COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72742 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION MAX STARCIC : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 4, 1998 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-325,839 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor RICHARD A. BELL, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: PAUL MANCINO, JR. Attorney at Law 75 Public Square, #1016 Cleveland, Ohio 44113-2098 KENNETH A. ROCCO, J.: -2- Defendant-appellant Max Starcic appeals from the trial court's judgment entry that found him to be a probation violator and thus ordered his original sentence into execution. Appellant argues the trial court lacked jurisdiction to issue the order and erred in refusing to permit independent testing of substances appellant alleged caused false positive urinalysis results for cocaine, and further argues that the trial court's finding was neither ade- quately articulated nor supported. This court has reviewed the record, finds the trial court's actions were appropriate, and therefore affirms its decision. The record reflects that appellant was originally indicted in this case on July 13, 1995 on a charge of possession of cocaine, in violation of R.C. 2925.11(A). The indictment also contained a specification that the offense was committed either within one hun- dred feet or within the view of a juvenile. On July 27, 1995, a capias was issued for appellant. The capias eventually was recalled on October 16, 1995 when appellant appeared with counsel for his arraignment. Appellant entered a plea of not guilty to the charge. The record reflects several pretrials subsequently were held in the case; appellant failed to appear at the second scheduled pretrial. Ultimately, on November 15, 1995 a plea agreement was arranged whereby appellant would enter a guilty plea to an amended charge, viz, attempted possession of cocaine with the specification deleted, a first-degree misdemeanor. The trial court accepted appellant's plea, sentenced appellant to a term of incarceration of -3- six months, and ordered him to pay court costs and a fine of $1000.00. However, the trial court suspended execution of appel- lant's sentence upon the following conditions: 1) appellant was to serve one year of probation; 2) appellant was to submit to regular and random urinalysis; 3) appellant was to maintain full-time school or employment; and 4) appellant was to pay court costs and a $100 probation supervision fee. On October 22, 1996 the trial court issued a journal entry setting a probation violation hearing for November 1, 1996; the hearing proceeded as scheduled. At the outset of the hearing, appellant's probation officer stated the basis for it as follows: MR. JEFFERS: * * * On April 15th, 1996, the defendant tested positive for cocaine and the Court was informed of the first positive status report. On October 3rd, 1996, the defendant again tested positive for cocaine. The trial court requested an elucidation from appellant concerning the foregoing urinalysis results. When appellant explained, I was ill and I was taking some medications, the trial court stated: COURT: Well, you tested positive for co- caine, not something else. So, the only possibilities are that you were using and you are not telling us the truth or that there is a mistake. You were tested in April. When I was notified, I advised the Proba- tion Department that I would not schedule a hearing, not violate your -4- probation at that point, but I did tell the Probation Department if you tested positive again, you would have to come in here for a hearing and explain the problem. So, now, you have tested positive twice, and you are telling me that on both occasions you were taking medication? DEFENDANT: Yes, sir. In view of the appellant's assertion that the urinalysis results were wrong, the trial court issued a journal entry continuing the hearing in order that appellant's October 3, 1996 urinalysis be [re-]tested by [the] coroner's lab at state expense. The record reflects the trial court received the re-test results on December 5, 1996. It therefore issued a journal entry indicating appellant's November 1, 1996 probation violation hearing would be concluded on December 11, 1996. On December 11, 1996, at the end of appellant's probation violation hearing, the trial court found appellant to be a pro- bation violator. The trial court thereupon ordered appellant's probation extended until April, 1997. The order also stated appellant now was to be tested for drugs weekly. Appellant filed no appeal in this court from the trial court's order. On March 10, 1997 the trial court issued a journal entry setting a new probation