COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70984 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION LAWRENCE ROSE : : Defendant-appellant : : DATE OF ANNOUNCEMENT : MARCH 20, 1997 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-314529 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. PAUL MANCINO, JR, ESQ. Cuyahoga County Prosecutor 75 Public Square, Suite 1016 ARTHUR A. ELKINS, ESQ. Cleveland, OH 44113-2098 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, OH 44113 - 2 - PATTON, J. Defendant-appellant, Lawrence Rose ("defendant"), appeals the order of the trial court finding him to be a probation violator and imposing a three (3) to fifteen (15) year term of incarceration. On October 3, 1994 defendant was indicted for felonious assault in violation of R.C. 2903.11, with a violence specification. On March 31, 1995 defendant withdrew his previously entered plea of not guilty and pleaded guilty to the indictment, without the violence specification. At this time, defendant was referred to the probation department for a pre-sentence investigation and report. On May 12, 1995 defendant was sentenced to a term of imprison- ment of three to fifteen years. The court then suspended execution of the sentence and placed him on probation for one year subject to the following conditions: pay court costs or perform 40 hours of court work service, obtain employment, submit to random drug testing, and have no contact with the victim. The trial court subsequently received defendant's probation status report and extended his probation another year because he was named a defendant in another criminal case and had previously signed a waiver of extension of probation. On June 27, 1996 the trial court held a hearing and heard the testimony of a probation officer and defendant. The court found defendant to be a probation violator and ordered his sentence into execution. Defendant's first assignment of error states as follows: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT EXTENDED DEFENDANT'S PROBATION WITH- - 3 - OUT HIS PRESENCE OR BEING NOTIFIED WITHOUT GIVING ANY REASON. Defendant argues he was denied his constitutional right to due process because his probation was extended by the trial court with- out notification or his presence. The state maintains the trial court has the discretion to extend probation and based on the evidence before it the trial court had a rational basis for extending defendant's probation. A defendant's probation may be extended as provided in R.C. 2951.07: "Probation under section 2951.02 of the Revised Code continues for the period that the judge or magistrate determines and, subject to division (F)(1)(a) of that section, may be extended. Except as provided in division (F)(1)(a) of that section, the total period of probation shall not exceed five years" (emphasis added). "The due process procedures required in probation revocation hearings need not be strictly complied with in cases involving extensions or modifications, especially extensions that confine the total period of probation to a term of less than the five years, the allowable time for a probation period under R.C. 2951.07." State v. Zeiszler (1984), 19 Ohio App.3d 138. See also State v. Vlahopoulos (August 31, 1995), Cuyahoga App. No. 68436, unreported. This court previously considered this issue in State v. Tresville (February 6, 1975), Cuyahoga App. Nos. 33625 and 33626, unreported, where we cited to In Re Reed (1969), 21 Ohio App.2d 1, - 4 - and held "[p]robation is not a matter of right for a convicted felon; it is by law a matter of discretion for the trial judge." In Tresville, the court went on to hold a trial court, at its own discretion, may extend probation ex parte without applying due process considerations but must have a rational basis for doing so. The court then decided the failure to pay court costs was a sufficient rational basis to extend probation. More recently in State v. Criss (1988), 55 Ohio App.3d 238, we again held probation may be extended without a hearing and it is no abuse of discretion when the court extends probation for nonpayment of court costs. In the present case, the trial court suspended defendant's sentence and imposed a one year term of probation. The trial court then extended defendant's probation, sua sponte, for an additional year. Defendant was then subpoenaed to appear for an alleged probation violation. At the hearing, defendant's attorney protested the extension of probation and a probation officer disclosed that defendant signed a waiver of hearing for probation: MR. MANCINO: - - I'm unfamiliar with and, you know, unable to respond to it. I mean the question I had is about the extension of the probation. Apparently from what I see he was not present in Court. All the Court journal entry says Court reviewed a status report, extended it. But he wasn't here, I wasn't notified or anything. THE COURT: