COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70141 IN RE: JERRY BURTON, A MINOR : CHILD : : Plaintiff-Appellee : : JOURNAL ENTRY v. : AND : OPINION [APPEAL BY: JERRY BURTON] : : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 14, 1997 CHARACTER OF PROCEEDING: Civil appeal from the Juvenile Court Division of the Common Pleas Court, Case No. 9415716 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JOHN J. DUFFY, ESQ. Cuyahoga County Prosecutor 23823 Lorain Road Suite 270 JOSE TORRES, ESQ. North Olmsted, Ohio 44070 The Justice Center 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 2 KARPINSKI, J.: This appeal arises from an order of the juvenile court revoking probation of a juvenile and committing him to an ODYS facility. The juvenile was originally charged on October 27, 1994, with three counts of delinquency. The charges, if committed by an adult, would constitute (1) aggravated arson, a second degree felony, (2) possession of a dangerous ordnance, a Molotov cocktail, a fourth degree felony, and (3) vandalism, a fourth degree felony. An investigating officer filed a report indicating that the juvenile threatened to burn the victim's residence upon his release. The juvenile denied the charges. He was then appointed counsel from the public defender's office and released from custody to home detention. Following discovery, the juvenile, still represented by counsel, withdrew his denial, admitted the charges, and was found delinquent. The referee's report, adopted by the juvenile court, specifically referred to defendant's threats against the victim. Following a dispositional hearing at which the juvenile was represented by counsel, the juvenile court imposed consecutive indefinite sentences on two counts. However, the court suspended execution of the sentences and placed the juvenile under intensive probation subject to specified conditions. The sentencing order was journalized on April 10, 1995. 3 The juvenile was thereafter charged twice with delinquency for violating the court-ordered terms of his probation. The first time, on May 10, 1995, approximately one month after sentence, the juvenile waived his right to counsel and admitted the charge of disruptive behavior in school. At the conclusion of the hearing he was again placed on probation. The probation revocation proceedings forming the basis for this appeal commenced on October 6, 1995. The juvenile was charged with refusing to attend assigned positive education program ( PEP ) classes and leaving his home without his parents' permission. He specifically waived his right to counsel and admitted to violating the terms of his probation. The court found that he violated the court-ordered terms of his probation. Rather than disposing of the matter immediately, the court continued the matter for a dispositional hearing. Prior to the continued hearing, the juvenile and his parents submitted written letters requesting that the court not commit the juvenile to an ODYS facility. The juvenile's letter again admitted that he violated the terms of his probation. Following the conclusion of the continued hearing, the court committed defendant to an ODYS facility for this second probation violation. The juvenile appeals raising two assignments of error. The first assignment of error follows: THE TRIAL COURT ERRED IN FAILING TO ADVISE APPELLANT OF HIS RIGHT TO COUNSEL AT THE DISPOSITIONAL HEARING. This assignment lacks merit. 4 The juvenile complains that he was not advised of his right to counsel at the continued November 20, 1995, hearing. He does not challenge the validity of his waiver of counsel at the prior October 13, 1995, revocation hearing when he admitted he was a probation violator. Juv.R. 35(B) governs revocation of probation in juvenile proceedings and provides in pertinent part as follows: The court shall not revoke probation except after a hearing at which the child shall be present and apprised of the grounds on which revocation is proposed. The parties shall have the right to counsel and the right to appointed counsel where entitled pursuant to Juv.R. 4(A). Probation shall not be revoked except upon a finding that the child has violated a condition of probation of which the child had, pursuant to Juv.R. 34(C), been notified. The parties have not cited any case law involving this precise issue in the context of juvenile court proceedings. Courts in juvenile proceedings have recognized that the formal procedures used in adult probation revocation proceedings do not apply. In re Hall(Apr. 1, 1991), Preble App. No. CA90-11-021, unreported at p. 4. However, we shall consider this well-developed body of authority concerning the right to counsel in adult criminal probation revocation proceedings for any guidance it may provide in this context. The United States Supreme Court has held there is no Sixth Amendment constitutional right to the appointment of counsel in all probation revocation proceedings. Gagnon v. Scarpelli (1973), 411 U.S. 778, 787-790. The Gagnon Court concluded that the decision to appoint counsel is left to the sound discretion of the trial judge. 