COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71575 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION MARION BENNETT : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : _______________________ CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-325230 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor By: Randi Marie Ostry, Esq. Assistant Prosecuting Atty. Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Paul Mancino, Jr., Esq. 75 Public Square, #1016 Cleveland, OH 44113 - 2 - ROCCO, J.: Defendant-appellant Marion Bennett appeals from the trial court's judgment entry which found him to be a probation violator and thus ordered his original sentence into execution. Appellant argues the trial court's finding was inadequately supported and the trial court made its determination without considering the probation department's failure to fulfill its responsibility toward him, therefore, his right to due process of law was denied in the proceeding. This court has reviewed the record, finds the trial court afforded appellant a full and fair hearing, and affirms the trial court's decision. The record reflects appellant was originally indicted in this case on a charge of intimidation, in violation of R.C. 2921.04. The indictment also contained a violence specification for a prior conviction for felonious assault. Appellant entered a plea of not guilty to the indictment and was assigned counsel. Following discovery and several pretrials in the case, a plea agreement was arranged whereby appellant would enter a guilty plea to an amended charge, viz., attempted intimidation, a fourth degree felony. The trial court accepted appellant's plea and referred him to the probation department for a presentence investigation and report. On September 13, 1995, the trial court held a hearing and sentenced appellant to a term of incarceration of three to five years. However, it suspended execution of appellant's sentence - 3 - upon the following conditions: (1) appellant was to serve two years' probation; (2) appellant's probation would begin in eighteen months upon the completion of his sentence on another charge; (3) appellant was to submit to regular supervision with counseling; and (4) appellant was to be referred to the court psychiatric clinic for the counseling. Appellant was released from prison in July 1996; however, appellant failed to report for probation until September 4, 1996. At that time, appellant gave a urine sample. The sample ultimately "tested positive for cocaine and marijuana."1 Appellant next reported for probation on October 6, 1996; thereupon, appellant was arrested for violating his probation since the urine sample indicated he had used drugs. Upon his arrest, appellant was again tested for the use of controlled substances. The second test was also positive for cocaine and marijuana. On October 28, 1996, the trial court held a hearing on the matter. Appellant appeared with counsel.2 At the conclusion of the hearing, the trial court found appellant to be a probation violator. The trial court thereupon ordered appellant's original sentence in this case into execution. Appellant timely appeals from the foregoing order. He presents five assignments of error for this court's review, which 1Quoted material is taken from the transcript of appellant's probation revocation hearing. 2Appellant is represented by the same attorney in this appeal. - 4 - will be addressed in logical order. Therefore, appellant's second assignment of error follows. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS FOUND TO BE A PROBATION VIOLATOR FOR AN ACT WHICH DID NOT CONSTITUTE AN OFFENSE. Appellant argues the urine samples which tested positive for controlled substances were an insufficient basis upon which to base the conclusion he violated the conditions of his probation. This argument is unpersuasive. Appellant cites cases in which the state sought to use a positive urine test as circumstantial evidence of a defendant's guilt in a prosecution for drug abuse, R.C. 2925.11. See, e.g., State v. Lowe (1993), 86 Ohio App.3d 749. These cases are completely inapposite, however, since the issue before the trial court herein was whether appellant had violated only the conditions of his probation. Probation is a privilege, not a right, and, as such, it is within the discretion of the trial court to grant or revoke it. State v. Theisin (1957), 167 Ohio St. 119; State v. McKnight (1983), 10 Ohio App.3d 312. An appeals court will not disturb a trial court's ruling if due process requirements were met and the record contains evidence of a substantial nature justifying revocation. State v. Scott (1982), 6 Ohio App.3d 39, 41; State v. McCall (May 16, 1986), Cuyahoga App. No. 51267, unreported; State v. Green (May 19, 1989), Cuyahoga App. No. 55395, unreported. Thus, there is no necessity for proof beyond a reasonable doubt. - 5 - Gagnon v. Scarpelli (1973), 411 U.S. 778, 782; State v. Hylton (1991), 75 Ohio App.3d 778; State v. Scott, supra; State