COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71045 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION MARVIN RATLIFF : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 8, 1997 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-309,951 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor DIANE SMILANICK, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: PAUL MANCINO Attorney at Law 75 Public Square, #1016 Cleveland, OH 44113-2098 TIMOTHY E. McMONAGLE, J.: This is an appeal from the judgments of the Cuyahoga County Common Pleas Court in which appellant Marvin Ratliff was convicted of felonious assault on August 23, 1994, and his probation revoked on September 13, 1995. In support of his appeal, appellant sets forth the following assignments of error: ASSIGNMENT OF ERROR NO. I DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT DID NOT INFORM THE DEFENDANT THAT ANY SENTENCE IMPOSED WOULD HAVE TO BE SERVED CONSECUTIVELY BECAUSE DEFENDANT WOULD BE A PROBATION VIOLATOR. ASSIGNMENT OF ERROR NO. II DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HIS PLEA OF NO-CONTEST WAS ENTERED IN CIRCUM- STANCES SHOWING THAT DEFENDANT DID NOT HAVE A FULL AND COMPLETE UNDERSTANDING OF THE PRO- CEEDINGS. ASSIGNMENT OF ERROR NO. III DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT DID NOT PROPERLY INFORM THE DEFEN- DANT CONCERNING THE EFFECT OF A NO-CONTEST PLEA. ASSIGNMENT OF ERROR NO. IV DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT MADE A FINDING ON A DISPUTED FAC-TU- AL ISSUE WITHOUT BEING FORWARD SWORN TESTI- MONY. [SIC] - 3 - ASSIGNMENT OF ERROR NO. V DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT CONDUCTED A PROBATION REVOCATION HEARING WITHOUT A PRIOR PROBABLE CAUSE HEAR- ING. ASSIGNMENT OF ERROR NO. VI DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT HIS PROBATION REVOCATION HEAR- ING. The record reflects that Marvin Ratliff was indicted on May 24, 1994, in a one-count indictment charging felonious assault, R.C. 2903.11, with a violence specification. He entered a plea of not guilty at his arraignment. On August 23, 1994, he withdrew his not guilty plea and entered his plea of no contest. At the hearing, the court conducted a colloquy with Ratliff in which he acknowledged being on probation for two previous offenses and the court enumerated for him the rights that he waived, which he stated he understood. The court then informed him that the potential sentences for the crime of felonious assault were three, four, five, six, seven or eight to fifteen years and a fine of $7,500, to which appellant replied that he understood. The court found Ratliff guilty of felonious assault with the violence specification as charged in the indictment. On September 13, 1994, Ratliff was sentenced to a term of six to fifteen years and fined $5,000 on the felonious assault charge. The court also found Ratliff to be a probation violator. His original two six-month concurrent terms - 4 - were ordered to be served consecutive to the imposed six- to fifteen-year sentence. On June 2, 1995, Ratliff filed a motion for shock probation, which was granted by the trial court on July 28, 1995, wherein his sentence was suspended as provided by R.C. 2947.061 and he was placed on supervised probation for two years, the conditions of which included regular urinalysis, restitution to the victim, community service work, payment of court costs, and maintenance of full-time employment. A capias was issued for Ratliff on June 10, 1996. On July 14, the capias was withdrawn as Ratliff was in custody. On July 15, a hearing on an alleged probation violation was held before the trial court. Testimony was received from a probation officer through a written report generated by an ISP (Intensive Special Probation) intern who was no longer with the office. The probation officer testified that Ratliff tested positive for the use of cocaine on May 29, 1996, and that he had failed to report on three occasions in the past five months. Ratliff told the court that on the occasions he failed to report, he had called in and was advised by his ISP intern to report the following week. The testimony of the probation officer, Isom, indicated that Ratliff properly reported to him on June 18, June 25, July 2, and July 9. Ratliff testified that he did not use alcohol or drugs and that the only explanation for a positive urine test on May 29 could have been from a cigarette given to him at a party, possibly laced with cocaine - 5 - without his knowledge. The court found Ratliff to be a probation violator for the positive testing of cocaine. His original sentence was imposed and ordered into execution. On July 26, 1996, Ratliff moved the court for bond pending appeal, which was denied. Defendant Ratliff's motion for delayed appeal was granted by this court, and he brings six assignments of error for our review. Appellant, in his first three assignments of error, alleges that he was denied due process of law when, on August 23, 1994, he pled no contest to the charge of felonious assault with a violence specification as charged in the indictment. Specifically, appel- lant argues that: 1) he was not informed that any sentence imposed would have to be served consecutively because of his status as a probation violator; 2) he did not have a full and complete under- standing of the proceedings when he pled no contest; and, 3) the court did not properly inform him of the effect of a no contest plea. Crim.R. 11 governs the acceptance of a no contest plea by a defendant and states in pertinent part: (C)(2) In felony cases the court may refuse to accept a plea of guilty or 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 of the charge and of the max- imum 