5 Id.; State v. Bolds (May 1, 1989), Stark App. No. CA-7628, unreported at pp. 3-4. In this case, the record shows that the court informed the juvenile of his right to counsel at the October 13, 1995, probation revocation hearing. The juvenile affirmatively waived his right to counsel and admitted to violating the terms of his probation as charged at that time. The Supreme Court in Gagnon stated that, even when the probationer does not waive his right to counsel, a case involving an admitted probation violation is the very sort of situation in which counsel need not ordinarily be provided. Id. at 791. Rather than immediately proceeding to disposition, as it had done the first time the juvenile admittedly violated his probation, however, the trial court thereafter simply continued the matter for a later date. From the beginning the juvenile understood that he waived counsel in connection with the revocation proceedings. He did not request appointment of counsel at the close of the hearing, in the subsequent letters to the court, or at the continued hearing. A panel of this court previously held, contrary to the argument raised by newly appointed appellate counsel, that the juvenile court is not required to advise a juvenile of his right to counsel at each and every stage of the proceedings. In re East (1995), 105 Ohio App.3d 221, 225. Under the circumstances of this case, we find the juvenile court did not commit reversible error by declining to repeat its statement that defendant had the right to 6 counsel after he had already expressly waived counsel earlier during the probation revocation proceedings. The juvenile's citation to In re Johnson (1995), 106 Ohio App.3d 38, to support his argument to the contrary, is misplaced. A review of the court's opinion in Johnson reveals that the case involved a juvenile's original conviction for a substantive theft offense rather than a probation revocation as in this case. More importantly, however, unlike the case at bar and in East, the juvenile court in Johnson never adequately determined whether the juvenile knowingly, voluntarily, and intelligently waived his right to counsel. As noted above, this case is distinguishable precisely because there is no dispute that the juvenile validly waived his right to counsel under Juv.R. 35(B) at the outset of the probation revocation proceedings. This newly-minted claim of error is particularly weak in this case because the juvenile repeatedly, both in and out of court, admitted to violating the terms of his probation after affirmatively waiving his right to counsel. Compare Gagnon, supra at 791. Accordingly, the juvenile's first assignment of error is overruled. THE TRIAL COURT ERRED IN COMMITTING APPELLANT TO CUSTODY OF ODYS ON A PROBATION VIOLATION WHEN IT WAS WITHOUT JURISDICTION TO DO SO. This assignment lacks merit. The juvenile contends that the juvenile court lacked jurisdiction to revoke his probation because a probation officer 7 had already sent him a letter indicating that he had completed his probation.1 However, the hearing transcript reveals, contrary to this argument, that probation officer Miller stated, although she had prepared papers to terminate the juvenile's probation, she did not process them because he began having problems. The officer specifically stated that the juvenile was not going to school, the police called her concerning him, and he admitted that he had been under the influence of various substances. Even if this court were inclined to indulge this argument, however, we are aware of no authority that a probation officer may terminate a court order placing a juvenile on probation. Rather, the term of probation is fixed by the court consistent with applicable law. See Kurtz and Giannelli, Ohio Juvenile Law (1996- 97 Edition) at Section 7.07(B) pp. 268-269 ( The length of time for which a child is to remain on probation may be fixed at the dispositional hearing or at a later date and may extend until the time the child reaches age 21. ). The court order placing the juvenile on probation continues until it expires by its own terms or is revoked or terminated by order of the court. Revised Code 2151.011(B)(14) specifically recognizes that the juvenile on probation is subject to supervision 1 The letter was not made part of the record in the juvenile court. Appellate counsel filed a motion to supplement the record on appeal with a copy of the letter. We denied this motion by separate journal entry. We note, however, as the following discussion shows, our resolution of this assignment of error does not depend upon whether the letter is included in the record on appeal. 8 by the court-designated agency, but that the juvenile may be returned to the court for violation of probation any time during the court-ordered probationary period. The authority to supervise a juvenile probationer does not include the authority to terminate court-ordered probation. Accordingly, the juvenile's second assignment of error is overruled. Judgment affirmed. 9 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 Juvenile Court Division of 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. BLACKMON, P.J., and DYKE, J., CONCUR. DIANE KARPINSKI 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 .