v. Mingua (1975), 42 Ohio App.2d 35. In this case, both appellant and his counsel stated on the record that appellant had a continuing drug problem. The urinalysis demonstrated appellant twice had taken controlled substances prior to reporting. R.C. 2951.02(C) requires an offender to "abide by the law" while on probation. Since appellant's actions were indicative of his intent to pursue activities of a criminal nature without regard for the consequences,the trial court had a sufficient basis upon which to find appellant was a probation violator. State v. McCall, supra. Accordingly, appellant's second assignment of error is overruled. Appellant's first and fifth assignments of error are related; thus, they are addressed together as follows: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE FOUND [sic] DEFENDANT TO BE A PROBATION VIOLATOR BASED UPON THE DISPUTED FACTUAL ISSUE WITHOUT ANY SWORN TESTIMONY BEING PRESENTED. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT FOUND HIM TO BE A PROBATION VIOLATION WHEN NO EVIDENCE OF ANY SORT WAS SUBMITTED. Citing mainly outdated precedent, appellant argues the trial court erred when it relied upon unsworn testimony in making its determination that appellant was a probation violator. Appellant's argument lacks merit. - 6 - First, appellant failed to object to the proceedings on these or any other grounds; hence, he has waived any error for purposes of appeal. State v. Williams (1977), 51 Ohio St.2d 112; Cleveland v. Massaria (June 6, 1991), Cuyahoga App. No. 58651, unreported; State v. Shores (Nov. 4, 1993), Cuyahoga App. Nos. 65176, 65177, 65178, 65179, unreported. Second, there is no requirement of sworn testimony at a probation revocation proceeding. Evid.R. 101(C)(2); Evid.R. 603; State v. Miller (1975), 42 Ohio St.2d 102; State v. McCall, supra; State v. Shores, supra. Third, not only did the probation officer affirm for the trial court that appellant had failed the two urine tests that had been administered, but both appellant and his counsel made admissions that appellant had a "drug problem." All of these statements support the trial court's finding that appellant was a probation violator. State v. Walker (Sep. 25, 1986), Cuyahoga App. No. 51012, unreported; State v. Green (May 18, 1989), Cuyahoga App. No. 55395, unreported; State v. Brown (Oct. 4, 1990), Cuyahoga App. No. 57474, unreported. Accordingly, appellant's first and fifth assignments of error are also overruled. Appellant's third assignment of error states: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS FOUND TO HAVE VIOLATED HIS PROBATION WHEN THE PROBATION DEPARTMENT DID NOT COMPLY WITH THE PRIOR ORDER OF THE COURT. - 7 - Appellant argues he should be excused for his actions because the probation department did not provide him with the counseling ordered as a condition of his probation. This argument is specious. At the probation revocation hearing, the trial court noted the following: The first time he reports to the probation officer, he tests positive for substance abuse. That does not indicate to me that a person with his kind of background is going to be amenable to probation supervision at whatever level; and the fact that Mr. Borden [the Probation Officer] did not have an opportunity to follow through with the Court's conditions has to do with the fact that he only saw your client on two occasions, September, October, and he had to go chasing around for [appellant] to get [appellant] to come in in September, anyway. He was released from the institution in July. (Emphasis added.) As the foregoing demonstrates, the probation department was unable to fulfill its responsibilities due only to appellant's own failure to submit to its supervision. State v. Henderson (1989), 62 Ohio App.3d 848; Statev. Soblotne (May 26, 1983), Cuyahoga App. No. 45645, unreported; State v. Green, supra. Appellant's third assignment of error is, accordingly, overruled. Appellant's fourth assignment of error states: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT USED DEFENDANT'S WAIVER OF PROBABLE CAUSE HEARING AS EVIDENCE OF HIS GUILT. Without citation to the record as required by App.R. 16(A)(3), appellant argues the trial court relied upon his written waiver of probable cause as substantive evidence of his guilt as a probation - 8 - violator. This court cannot countenance this argument since it is unsupported. The record reveals the trial court based its finding upon the statement of the probation officer, the statements of appellant and his counsel, and its own observation of appellant's actions. This was evidence of a substantial nature. State v. McCall, supra. For this reason, appellant's fourth assignment of error is also overruled. The order of the trial court is 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 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. JAMES D. SWEENEY, C.J. and PATRICIA ANN BLACKMON, J. CONCUR JUDGE KENNETH A. ROCCO 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 .