violation hearing for March 18, 1997. The hearing proceeded as scheduled. Thereafter, the trial court issued a journal entry stating as follows: -5- Defendant tested positive for cocaine. Defen- dant submitted to the court substances which he claimed he took and made lab results test positive for cocaine. Court will submit sub- stances to the lab to be analized (sic.) at state's expense. Defendant's probation ex- tended for 60 days. Probation violation hear- ing re-scheduled after court receives test results. (Emphasis added.) On May 14, 1997 the trial court issued a journal entry noting appellant tested positive for cocaine and ordering a capias for his arrest. Three days later, the trial court set the conclusion of appellant's new probation violation hearing for June 4, 1997; on that day, however, the conclusion of the hearing was rescheduled for June 11, 1997. The conclusion of appellant's new probation violation hearing proceeded as scheduled. After considering the comments of appel- lant's probation officer, appellant's counsel and of appellant himself, the trial court found appellant to be a probation violator and ordered his original sentence in this case into execution. Appellant's sentence subsequently was stayed pending this court's disposition of his appeal from the foregoing order. Appellant presents four assignments of error for review, which will be addressed in logical order. Appellant's first assignment of error states: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS FOUND TO BE A PROBATION VIOLATOR AFTER HIS PROBATION WAS IMPROPERLY EXTENDED BECAUSE IT HAD PREVIOUSLY EXPIRED. Appellant argues the trial court's order of December 11, 1996 finding him to be a probation violator was void for lack of -6- jurisdiction pursuant to R.C. 2951.09. This court, however, may not address this assignment of error since appellant filed no notice of appeal concerning the December 11, 1996 order. Without a timely notice of appeal filed from the order chal- lenged, this court is without jurisdiction to consider it. App.R. 4(A); App.R. 5(A); State v. Fisher (1975), 46 Ohio App.2d 279; State v. Kidwell (Feb. 16, 1995), Franklin App. No. 94APA06-883, unreported; State v. Jackson (Sep. 19, 1997), Lake App. No. 96-L- 124, unreported; cf., State v. Calvert (Mar. 4, 1993), Cuyahoga App. No. 64416, unreported; State v. Hickerson (June 12, 1997), Cuyahoga App. No. 70910, unreported. In any event, the record clearly demonstrates the trial court took its initial actions in determining whether appellant violated the terms of his probation on October 22, 1996, well within the period of appellant's probation, and did not terminate appellant's probation thereafter but, rather, extended it. Hence, the authority upon which appellant relies to support his argument is irrelevant. See, e.g., State v. Jackson (1995), 106 Ohio App.3d 345; State v. Jackson (1988), 56 Ohio App.3d 141; State v. O'Leary (1989), 43 Ohio App.3d 124; Lakewood v. Davies (1987), 35 Ohio App.3d 107; cf., State v. Simpson (1981), 2 Ohio App.3d 40. For the foregoing reasons, appellant's first assignment of error is overruled. Appellant's fourth assignment of error states: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT WOULD NOT ALLOW DEFENDANT HIS INDE- PENDENT TESTING THE SUBSTANCE. (Sic.) -7- Citing R.C. 2925.51, appellant asserts the trial court was required to grant his request for independent testing of the herbal remedies he asserted caused false positive results in his urinalysis tests. This argument is specious. R.C. 2925.51, by its very terms, states it is applicable only to any criminal prosecution for a violation of this chapter or Chapter 3719 of the Revised Code. Since a probation revocation proceeding is not a criminal prosecution, this statute affords appellant no basis for his argument. State v. Purdon (1986), 24 Ohio App.3d 217. Moreover, the trial court in this case twice arranged for retesting of appellant's urine at state expense in order to verify that no false positive results were generated by the substances appellant asserted he had ingested prior to the initial tests. Under these circumstances, appellant's right to due process of law was preserved in an exceedingly conscientious manner by the trial court. Therefore, appellant's fourth assignment of error is over- ruled. Appellant's third assignment of error states: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS FOUND TO BE A PROBATION VIOLATOR FOR AN ACT WHICH DOES NOT CONSTITUTE AN OFFENSE. Appellant argues the urine samples that 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. -8- 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. 