COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69885 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION WILLIAM A. PYLES : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION APRIL 10, 1997 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-281736 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS-JONES NICHOLAS K. THOMAS, ESQ. Cuyahoga County Prosecutor 21801 Lake Shore Blvd. JOHN R. MITCHELL, Assistant Euclid, Ohio 44123 Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, P.J., Defendant-appellant William A. Pyles appeals from his convictions following a guilty plea to one count of drug abuse and two counts of receiving stolen property (motor vehicle) and the subsequent revocation of his probation arising therefrom. Defendant contends that he was not advised of his federal and state constitutional rights against self incrimination prior to his plea or prior to his testimony at the probation revocation hearing. We find no merit to these contentions and affirm the judgment below. The defendant was originally indicted in three different cases: in CR-279035 he was charged with one count of possession of cocaine, less than bulk amount with violence specifications; in CR- 281736 he was charged as part of a five count indictment with receiving stolen property (motor vehicle) with violence specifications (three counts), and violations of drug laws and drug trafficking with violence specifications; in CR-281737 he was charged as part of a two count indictment on two counts of receiving stolen property (motor vehicle). On September 24, 1992, the defendant entered into a plea agreement in which he pled guilty to the following: one count of drug abuse, possession of cocaine, less than the bulk amount; and two counts of receiving stolen property (motor vehicle). The remaining counts in all three cases were nolled. On November 6, 1992, the trial court sentenced defendant: in CR-279035 to eighteen months; in CR-281737 to twenty-four months; - 3 - and in CR-281736 to twenty-four months for count one and to eighteen months for count four. The sentences were to be served consecutively or a total period of seven years. The trial court, however, placed the defendant on five years probation subject to conditions. On July 15, 1993 the trial court judge revoked the defendant's probation for continued drug abuse and ordered the sentences into execution. On November 28, 1995 this Court granted defendant a delayed appeal. We will address the assignments of error in the order presented. I. THE APPELLANT WAS DENIED HIS FIFTH AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION AND UNDER ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION. The essence of this assignment of error is that Crim.R. 11(C) was not satisfied when the defendant pled guilty on September 24, 1992 in that defendant claims he was not informed of his constitutional rights against self incrimination. As a result, the defendant further claims he was not aware of his rights at a subsequent probation revocation hearing. We find this argument to be wholly without merit. Crim.R. 11(C)(2) holds: (2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept such plea without first addressing the defendant personally and: (a) Determining that he is making the plea voluntarily, with understanding of the nature - 4 - of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for probation. (b) Informing him of and determining that he understands the effect of his plea of guilty or no contest, and that the court upon acceptance of the plea may proceed with judgment and sentence. (c) Informing him and determining that he understands that by his plea he is waiving his rights to jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself. In addressing Crim.R. 11(C)(2), the Supreme Court of Ohio has held that, prior to accepting a guilty plea from a criminal defendant, the trial court must inform the defendant that he is waiving his privilege against compulsory self-incrimination, his right to jury trial, his right to confront his accusers, and his right of compulsory process of witnesses. State v. Ballard (1981), 66 Ohio St.2d 473, citing Boykin v. Alabama (1969), 395 U.S. 238. The Court was careful to state that literal compliance with Crim.R. 11(C) was not required, but that the explaining or referring to the rights in a manner reasonably intelligible to the defendant was sufficient. Ballard at 480. In the instant case, the trial court readily met the requirements of Crim.R. 11(C)(2) and went to great lengths to advise the defendant of his rights in compliance with the Rule prior to accepting his plea. (Sept. 24, 1992 Tr. 6-18). - 5 - Specifically addressing defendant's privilege against self incrimination, the following colloquy transpired: JUDGE GALLAGHER: All right. And do you understand that at your trial or trials you would have the right to take the witness stand or the right not to take the witness stand? DEFENDANT: Yes * * * JUDGE GALLAGHER: Now, knowing you have all these trial rights we just discussed, is it your wish and your desire to waive them and enter the pleas that have been outlined in this court, on the conditions that have been outlined to this Court? DEFENDANT: Yes (Tr. 11-12). In unmistakable language the court advised defendant he had the right to testify or not to testify as he wished. This is sufficient to advise him of his Fifth Amendment privilege against self incrimination. State v. McGowan (Oct. 2, 1996), Cuyahoga App. No. 68971, unreported; State v. Manos (Feb. 10, 1994), Cuyahoga App. No. 64616, unreported; State v. Graves (Oct. 6, 1994), Cuyahoga App. No. 66653, unreported. Although the trial court did not conduct the "recommended" dialogue as suggested by the Court in Ballard, the trial court did in fact determine that the defendant was "informed," "understood" and made his plea "knowingly, voluntarily and intelligently." The trial court when accepting a guilty plea must substantially comply with Crim.R. 11. State v. Stewart (1977), 51 Ohio St.2d 86. "Substantial compliance means that under the totality of the - 6 - circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving." State v. Nero (1990), 56 Ohio St.3d 106, 108. Substantial compliance with Crim.R. 11(C) is determined upon a review of the totality of the circumstances. State v. Carter (1979), 60 Ohio St.2d 34, 38; State v. Rainey (1982), 3 Ohio App.3d 441. The underlying purpose of Crim.R. 11(C) is to convey to the defendant certain information so that he can make a voluntary and intelligent decision whether to plead guilty. State v. Ballard (1981), 66 Ohio St.2d 473. If the defendant receives the proper information, it then can be assumed he understands that information. State v. Carter, supra at 38. A careful review of the record demonstrates that the requirements of Crim.R. 11(C) were scrupulously observed. Defendant was intelligibly advised of his privileges against self incrimination. Assignment of Error I is overruled. II. THE TRIAL COURT FAILED TO INFORM THE APPELLANT OF HIS FIFTH AMENDMENT RIGHT AT THE TIME THAT PROBATION WAS REVOKED. The defendant argues that since he was never informed of his Fifth Amendment rights when pleading guilty, any subsequent statement made by the defendant during the probation revocation hearing was made in violation of the defendant's Fifth Amendment rights. As resolved by our disposition of Assignment of Error I, the defendant's constitutional rights were duly protected. He was duly advised of his Fifth Amendment rights. Further, a probationer - 7 - is not entitled to the privilege against self incrimination at a probation violation hearing. The United States Supreme Court addressed the due process requirements for a probation or parole hearing in Gagnon v. Scarpelli (1973), 411 U.S. 778. The Court held that due process was satisfied when the following procedural safeguards were used at a parole or probation revocation hearing: (1) written notice of the claimed violation of probation; (2) disclosure of evidence against the defendant; (3) opportunity to be heard in person and to present witnesses and documents in evidence; (4) the right to confront and cross-examine witnesses; (5) a neutral and detached hearing officer; (6) a written statement by the fact finder as to evidence relied upon in finding probable cause of revoking probation; (7) informed of his right to counsel; and (8) a right to have counsel provided at State expense where there is a colorable claim or mitigating circumstance. Gagnon at 786. A probation revocation hearing, however, is not a formal criminal prosecution but is "an informal hearing structured to assure that the finding of a *** [probation] violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the *** [probationer's] behavior." Morrissey v. Brewer (1972), 408 U.S. 471, 484. In Gagnon, supra, the Court held at 782, "probation revocation, like parole revocation, is not a state of a criminal prosecution ***." - 8 - A probationer may be required to discuss matters affecting his probationary status. When statements are used solely for subsequent revocation proceedings, Fifth Amendment protections are not afforded. See State v. Ferguson (1991), 72 Ohio App.3d 714, 716, quoting Minnesota v. Murphy (1984), 465 U.S. 420, 435. The Ohio Supreme Court has recently held in State ex rel. Wright v. Ohio Adult Parole Auth. (1996), 75 Ohio St.3d 82 at 92: This court has observed that a parolee in a revocation proceeding does not have available all procedural rights possessed by a criminal trial defendant. State ex rel. Coulverson v. Ohio Adult Parole Auth. (1991), 62 Ohio St.3d 12, 16, 577 N.E.2d 352, 355. See Morrissey v. Brewer (1972), 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494 ("[R]evocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations. *** Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions."). For example, "[t]he Parole Board may admit hearsay." Coulverson, 62 Ohio St.3d at 16, 577 N.E.2d at 355. See Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604, 33 L.Ed.2d at 499 (A parole revocation hearing is not a criminal prosecution; "the process should be flexible enough to consider evidence *** that would not be admissible in an adversary criminal trial."). Thus, it is not only consistent for this court to apply a balancing test to determine which rights should apply in revocation proceedings, it is virtually a requirement. When the admissibility of relevant evidence in parole revocation proceedings is weighed against application of the exclusionary rule, the balance clearly falls on the side of admissibility. "[T]here is great value to society in the reintegration of its nonconforming members - 9 - through supervised release." Montez, supra, 952 F.2d at 859. However, this reintegration can be achieved only if all reliable information is available to assess the propriety of continued release. Id. "[E]xcluding from [revocation] proceedings reliable evidence bearing on the [individual's] rehabilitation would contribute little to deterring constitutional violations while impeding society's interest in protecting itself against convicted criminals who have abused the liberty afforded them." Bazzano, supra, 712 F.2d at 831. One of the conditions of defendant's probation was the prohibition of the use of any controlled substances. Defendant was given random drug tests, three of which he failed. Defendant did not contest the results of the tests and admitted to having a "drug problem." Any statements made by the defendant at the hearing were clearly only to support his revocation and under the aforesaid authority were not entitled to Fifth Amendment protection. Accordingly, the defendant cannot claim a violation of his Fifth Amendment rights as the trial court was under no duty to inform him further of these rights at the probation revocation. Assignment of Error II is overruled. Judgment affirmed. - 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 Court of Common Pleas 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. ROCCO, J., CONCURS. O'DONNELL, J., CONCURS IN JUDGMENT ONLY. JAMES M. PORTER PRESIDING 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 - 11 - .