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 - 6 - 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. The standard for determining whether a trial court properly accepts a plea is whether the court substantially complied with 1 Crim.R. 11. "A defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently or voluntarily made 2 must show prejudicial effect." Appellant argues that the court should have informed him that he could be sentenced to consecutive sentences because he was already on probation for two cases. The trial court substantially complied with Crim.R. 11(C) without discussing with the defendant the relationship between the 3 maximum sentence applicable and other sentences or consequences. Where, as here, a court properly informs an appellant of the maximum sentence for the crime to which the appellant is pleading, there is no error to be found in the trial court's acceptance of 1 State v. Stewart (1977), 51 Ohio St.2d 86. 2 State v. Nero (1990), 56 Ohio St.3d 106. 3 State v. Gibson (1986), 34 Ohio App.3d 146, 148. - 7 - the plea without an explanation of the consequences of prior convictions. Appellant argues that he did not possess the clarity of mind and body that would allow his plea to be entered properly. Spe- cifically, the appellant, in his argument, relies solely on the comments of the court that addressed his appearance as follows: He looks bad. He looks disheveled. He looks like somebody's [sic] who's been using or abus- ing drugs and alcohol, just doesn't look good. And from what I've heard and what I've seen of the facts, he's now standing in a different position, and he's already on probation. so we are going to remand him. Despite the remarks of the court, the record reflects that the appellant told the court that he was not under the influence of drugs or alcohol at the time of the hearing. Further, appellant does not even assert on appeal that he was under the influence of alcohol or drugs at the time of the hearing, rendering him incapable of understanding the proceedings. The record reflects that appellant responded upon questioning that he understood the plea proceedings; consequently, there was no error by the trial court in its acceptance of a no contest plea where the record reflects it was knowingly, intelligently and voluntarily entered. Finally, appellant argues that the trial court did not prop- erly inform him of the effect of a no contest plea because the court failed to inform him that "no contest" is not an admission of guilt but an admission of the truth of the facts alleged in the indictment. Appellant contends that this failure of the court - 8 - deprived his plea of being knowingly and voluntarily made. Appel- lant's argument is without merit. The record reflects that appel- lant stipulated to the finding of guilt on the factual basis presented to the court; therefore, from the record before us, there is no error in the trial court's acceptance of the appellant's plea of no contest. Accordingly, upon review of the record and the law as set forth above, this court finds that the trial court personally addressed appellant as to his entering of a plea of no contest and the consequences thereof. We find that under the totality of the circumstances, appellant's no contest plea to the charge of felo- nious assault was knowingly, intelligently and voluntarily entered and the trial court substantially complied with Crim.R. 11(C); therefore, appellant's first, second and third assignments of error are not well taken. In his fourth and fifth assignments of error, appellant argues that his due process rights were violated by errors of the trial court during his probation revocation proceedings. Specifically, appellant argues that the revocation hearing was held without a prior probable cause hearing and, further, that the court made a finding on a disputed factual issue, his cocaine use, without bringing forward sworn testimony. The record reflects that appellant was represented by counsel at the hearing and no objections were made. - 9 - 4 In Gagnon v. Scarpelli, the Supreme Court held, at 782, that probationers are "entitled to a preliminary and final revocation hearing as described in Morrissey v. Brewer." The Gagnon court, at p. 786, set out the requirements of due process as applied to a probation revocation hearing, which include: (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 confront and cross-examine adverse witness (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a "neutral and detached" hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation or] parole. Morrissey v. Brewer, supra at 489. Crim.R. 32.3 mandates that a court shall not revoke probation except after a hearing at which the defendant shall be present and apprised of the ground on which such action is proposed. The Gagnon-Morrissey holdings mandate that a defendant charged with a probation violation is entitled to two hearings. The preliminary hearing is "to determine whether there is probable cause or rea- sonable ground to believe that the arrested *** [probationer] has committed acts that would constitute a violation of *** [proba- 5 tion] conditions." 4 Gagnon v. Scarpelli (1973), 411 U.S. 778. 