? APPELLANT: Yes, sir. THE COURT: Do you know what consecutive means? APPELLANT: No, sir. THE COURT: That means that if you have a sentence imposed on one case and then you get another case, and then you get a sentence imposed on the second case you have to serve both sentences one after another. Do you understand that? Instead of at the same time, do you understand that? APPELLANT: (No response.) THE COURT: Well, let me spell it out for you a little - 9 - more clearly. (Tr. 3,4,5) The court then explained the meaning of consecutive terms of imprisonment a second time. In response, appellant stated that he understood the concept. He then entered guilty pleas to trafficking and to CCW indicating that such pleas were voluntary. (Tr. 7-9) Accordingly, we overrule appellant's last assignment of error and affirm the judgment of the trial court. It is so ordered. - 10 - 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. O'DONNELL, J., AND PATTON, J., CONCUR. ANN DYKE JUDGE 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, .