COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70910 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION MICHAEL V. NICKERSON : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 12, 1997 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COURT OF COMMON PLEAS CASE NO. CR-292662 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: L. CHRISTOPHER FREY (#0038964) Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: PAUL MANCINO, JR. (#0015576) 75 Public Square - Suite 1016 Cleveland, Ohio 44113-2098 Also Listed: Michael V. Nickerson #310771 London Corr. Inst. P.O. Box 69 London, Ohio 43140 - 2 - SPELLACY, J.: Defendant-appellant, Michael Nickerson ("appellant"), appeals from his conviction of theft in violation of R.C. 2913.02. Appellant assigns the following errors for our review: I. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS NOT FORMALLY ARRAIGNED BY THE COURT RENDERING HIS PLEA OF GUILTY TO THE INFORMATION UNCONSTITUTIONAL. II DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE ENTERED A PLEA OF GUILTY AND WAS CONVICTED ON AN INDICTMENT BASED UPON A VACATED CONVICTION. III. DEFENDANT'S CONVICTION IS VOID AS HE WAS NOT ARRAIGNED. IV. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS FOUND TO BE A PROBATION VIOLATOR AFTER HIS PROBATION EXPIRED. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. I. Appellant was charged in Case No. CR-269597 with a single count indictment for the offense of aggravated robbery with an aggravated felony specification. As part of a negotiated settlement of the original case, appellant agreed to plead to a charge of theft, with a furthermore clause of a prior robbery conviction, and with a prior violence conviction for felonious assault. The theft charge was to proceed by way of an information. On January 25, 1993, appellant was charged, in Case No. CR-292662, by way of information on the offense of theft in violation of R.C. - 3 - 2913.02 with a violence specification and a furthermore clause. Case No. CR-269597 was then nolled by the trial court. On January 28, 1993, appellant appeared in court with counsel and was arraigned on the charges contained in the information. (Journal Entry, February 12, 1993). During the hearing, the state stated that "[i]n case 292662, the defendant is charged in the information, with a single count indictment with the offense of theft of property or services less than three hundred dollars, with a prior. And a furthermore clause outlying [sic] a prior conviction for the theft offense. And there is also a violence specification as indicted." (Tr. 5). Subsequently, appellant waived, in writing, and in open court, prosecution by the indictment and the trial court informed appellant of his right to trial, to subpoena witnesses to testify on his behalf, to confront all witnesses used against him, to have counsel appointed for him, and to testify on his own behalf. The trial court then asked appellant if there was anything about the case or the proceedings which he did not understand, or that he wished the court to explain more fully. (Tr. 13). Appellant replied, "[n]o, sir", and entered a plea of guilty to theft, R.C. 2913.02, as charged in the information. (Journal Entry, February 12, 1993). On March 11, 1993, appellant was sentenced for a term of two and one-half (2-1/2) years to five (5) years. The trial court, however, suspended appellant's sentence and placed him on one (1) year probation. (Journal Entry, March 11, 1993). - 4 - On July 2, 1993, the trial court issued a capias for appellant. A probation violation hearing was conducted before the trial court on July 7, 1995, and appellant was found to be a probation violator. Subsequently, the trial court modified appellant's original sentence to one and one-half years to five years. (Tr. 4). II. For purposes of this appeal, appellant's first and third assignments of error will be addressed together. In both assignments of error, appellant asserts that his right to due process was violated because he was not arraigned on the information charged. Initially, we note that appellant never objected to the lack of formal arraignment proceedings concerning the information until the matter was on appeal. "An appellate court need not consider an error which a party complaining of the trial court's judgment could have called, but did not call, to the trial court's attention at a time when such error could have been avoided or corrected by the trial court." State v. Williams (1977), 51 Ohio St.2d 112, paragraph one of the syllabus. Thus, when a defendant is represented by counsel, and proceeds to trial without any objection to the failure to arraign, it is presumed that the defendant has waived such rights and may not raise the issue for the first time on appeal. City of Hamilton v. Brown (1981), 1 Ohio App.3d 165, 168. - 5 - Vacating convictions for lack of formal arraignment proceedings is based on the existence of possible prejudice. See Id. at 169-170. Two interests at issue during the arraignment stage are the right to know of the charges and the right to adequately prepare a defense. See Crim.R. 10. In particular, Crim.R. 10 provides: (A) Arraignment Procedure. Arraignment shall be conducted in open court, and shall consist of reading the indictment, information or complaint to the defendant, or stating to him the substance of the charge, and calling him to plead thereto. The defendant may in open court waive the reading of the indictment, information, or complaint. The defendant shall be given a copy of the indictment, information, or complaint, or shall acknowledge receipt thereof, before being called upon to plead. In the case sub judice, the record demonstrates that an arraignment hearing was conducted on January 28, 1993. The transcript of the hearing reveals that the trial court, in open court, instructed appellant as to the substance of the charge against him. Further, the record indicates that appellant signed a written waiver of his right to prosecution by indictment. In this written waiver, appellant stated to the court as follows: Having been advised by the Court of the nature of the charges against me (emphasis added), and my rights under the Constitution, and having been represented by counsel, [I] hereby waive in writing, and in open court, prosecution by the indictment and requesting consent that the charge proceed by way of information instead of indictment. In signing the above waiver, appellant, in essence, acknowledged that the mandates set forth in Crim.R. 10 had been - 6 - satisfied and that he had been informed of the charges brought against him. Thus, appellant has failed to present this court with any evidence as to why he was prejudiced by the lack of formal arraignment. Accordingly, appellant's first and third assignments of error are overruled. III. In his second assignment of error, appellant contends that he was denied due process of law when he entered a plea of guilty and was sentenced on an indictment based upon a vacated conviction. In the present case, the trial court, prior to accepting appellant's guilty plea, stated the following: THE COURT: All right Mr. Nickerson, in Case Number 292662, it is my understanding in this case that you have been charged by way of information with the crime of theft. And because of a prior conviction, it is a felony of the fourth degree, subjecting you to an indefinite sentence. * * * THE COURT: Okay. The charge of theft by information is a fourth degree felony, subjecting you to an indefinite sentence of one, one and one-half, two, two and one-half, to five years and/or a fine of up to twenty- five hundred dollars. It is a probational offense. Do you understand that? MR. NICKERSON: Yes, sir. * * * THE COURT: Is there anything about this case or these proceedings, that you do not understand, or that you wish this Court to explain more fully? MR. NICKERSON: No, sir. - 7 - It must be noted that appellant failed to object to the inclusion of the violence specification in the information. Furthermore, appellant failed to object at sentencing to the trial court's imposition of indefinite sentence, rather than a definite sentence. Therefore, any claim of error is waived unless, but for the error, the outcome of the trial clearly would have been otherwise. State v. Underwood (1983), 3 Ohio St.3d 12. Appel- lant's sentence will be reviewed under Crim.R. 52(B) to determine if plain error is present. The plain error rule is applied only with the utmost caution and invoked under exceptional circumstances in order to prevent a manifest miscarriage of justice. State v. Cooperrider (1983), 4 Ohio St.3d 226. The record in this case indicates that appellant's prior conviction for felonious assault in CR-204675 was vacated by this court and remanded to the trial court for resentencing. See State v. Nickerson (January 18, 1990), Cuyahoga App. No. 56424, unreported. On remand, appellant pled guilty to aggravated assault in violation of R.C. 2903.12. (See Journal Entry, April 4, 1990). R.C. 2901.01(I) classifies aggravated assault as a crime of violence and under R.C. 2941.143 imposition of an indefinite sentence is proper when the offender has previously been convicted or pleaded guilty to an offense of violence. Furthermore, "[s]uch a specification shall be stated at the end of the body of the indictment, count, or information * * * ." R.C. 2941.143. - 8 - In light of the fact that appellant failed to object to the sentence imposed by the trial court and the fact that the information correctly included a violence specification for appellant's prior guilty plea to aggravated assault, appellant's sentence for an indefinite term of years was proper. Accordingly, appellant's second assignment of error is overruled. IV. In his fourth assignment of error, appellant contends he was denied due process of law when he was found to be a probation violator after his probation period had expired. In the present case, appellant was placed on one year's probation on February 26, 1993. On July 2, 1993, a capias was issued by the trial court for appellant's failure to report to the probation office. The record before this court fails to disclose whether the probation officer knew appellant's whereabouts after the capias was issued. On July 21, 1995, after appellant had been arrested, he was found to be a probation violator and his original sentence was modified and re-instituted. Initially, we will address whether the trial court had jurisdiction to modify appellant's sentence nearly one and one- half years after appellant's probational period had expired. R.C. 2951.07 states, in pertinent part, the following: Probation under section 2951.02 of the Revised Code continues for the period that the judge or magistrate determines * * * . If the probationer absconds or otherwise absents himself from the jurisdiction of the court without permission * * * the probation period - 9 - ceases to run until such time as he is brought before the court for its further action. The Ohio Supreme Court in In re Townsend (1990), 51 Ohio St.3d 136, determined that the word "absconds" as used R.C. 2951.07 "can include a probationer who willfully fails to report to his probation officer even though he may have remained within the territorial jurisdiction of the trial court." Thus, the trial court retains jurisdiction, even after the full probationary period has ceased to run, over a defendant who frustrates the trial court's supervision of his probation, irrespective of where the probationer absconds. Id. Crim.R. 32.3 (A) provides: Revocation hearing. The court shall not revoke probation except after a hearing at which the defendant shall be present and apprised of the grounds on which such action is proposed. The defendant may be admitted to bail pending such hearing. In the case sub judice, the trial court complied with the mandates set forth in Crim.R. 32.3(A). A probation revocation hearing was held in the appellant's presence on July 7, 1995. At the time of the hearing, the trial court stated that a capias had been issued for appellant in May of 1993. The trial court further stated that appellant was currently being held in the county jail for failure to report and failure to pay the court costs. (Tr. 3). Consequently, the trial court determined that appellant was a probation violator. - 10 - Given the holding in Townsend, and the fact that the trial court's probation revocation hearing conformed with Crim.R. 32.3 (A), we find that the trial court did not abuse its discretion by modifying and re-imposing appellant's original sentence. Accord- ingly, appellant's fourth assignment of error is overruled. Judgment affirmed. - 11 - 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. JOSEPH J. NAHRA, P.J. and DIANE KARPINSKI, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This 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(B) 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 .