COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70568 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION MELODY JONES : : Defendant-appellant : : PER CURIAM DATE OF ANNOUNCEMENT : OCTOBER 3, 1996 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-317150 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: ROBERT T. GLICKMAN, ESQ. DALE M. HARTMAN, ESQ. Assistant County Prosecutor 950 Leader Building 8th Floor, Justice Center Cleveland, OH 44114 1200 Ontario Street Cleveland, OH 44113 - 2 - PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the court of common pleas and the briefs of counsel. Defendant-appellant Melody Jones ("defendant") appeals the trial court order finding her guilty of an amended count of robbery with a violence specification. Defendant argues she was not advised of her right to conditional probation or that she was ineligible for probation. On October 7, 1994 defendant was arrested for robbery. Two months later she was indicted by the grand jury for robbery in violation of R.C. 2911.02, the indictment also included a violence and an aggravated felony specification. Initially, defendant pleaded not guilty to the indictment. However, after agreeing to a plea arrangement with the prosecution defendant decided to plead guilty to amended count one with the violence specification in exchange for deleting the aggravated felony specification. At the arraignment, the trial court explained to defendant the rights she was waiving upon entering a plea of guilty. Defendant indicated she understood the proceedings and was voluntarily pleading guilty. It was conveyed to the trial court that defendant was taking medication for depression and also undergoing alcohol counseling. The trial court referred defendant for a presentence report. Three weeks later, at the sentencing hearing, the trial court stated, "[t]his is like your seventh felony conviction" and - 3 - "I really don't have much of a choice here." Defendant was then sentenced to a term of three to fifteen years imprisonment. Defendant's first two assignments of error are interrelated and will be addressed together. Defendant claims she should have been advised of her right to request conditional probation. Defendant supports this argument by maintaining a trial court has a mandatory duty, per R.C. 2951.04, to advise an eligible defendant of the right to request conditional probation for drug treatment if there is any reason to believe defendant is drug dependent or in danger of becoming drug dependent. The state counters by arguing defendant was a repeat offender and pursuant, to R.C. 2951.02, was not eligible for probation due to the number of theft offenses in her record. R.C. 2951.04 provides that a defendant must be eligible for probation pursuant to R.C. 2951.02 in order to be eligible for conditional (drug treatment) probation. R.C. 2951.02 states in pertinent part: "(F) An offender shall not be placed on probation or otherwise have his sentence of imprisonment suspended pursuant to division (D)(2) or (4) of the Revised Code when any of the following applies: "* * * "(2) The offender is a repeat offender or a dangerous offender, as defined in section 2929.01 of the Revised Code." A review of the record indicates defendant was convicted of grand theft, theft, and uttering, and was sentenced to a term of - 4 - one year of imprisonment in each case. R.C. 2929.01(A) provides, in part, as follows: "As used in sections 2929.01 to 2929.51 of the Revised Code: "(A) `Repeat offender' means a person who has a history of persistent criminal activity, and whose character and condition reveal a substantial risk that he will commit another offense. It is prima-facie evidence that a person is a repeat offender if any of the following apply: "* * * "(3) Having been convicted of one or more theft offenses as defined in section 2913.01 of the Revised Code, and having been imprisoned pursuant to sentence for any such offense, he commits a subsequent theft offense." In the present case, defendant's record reveals defendant was convicted of the following crimes: robbery on October 27, 1982; grand theft on August 16, 1983; theft on August 16, 1983; uttering on August 16, 1983; aggravated assault on December 29, 1986; and attempted robbery on March 16, 1992. The record also reveals that defendant had previously been sentenced to three one year terms of imprisonment for grand theft, theft, and uttering. In State v. Bush (1984), 16 Ohio App.3d 407, 409, citing State v. Wood (1976), 48 Ohio App.2d 339, this court stated, "proof of prior convictions for theft offenses is only prima facie evidence that a defendant is a repeat offender." To deny a defendant probation, the trial court must also conclude defendant's character and condition is such that there is a significant risk that he will commit another offense. Id. In Bush, this court upheld a trial court's refusal to impose - 5 - conditional probation where the defendant had a long criminal history and had been convicted of numerous criminal offenses. Even though the defendant admitted he had a drug problem the court found he was a repeat offender ineligible for conditional probation. In the case before us, defendant pled guilty to robbery and was found to have been convicted of and imprisoned for prior theft offenses. The trial court referred defendant for a presentencing report and after considering this and defendant's criminal history stated, "[t]his is like your seventh felony conviction, and this is the second time, I believe, I have been involved." The trial court then decided defendant was a repeat offender, ineligible for conditional probation. A trial judge has broad discretion in making probation determinations. Under these facts and circumstances and in reliance on Bush, this court cannot say that the trial court abused its discretion in finding defendant ineligible for conditional (drug treatment) probation. Therefore, defendant's first two assignments of error are overruled. Defendant's third and final assignment of error alleges the trial court erred by failing to inform defendant she was ineligible for probation thus destroying her ability to make a voluntary and knowing waiver of her rights in violation of Crim. R. 11. The state argues that since defendant was not eligible for conditional probation, the court was not required to hold a hearing. In addition, even if the court did err in sentencing - 6 - defendant it was harmless error and none of defendant's substantial rights were affected because she was not eligible for probation. "The trial court has a mandatory duty to advise an eligible defendant of his right to request conditional probation under R.C. 2951.04(A) if the court has reason to believe that the defendant is or may become drug dependent, and there is no statutory limit on the way a reasonable belief may be engendered." State v. Pruitt (1984), 18 Ohio App.3d 50 (emphasis added). A defendant must be eligible for conditional probation before a trial court has the mandatory duty to advise a defendant of his right to conditional probation. In the instant case, defendant was not eligible for conditional probation so the trial court did not err by not advising defendant that she had a right to conditional probation. Defendant also argues she was not properly advised of her ineligibility for probation, pursuant to Crim. R. (C)(2)(a). This issue was addressed in State v. Smith (1986), 31 Ohio App.3d 26, where the court held "[w]hen a court is unaware of a defendant's criminal record at the time it accepts his plea of guilty pursuant to Crim. R. 11, it has no duty to inform defendant of his probation ineligibility if the facts then before it do not preclude probation." This analysis applies to the instant case. The trial court accepted defendant's guilty plea without informing her that she was ineligible for probation. However, after accepting defendant's - 7 - plea the trial court remanded defendant for sentencing pending the results of a presentencing report. There is no evidence in the record indicating the trial court had any knowledge of defendant's prior criminal record before sentencing. This is supported by the fact that when the trial court accepted defendant's plea of guilty the trial court made no statements concerning defendant's criminal record. But at the subsequent sentencing hearing the trial court commented on the number of prior offenses defendant had committed and also recognized this was defendant's second time before the instant trial court. Therefore, it is reasonable to conclude that the trial court was not informed of defendant's criminal record at the time defendant's plea of guilty was accepted. Thus, defendant's third 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 Court of Common Pleas 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, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE JOHN T. PATTON, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App. R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .