COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73483 CITY OF PARMA : ACCELERATED DOCKET : JOURNAL ENTRY Plaintiff-Appellee : AND : OPINION : -vs- : PER CURIAM : MATTHEW MELINIS: : Defendant-Appellant : DATE OF ANNOUNCEMENT : JUNE 25, 1998 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Parma Municipal Court Case No. 96-CRB-2434 JUDGMENT : Affirmed as modified. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: William D. Mason, Esq. Chief Prosecutor City of Parma 5454 State Road Parma, Ohio 44134 Timothy Miller, Esq. Assistant Prosecutor City of Parma 5750 West 54th Street Parma, Ohio 44129 For defendant-appellant: Thomas E. O'Toole, Esq. 75 Public Square Suite 1320 Cleveland, Ohio 44113-2001 -2- PER CURIAM: This cause came to be heard upon the accelerated calender pursuant to App.R. 11.1 and Local App.R. 25, the record from the Parma Municipal Court, and briefs of counsel. Matthew Melinis, defendant-appellant, assigns two errors for review. This court, finding no error, affirms the decision of the court as modified. On October 11, 1996, defendant-appellant pled no contest to domestic violence in violation of R.C. 2919.25(A). Defendant- appellant was sentenced to 30 days in jail (29 of which were suspended), a $250 fine ($100 of which was suspended), costs and probation for twelve months. Defendant-appellant immediately served his one-day sentence. On May 18, 1997, defendant-appellant was again arrested for severely beating his girlfriend. On October 16, 1997, defendant- appellant pled guilty to domestic violence. On October 20, 1997, there was a probation arrest warrant issued. A probation violation hearing was held on November 6, 1997 wherein defendant-appellant admitted to violating his probation. The trial court imposed a 180- day jail sentence with credit for time served. Defendant-appellant timely filed this appeal.1 Defendant-appellant's first assignment of error states: I. THE TRIAL COURT WAS WITHOUT AUTHORITY TO SENTENCE THE DEFENDANT TO ANY TERM OF CONFINEMENT FOR A PROBATION 1We note that defendant-appellant's initial conviction for domestic violence is a collateral legal disability to defendant- appellant as his second conviction rises to the level of a felony pursuant to R.C. 2919.25. Contrary to plaintiff-appellee's assertions, this appeal is not moot pursuant to State v. Golston (1994), 71 Ohio St.3d 224. -3- VIOLATION, WHEN THE ORIGINAL PLEA WAS UNCOUNSELED AND THE RECORD CONTAINS NO COMPETENT EVIDENCE OF A KNOWING, INTELLIGENT WAIVER OF COUNSEL. Defendant-appellant argues there is no evidence establishing his waiver of counsel was voluntarily, knowingly, and intelligently made pursuant to Crim.R. 44 (C). In the absence of such evidence, defendant-appellant contends his Sixth Amendment right to counsel has been violated. We disagree. The Sixth Amendment, as made applicable to the states by the Fourteenth Amendment, guarantees that a defendant in a state criminal trial has an independent constitutional right to self- representation and that he may proceed to represent himself without counsel when he voluntarily, knowingly, and intelligently elects to do so. Faretta v. California (1976), 422 U.S. 806. Not only was a Waiver of Counsel Crim.R. 44(A) form signed by defendant-appellant and entered into the record, also a transcript of the arraignment hearing on October 11, 1996 has been supplemented into the record by plaintiff-appellee which establishes defendant-appellant's waiver was voluntarily, knowingly, and intelligently entered. See Garfield Heights v. Gipson (1995), 107 Ohio App.3d 589; State v. Hang (1976), 49 Ohio App.3d 268. Defendant-appellant's first assignment of error is not well taken. Defendant-appellant's second assignment of error states: II. THE TRIAL COURT WAS WITHOUT AUTHORITY TO SENTENCE THE DEFENDANT TO A TERM OF IMPRISONMENT IN EXCESS OF THAT ORIGINALLY IMPOSED, AFTER A PORTION OF THE ORIGINAL SENTENCE HAS ALREADY BEEN SERVED. -4- Defendant-appellant argues the subsequent imposition of a 180- day sentence violates his right to be free from double jeopardy. Specifically, defendant-appellant argues he was initially sentenced to thirty days with twenty-nine of those days being suspended. Defendant-appellant immediately served his one day under that sentence. After being found to be a probation violator, defendant- appellant argues that the trial court is without authority to increase the sentence after any portion of the sentence has been executed. We agree. In State v. Draper (1991), 60 Ohio St.3d 81, the Ohio Supreme Court held in paragraph two of its syllabus: While R.C. 2951.09 authorizes a trial court to revoke shock probation granted an offender pursuant to R.C. 2929.51(B) and 2947.061 for violation of the terms thereof, the court may not impose a term of incarceration in excess of the original sentence. The court recognized an essential distinction between probation imposed in lieu of execution of sentence and probation granted after a term of incarceration has been served. Cf. State v. McMullen (1983), 6 Ohio St.3d 244. The court in Draper reasoned that the defendant not only has an expectation of finality in the original sentence, but has already undertaken to serve it. Id. at 83. In this case, while defendant-appellant was not granted shock probation or early release, he was sentenced to spend one day in jail and had already served that sentence with twenty-nine days suspended. Accordingly, the trial court erred in sentencing defendant-appellant to 180 days (minus time served) for his -5- probation violation.2 See State v. Hylton (1991), 75 Ohio App.3d 778. Therefore, pursuant to App.R. 12(A), the trial court's decision is affirmed but modified to reflect defendant-appellant should have received a sentence of twenty-nine (29) days. Affirmed as modified. 2Although a review of the arraignment transcript reveals the trial court incorrectly informed defendant-appellant the maximum penalty he was subjected to was two months instead of six months in violation of Crim.R. 11, we find any error harmless due to the trial court's imposition of thirty days and our disposition of this case. -6- It is ordered that appellant recover of appellee his 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 Parma Municipal 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. JAMES M. PORTER, PRESIDING JUDGE ANN DYKE, J., JUDGE MICHAEL J. CORRIGAN, JUDGE 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 .