Let the record reflect that I was not the judge in -- MR. MANCINO: No, it was Judge Mahon. - 5 - MR. BECK: Can I explain? THE COURT: Yes, go ahead. MR. BECK: I'm sorry. Normal procedures are not to have a probation hearing for any reason for any extension. What happened is we have a waiver of extension signed by Mr. Rose to extend his probation for a period of one year because he has a new case pending. This is a common practice, it is law. And it was honored by Judge Mahon and this is what we have. THE COURT: Let the record reflect that there is this waiver of hearing from probation extension signed by Mr. Rose. Is this your signature, Mr. Rose? Would you please verify this for me, Mr. Mancino, ask him if that is in fact his signature. MR. MANCINO: Apparently it is, but I don't know how these come about. Although the extension itself is not in the record, defendant does not protest he signed the waiver and it is clear from the above exchange that he in fact did sign the waiver. Therefore, defendant's extension was based on the fact that he was named a defendant in another case and a hearing on the extension was precluded by his execution of the waiver. It is well established that the granting of probation is not a right but a privilege. A waiver is "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst (1938), 304 U.S. 458, 464. In addition, any constitutional right may be waived but such a waiver must be knowingly, intelligently and voluntarily accomplished. Brookhart v. Janis (1966), 384 U.S. 1, 4. Neither Defendant nor his attorney protested at the hearing - 6 - or now that defendant did not knowingly sign the waiver. The record reveals the trial court instructed defendant's attorney to show defendant the waiver to acknowledge his signature. Defend- ant's attorney then showed defendant the waiver and informed the trial court that the signature on the waiver was defendant's. Thus, defendant knowingly waived his right to a hearing regarding his probation extension. In State v. Jones (1978), 60 Ohio App.2d 178, a case similar to the present case, the defendant's probation was extended because he failed to pay costs and failed to report to his probation officer. The trial court extended the period of probation based on these problems and did not notify defendant or hold a hearing because defendant signed a form agreeing to the extension. The appellate court held defendant's due process rights were not violated and stated "[t]he due process procedures required in probation revocation hearings need not be employed in court actions which extend the time one must remain on probation." See also Forgues v. United States (6th Cir. 1980), 636 F.2d 1125; State v. Smith (March 18, 1981), Hamilton App. No. C-800171, unreported. Based on the foregoing, we hold that defendant's due process rights were not violated by the extension of his probation because defendant waived his right to a hearing on the matter when he earlier signed a waiver. Thus, defendant's first assignment of error is overruled. Defendant's second assignment of error states as follows: - 7 - DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT MADE FINDING ON A DISPUTED FACTUAL ISSUE WITHOUT HEARING SWORN TESTIMONY. Defendant argues the trial court did not hear sworn evidence or testimony concerning defendant's testing positive for cocaine. He claims his due process rights were violated because the only evidence supporting the positive drug test is the unsworn testimony of the probation officer, and such testimony is insufficient to allow the trial court to make a finding on such a disputed issue. The state counters by arguing defendant did not object to the alleged unsworn testimony at the hearing so any error raised now concerning this matter is waived. Substantively, the state maintains probationary hearings are informal and a defendant does not have to be afforded the full panoply of due process rights given a defendant at a criminal trial. Thus, defendant's due process rights were not violated by the admission of the probation officer's testimony. In the present case defendant did not object to the unsworn testimony of the probation officer and did not object to the introduction of the positive drug test. He, therefore, waives any error regarding the trial court's determination on this issue. State v. Williams (1977), 51 Ohio St.2d 112. However, defendant's argument would fail even if he properly objected to the evidence and testimony presented at the hearing. A probation revocation hearing is not a criminal trial but is "an informal hearing structured to assure that the finding of a - 8 - ***[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." State v. Hylton (1991), 75 Ohio App.3d 778, 781, quoting Morrissey v. Brewer (1972), 408 U.S. 471. Furthermore, the rules of evidence do not apply to probation revocation proceedings. Evid.R. 101(C)(3). The due process rights which must be