COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71121 IN RE: CLARENCE BENNETT, : A MINOR : : : : JOURNAL ENTRY : AND : OPINION : : DATE OF ANNOUNCEMENT : JUNE 12, 1997 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from : Juvenile Court Division of : Court of Common Pleas : Case No. 9415962 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. JAMES A. DRAPER, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public NORMAN E. INCZE, ESQ. Defender Assistant County Prosecutor DONALD GREEN, ESQ. 8th Floor Justice Center Assistant Public Defender 1200 Ontario Street The Marion Bldg., #307 Cleveland, OH 44113 1276 West Third Street Cleveland, OH 44113-1569 - 2 - PATTON, J., The juvenile court adjudged juvenile-appellant Clarence Bennett delinquent on a charge of possessing an unloaded handgun on school property. The court placed appellant on probation, subject to nine different conditions. Upon learning that appellant might have violated some of these conditions, it summoned him to a probation revocation hearing. Appellant waived his right to counsel and admitted the probation violations. The court ordered that appellant be institutionalized for an indefinite period. In this appeal, appellant raises three complaints about the probation revocation procedure. I Appellant first complains that the juvenile court improperly persuaded him to forfeit his right to counsel. He argues that he initially indicated a desire to obtain counsel, but despite that indication, the court proceeded to cross-examine him to the point where a trial on the probation revocation would have been futile. Appellant's argument suffers from a selective recitation of facts. After outlining the nature of the alleged probation violations, the court proceeded to inform appellant of his rights, including the right to counsel. Appellant told the court he wished to have counsel appointed, and the court agreed. At that point, the court stated to the probation officer: "Well, why don't you tell me a little bit about how Clarence has been doing here so I can make a decision where he resides until we come back to trial on this decision." - 3 - The probation officer detailed the alleged probation violations, which included testing positive for marijuana and alcohol, trespassing, fighting, and violation electronic monitoring. Appellant continued to deny the charges. The court stated: "All right, well, listen. You want your trial. You have your right to trial. We'll come back and we'll do that. In the meantime, you're going to be held in the detention center. Because the report that I had is certainly not suggestive that I should trust you back out on the streets. This is on a felony of the fourth. We need a remand slip. And then we'll pick a date for coming back into trial. MASTER BENNETT: Can I change my plea? THE COURT: Well, you can. You want to change it to an admission? MASTER BENNETT: An admission? THE COURT: Yeah. You're admitting that this is now true? MASTER BENNETT: Some of it is, some of it ain't. The court only inquired about the nature of the alleged probation violations in order to determine whether it should release appellant or keep him in custody. In fact, after hearing appellant admit some of the alleged violations, the court again asked appellant if he wished to waive counsel. Appellant indicated his desire to waive counsel and the court again reread appellant his rights. We find no impropriety and overrule the first assignment of error. - 4 - II Defendant's second argument is that the juvenile court denied him the privilege against self-incrimination by failing to inform him of the right to remain silent and by continuing to question him even after he requested counsel. The state argues that the rights applicable to an adjudicatory hearing under Juv.R. 29 do not apply to probation revocation proceedings under Juv.R. 35(B). Juv.R. 29 standards for entering admissions do not apply to probation revocation proceedings under Juv.R. 35(B). See In re Motley (1996), 110 Ohio App.3d 641; In re Griffin (Sept. 27, 1996), Union App. No. 14-96-14, unreported. This district has not ruled on this precise issue, but we agree with those courts that find Juv.R. 29 procedures for entering admissions do not apply to probation revocation proceedings under Juv.R. 35(B). A probation revocation proceeding is not a criminal proceeding. Gagnon v. Scarpelli (1973), 411 U.S. 778, 782; State ex rel. Wright v. Ohio Adult Parole Auth. (1996), 75 Ohio St.3d 82, 92. There is no right to a jury trial before probation may be revoked, and the privilege against self-incrimination is not available to a probationer. Minnesota v. Murphy (1984), 465 U.S. 420, 435, fn. 7. Grafting the requirements of Juv.R. 29 onto probation revocation proceedings would improperly elevate those proceedings to the status of a criminal proceeding. Consequently, we find the juvenile court had no duty to apprise appellant of a - 5 - right to remain silent and his privilege against self- incrimination. Juv.R. 35(B) states: Revocation of Probation. 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 only right specifically set forth in Juv.R. 35(B) is the right to counsel, and the juvenile court fully apprised appellant of that right. The second assignment of error is overruled. III In his final assignment of error, appellant complains the juvenile court erred by entering a general admission to the probation revocation without first considering that appellant misunderstood the substance of the violations. We have no difficulty rejecting this argument. The transcript shows that rather than misunderstanding the court's questions, appellant engaged in impertinent behavior in his dialogue with the court. For example, appellant steadfastly denied having run away from home for three days. Upon questioning by the court, appellant admitted he ran away for a week, apparently thinking that it was the number of days, not the act itself, that mattered. He further admitted missing some days of school, but said that he had - 6 - regularly attended school, under the assumption that going to the school grounds was the same thing as attending classes. Appellant denied missing any scheduled appointments with his probation officer, but admitted he only attended those appointments when the probation officer specifically called to confirm the appointments. The record does not demonstrate that appellant misunderstood the nature of the alleged probation violations. The juvenile court accurately told appellant he was being "too cute by half" in trying to justify his lies to the court. We cannot find appellant's impudent behavior amounted to evidence that he misunderstood the nature of the alleged probation violations. The juvenile court fully explained the nature of the alleged violations before accepting appellant's admission to those violations. This fully satisfied Juv.R. 35(B). The third assignment of error is overruled. Judgment affirmed. - 7 - 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 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. NAHRA, P.J. ROCCO, 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 .