COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 69174, 69195 & 69196 CITY OF WESTLAKE : : ACCELERATED DOCKET Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION GREGORY GALLA : : PER CURIAM Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 1, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Rocky River Municipal Court Case Nos. 94-TRC-6651 & 95-TRC-53 JUDGMENT: Affirmed. Stay of Execution Vacated. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: For defendant-appellant: MARY A. LENTZ, ESQ. GEORGE GLAVINOS, JR., ESQ. WALTER & HAVERFIELD 24650 Center Ridge Road, #210 1300 Terminal Tower Westlake, Ohio 44145 Cleveland, Ohio 44113-2253 - 2 - PER CURIAM: Appellant was pulled over by police while in his car on January 2, 1995. A complaint charged appellant with driving left of the center line, operating a vehicle without a license and driving while under the influence, all in violation of the City of Westlake Codified Ordinances. At trial in the Rocky River Municipal Court the prosecution's motion to dismiss the driving left of center charge was granted. Appellant withdrew his original plea of not guilty and entered a plea of no contest to the charge of operating a vehicle without a license, a first degree misdemeanor. The court found him guilty and sentenced him to a fine of $150.00 plus costs plus forty-five days in jail. The charge of driving under the influence was reduced to a physical control offense, a third degree misdemeanor. Appellant pleaded guilty to the lesser charge and was sentenced to $500.00 plus costs and another forty-five day jail term. The trial court also found appellant to be in violation of his probation. Appellant had pleaded guilty to a driving under the influence charge on June 24, 1994. He was sentenced to $450.00 plus costs and forty-five days of incarceration. The court suspended the jail term, conditioned upon one year of active probation. While under probation for that year appellant was to obey all laws and ordinances; complete an assessment and treatment with a probation officer; totally abstain from alcohol or drug use; be subject to random testing; pay restitution of $843.30 for the - 3 - police car he beat up; and, to report to his probation officer. Appellant had appeared once before in the court, during his probationary period, for the offense of driving without a license. The court at that time did not find him in violation of his probation. This time the court decided he should not get yet another chance. The court found him in violation not only for his convictions on the driving without a license and the physical control offenses, but also for the consumption of alcohol. His blood alcohol level on January 2nd was .066. The trial court concluded that each of appellant's three forty-five day jail terms would be served concurrently. The court granted appellant a stay of execution for the two sentences given on the January 2nd offenses, but denied the stay of execution on appellant's reinstated sentence for the probation violation. Appellant filed a notice of appeal on June 23, 1995 and obtained a stay of execution from this court for the sentence on his probation violation. Appellant raises two assignments of error challenging the court's finding that he was in violation of probation and the court's sentences for the two offenses stemming from the January 2nd incident. I THE COURT ERRED IN REVOKING APPELLANT'S PROBATION, SUA SPONTE, WITHOUT PROVIDING APPELLANT WITH WRITTEN NOTICE OF THE VIOLATIONS AND CONDUCTING A HEARING PURSUANT TO SAID NOTICE DENYING APPELLANT OF HIS DUE PROCESS. Appellant argues that he was improperly determined to be in violation of his probation where the trial court failed to conduct - 4 - a hearing or give written notice to appellant of the court's intention to determine the issue of his probation. Appellant's argument is not well taken. The hearing which appellant claims he was denied, occurred on June 21, 1995. He was represented by counsel and allowed the opportunity to confront any witnesses against him. Appellant indicated to the court that he understood that his plea of guilty constituted a violation of his probation. He also indicated that he understood the terms of his probation, yet was determined to drink occasionally if he felt so inclined. Although it is not apparent from the record that appellant received written notice of the possibility that his probation could be revoked on June 21st, we find harmless error in this fact. Another court of appeals has held that: Even though there was a lack of written notice, probationer did not show prejudice where a preliminary hearing was had, probationer conceded that probable cause existed to initiate further proceedings, and final hearing was conducted and arguments were presented in manner suggesting that probationer was not prejudiced by failure to receive written notice of the violation. State v. Bleasdale (1990), 69 Ohio App.3d 68, at paragraph one. Under the circumstances of the present case, appellant was not prejudiced by the failure to receive written notice of the violation. He received adequate notice of the offenses with which he was charged, stemming from January 2nd. He was also well aware of the implications of further convictions and evidence of drinking alcohol with regard to his probationary status. We find no - 5 - evidence of prejudice in the manner in which the court held appellant's probation revocation hearing. Appellant's first assignment of error is overruled. II THE TRIAL COURT ERRED BY ABUSING ITS DISCRETION IN IMPOSING A JAIL SENTENCE ON OFFENSES THAT WERE BASED UPON AN IMPROPER REVOCATION OF APPELLANT'S PROBATION. Appellant asserts that the court improperly based its sentencing for the physical control and no operator's license offenses on the sentence imposed as a result of the probation violation. Appellant's assertion is without merit. Section 303.99 of the City of Westlake Codified Ordinances allows a penalty of 90 days and a fine of $1,000.00 for a first degree misdemeanor conviction. For a third degree misdemeanor, the maximum sentence is a possible 60 days and $500.00. Appellant was sentenced to 45 days and $150.00 for the offense of driving with no operator's license, a first degree misdemeanor. He received a sentence of 45 days and $500.00 for the physical control offense, a third degree misdemeanor. Both of these sentences were well within the trial court's discretion to order. The trial court made specific findings that appellant clearly did not wish to acknowledge that he had a problem controlling his drinking and/or anger. She found that he deliberately refused to cooperate with the explicit terms and conditions of his probation. It was on this reasonable basis that the court imposed the sentences. - 6 - Furthermore, the sentences for the two convictions stemming from the January 2nd incident were ordered to be served concurrently with the reinstated 45 day sentence from the original DUI conviction. This fact renders any arguments about the two recent sentences moot. Appellant does not suffer any prejudice from these sentences. In a practical sense, he is only serving the original 45 day term. Appellant's second assignment of error is overruled. The trial court's convictions, sentences and revocation of appellant's probation are affirmed. Appellant's stay of execution granted by this Court is vacated. - 7 - 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. ________________________________ PATRICIA A. BLACKMON, PRESIDING JUDGE _________________________________ ANN DYKE, JUDGE _________________________________ SARA J. HARPER, JUDGE, CONCURS IN JUDGMENT ONLY 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 .