observed in probation revocation hearing are: "* * * (a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to con- front and cross-examine adverse witnesses; (e) a `neutral and detached' hearing body * * *; and (f) a written statement by the factfinders as to the evidence relied upon and reasons for revoking [probation or] parole. * * *" Gagnon v. Scarpelli (1973), 411 U.S. 778, 786. In the present case, all of these due process requirements were met. Although the probation officer's testimony regarding the positive drug test was allegedly unsworn, defendant had the opportunity to cross-examine the officer and present evidence and testimony on his own behalf. He did not do this. The trial court thus had sufficient evidence to find that defendant violated his probation. Defendant's second assignment of error is overruled. Defendant's third assignment of error states as follows: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT CONDUCTED A PROBATION REVOCATION HEARING WITHOUT A PROBABLE CAUSE HEARING. - 9 - Defendant argues his due process rights were violated because he was not given a probable cause hearing. The state argues defendant's due process rights were not violated because he was provided the due process rights defendants are entitled to at probation revocation hearings. This exact issue was addressed by the court in State v. Delaney (1984), 11 Ohio St.3d 231. In Delaney, the defendant was not accorded a preliminary hearing but instead had a single evidentiary hearing at which time the state presented its case against him. Defendant's probation was subsequently revoked and on appeal the appellate court affirmed the judgment of the trial court holding defendant was not prejudiced by the lack of a preliminary hearing. Defendant then appealed to the Ohio Supreme Court which stated "the dual purpose of the Morrissey-Gagnon preliminary hearing, *** is to prevent incarceration of a probationer without probable cause and to allow independent review of the charges against him `while information is fresh and sources are available.'" Id. at 233. The Court concluded by holding unless a defendant can show prejudice because information was no longer "fresh" or sources were no longer "available" for a defense at the time of the final revocation hearing then a preliminary hearing is not mandatory. In the present case defendant was not incarcerated until after the evidentiary hearing and he alleged no prejudice before the - 10 - trial court or now resulting from not having a preliminary hearing. Therefore, defendant's third assignment of error is overruled. Defendant's fourth assignment of error states as follows: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS FOUND TO BE A PROBATION VIOLATOR. Defendant argues it was not proven beyond a reasonable doubt that he was a probation violator. He claims his probation obli- gation to pay court costs via community service was not a specific condition of probation so not performing the community service could not be a violation of probation. Also, defendant claims there was no proof presented that defendant tested positive for cocaine so this could not be evidence that he violated his pro- bation. The state maintains all it has to prove is that there is substantial evidence that defendant violated his probation. At the evidentiary hearing testimony revealed that defendant tested positive for cocaine, had not paid court costs or completed his community service, and had been indicted in two other cases. The state argues this is substantial evidence that defendant violated his probation. In probation revocation hearings there is a lesser burden of proof placed on the state than in a criminal trial. The quantum of evidence required to support a probation revocation must be substantial in nature. Hylton, supra. - 11 - At the hearing, the probation officer testified defendant tested positive for cocaine and also missed another drug testing appointment. The officer also stated that as a condition of his probation defendant was supposed to either pay court costs or perform community service. As of the hearing defendant had not paid court costs and had only completed 1.75 of the necessary 36 hours of community service. In addition, defendant had been indicted in two other cases; for drug abuse and drug trafficking and for receiving stolen property. Defendant offered little rebuttal evidence at the hearing to offset the testimony of the probation officer. He did not respond to testing positive for drugs and said that he missed the drug testing appointment because he could not get out of work. We hold the evidence presented at trial was substantial in nature and overrule defendant's fourth assignment of error. Judgment affirmed. - 12 - 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. JAMES D. SWEENEY, C.J. TIMOTHY E. MCMONAGLE, J., CONCUR. JUDGE JOHN T. PATTON 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 .