5 Morrissey v. Brewer (1972), 408 U.S. 471, at 485. - 10 - The dual purpose of the Morrissey-Gagnon preliminary hearing is to prevent the incarceration of a probationer without probable cause and to allow independent review of the charges against him 6 "while information is fresh and sources are available." However, 7 the court in State v. Miller determined that the judgment of a trial court revoking probation may not be reversed where two separate hearings have not been held as contemplated by Morrissey v. Brewer unless it appears in the record that the appellant has been prejudiced by the want of the preliminary hearing. Further, the Delaney court held that where an appellant was not prejudiced by the lack of a preliminary hearing, then one hearing alone may be sufficient. A review of the record before us demonstrates that the proba- tion revocation hearing was held one day after the arrest of the appellant. Further, appellant makes no showing of prejudice to this court; therefore, we find that although a technical error may have occurred, the appellant has not been prejudiced by the fail- ure of the trial court to conduct a preliminary probable cause hearing. Accordingly, we find that the appellant's fifth assign- ment of error has no merit. Appellant argues in his fourth assigned error that his due process rights were denied because the trial court did not hear sworn testimony that the appellant tested positive for cocaine. 6 State v. Delaney (1094), 11 Ohio St.3d 231, at 233. 7 State v. Miller (1975), 45 Ohio App.2d 301. - 11 - A defendant at a probation revocation hearing need not be afforded the full panoply of rights due a defendant in criminal proceed- 8 ings. The rules of evidence do not apply to probation revocation 9 hearings. It is a denial of due process to allow the hearsay testimony of a probation department supervisor to testify exclu- sively from notes made by another probation officer without estab- lishing any foundation for such testimony and absent evidence that 10 the other probation officer is unavailable. Where a representa- tive of the probation department is present and available for examination, defendant is represented by counsel, and the court provides the defendant with the adequate mechanism for controvert- ing the validity of the facts alleged, then the court's failure to take sworn testimony does not render the revocation hearing so informal that the defendant is deprived of his right to due 11 process. The record reflects that appellant was present and repre- sented by counsel. Appellant failed to object at the hearing and 12 therefore waived his right to raise the issue on appeal. Never- theless, the record demonstrates that the intern who supervised the 8 Morrissey v. Brewer, supra. 9 Ohio Rules of Evidence 101(c)(3). 10 State v. Miller (1975), 42 Ohio St.2d 102; Columbus v. Lacy (1988), 46 Ohio App.3d 161. 11 State v. Fry (Apr. 23, 1981) Cuyahoga App. No. 42975, unreported. 12 State v. Williams (1977), 51 Ohio St.2d 112. - 12 - appellant during this period of his probation was no longer with the probation department and was not, therefore, available to testify. Further, the record reflects that the court found the appellant to be a probation violator for the singular reason of a positive testing of cocaine on May 29, 1996. Appellant had the opportunity to defend against the claim of cocaine use and to confront and cross-examine the probation officer who presented his positive test result to the court. Accordingly, we find no error in the acceptance of unsworn testimony in the revocation of the appellant's probation where the probation officer was unavailable to testify, the sole reason for the revocation was the appellant's cocaine use as verified by his test result, and there was no denial of his right to cross-examine and confront the witness. Appellant, in his sixth assigned error, argues that he was denied effective assistance of counsel. Specifically, appellant argues that his counsel failed to: 1) object to going forward absent a probable cause hearing; 2) examine the probation officer who testified; and 3) object to the hearsay testimony as to the test result. To prevail on a claim of ineffective assistance of counsel, appellant must show that counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having a just result. This standard requires appellant to satisfy a two-part test. First, appellant must show that counsel's representation fell below an objective standard of - 13 - reasonableness. Second, appellant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different when considering 13 the totality of the evidence that was before the court. This test is applied in the context of Ohio law that states that a 14 properly licensed attorney is presumed competent. In accordance with our determination of appellant's assigned error number five, we find no error existed in counsel's failure to object to the revocation hearing being held without a prior probable cause hearing where the revocation hearing was held merely one day after his arrest and no claim of prejudice can be shown. Upon review of the record, we can see no error in counsel's failure to cross-examine the probation officer where the only violation of probation addressed by the court was the positive drug test result. Finally, we find no deficiency in counsel's failure to object to the test results as presented by the probation officer because he was properly permitted to present the evidence at the hearing due to the unavailability of the officer who prepared the report. A review of the record fails to disclose that the performance of appellant's counsel was seriously flawed and deficient, result- ing in prejudice to the appellant. Accordingly, we find appellant's sixth assignment of error to have no merit and the judgment of the trial court is affirmed. 13 Strickland v. Washington (1984), 466 U.S. 668. 14 State v. Hamblin (1988), 37 Ohio St.3d 153. - 14 - 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 Cuyahoga County 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. PATRICIA BLACKMON, P.J. and DIANE KARPINSKI, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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 .