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, although appellant was adamant in declaring that he "didn't purchase or inhale" cocaine, the urinalysis demonstrated appellant had taken controlled substances many times 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 -9- 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 third assignment of error is overruled. Appellant's second and final assignment of error states: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT DID NOT ARTICULATE (sic.) PROPER FINDING CONCERNING A DECLARATION OF A PROBA- TION VIOLATION. Appellant argues the trial court failed to set forth a suf- ficient explanation upon which to base its determination that he was a probation violator. This argument lacks merit. The Ohio Supreme Court has addressed the issue appellant raises in this assignment of error and has stated the following: The appellant's second contention regarding his alleged deprivation of due process is founded upon the Morrissey-Gagnon requirement that the factfinder provide `written state- ment *** as to the evidence relied on and the reasons for revoking [probation or] parole.' Gagnon v. Scarpelli, supra, at 786 (citing Morrissey v. Brewer, supra at 489). No such written statement was provided in the instant case, but the trial court judge orally stated his findings and reasons for revoking appel- lant's probation. This statement was made on the record and directed to the appellant, who was present at the time. [Footnote omitted.] Although we do not condone the use of oral explanations in lieu of written statements detailing the basis for a trial court's deter- mination in revocation proceedings, we find that, in this case, the trial court's state- ment sufficiently informed the appellant of the reasons for which his probation was being revoked, while also providing an adequate record for review on appeal. See United States v. Rilliet (C.A.9, 1979), 595 F.2d -10- 1138; Howie v. Commonwealth (1981), 222 Va. 625, 283 S.E.2d 197; State v. Harris (La. 1979), 368 So.2d 1066; Pearson v. State (1976), 308 Minn. 287, 241 N.W.2d 490. We therefore do not find any deprivation of the appellant's right to due process in this case. State v. Delaney (1984), 11 Ohio St.3d 231 at 234-35. At the beginning of appellant's new probation violation hearing on March 18, 1997, the trial court herein addressed appel- lant as follows: COURT: You can question whatever you want. I rely on the test results and the repeated cocaine tests are a con- cern. Now, mind you, this would not be an issue if you didn't have a drug abuse case which involved cocaine. It wouldn't even be an issue. If you had maybe, maybe been on proba- tion for having an unloaded gun in your possession, this might not be as suspicious as it appears. Do you understand? DEFENDANT: I understand. (Emphasis added.) Thereafter, when the hearing concluded on June 11, 1997, the trial court revealed the basis of its decision to find appellant in violation of his probation by stating: COURT: Of course I ordered testing or urine samples and substances on two occa- sions, retesting on two occasions, so that when he came in initially having tested positive and denied it and talked about his West Side In- stitute of Technology classes, and he would not do this, I had that retested and came (sic.) back dirty. I kept him on probation then. MR. MANCINO [APPELLANT'S COUNSEL]: -11- Yes. I'm not saying - COURT: There is an accumulation here of incidents that - despite the fact that I could have imposed a sentence on previous dates, I resisted that hoping that he wouldn't have any incidents and probation would run out. It just hasn't worked and he continues to use cocaine. I'm convinced he is using cocaine. I don't know if this gentleman knows that he's using cocaine. (Emphasis added.) In view of the foregoing statements made on the record and the notation in the trial court's final judgment entry that appellant tested positive for cocaine, appellant was sufficiently informed *** of the reasons for which his probation was revoked ***. State v. Delaney, supra. Thus, while a written statement is much preferred, appellant's right to due process of law was not compromised by the trial court's action in this case. State v. Taylor(Sep. 22, 1994), Cuyahoga App. No. 65895, unreported; State v. Delaney, supra; cf., Columbus v. Beuthin (1996), 108 Ohio App.3d 651; Columbus v. Bickel (1991), 77 Ohio App.3d 26. Accordingly, appellant's second assignment of error is also overruled. The order of the trial court is 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 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. TIMOTHY E. McMONAGLE, P.J. and JOHN T. PATTON, 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 .