COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73728 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION DARRYL CARTER : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 12, 1998 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-297,053 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor JOHN CLOUGH, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: ROBERT A. DIXON Attorney at Law 1280 W. Third Street, #100 Cleveland, Ohio 44113 KENNETH A. ROCCO, J.: -2- This case is before the court on delayed appeal from a judg- ment of the common pleas court revoking probation and ordering into execution the sentence previously imposed against appellant Darryl Carter. Appellant raises five assignments of error: I. THE LOWER COURT DENIED THE APPELLANT DUE PROCESS AND EQUAL PROTECTION OF LAW BY FAILING TO HOLD A PRELIMINARY HEARING. II. THE APPELLANT'S RIGHT TO DUE PROCESS OF LAW WAS VIOLATED WHERE HIS PROBATION WAS REVOKED BASED ONLY UPON UNSWORN HEARSAY. III. THE LOWER COURT ABUSED ITS DISCRETION WHEN IT REVOKED THE APPELLANT'S PROBATION BASED UPON IMPROPER CONSIDERATIONS. IV. THE APPELLANT WAS DENIED EFFECTIVE ASSIS- TANCE OF COUNSEL WHICH RENDERED HIS PRO- BATION REVOCATION INVALID. V. THE LOWER COURT ERRED AND DENIED THE APPELLANT DUE PROCESS AND EQUAL PROTEC- TION OF LAW DUE TO THE LOWER COURT'S FAILURE TO ENTER A WRITTEN STATEMENT OF EVIDENCE RELIED ON AND REASONS FOR THE PROBATION REVOCATION. STATEMENT OF PROCEEDINGS On October 20, 1993, Darryl Carter pleaded guilty to one count of involuntary manslaughter and was sentenced to a term of imprisonment of three to ten years. At a hearing held January 4, 1995, he was granted shock probation for a period of three years on condition that he maintain full-time employment, submit to random urinalysis, obtain his GED, pay court costs, and perform one hundred hours of community work service. On November 8, 1995, the court held a probation violation hearing. At the hearing, probation officer Bruce Hill indicated -3- that Carter had been adversely terminated from court community service after performing nineteen and a half out of one hundred hours *** due to failure to report and unexcused or excessive absenteeism. Hill stated he had a copy of the community service program's termination of Carter and a waiver of preliminary hearing due to the termination. Carter's counsel admitted the violation and argued in mitigation that Carter had not tested positive for drug use, was reporting regularly, and [was] trying to get his life in order. Carter, himself, indicated he was having trouble with his relationship with his wife and lacked transportation. He conceded he had exercised bad judgment and requested the opportunity to complete his community service. The court stated that it had reviewed the entire record, including the report from the community service department termi- nating Carter from the program. The court noted that Carter had been given three chances to perform community service and failed to comply and that he had a history of three felony convictions and one misdemeanor, on all of which he was placed on probation. The court found Carter was a probation violator, terminated his probation, and ordered his original sentence into effect. LAW AND ANALYSIS Appellant first argues the court denied him due process and equal protection of the law by failing to hold a preliminary hearing. The purpose of the preliminary hearing is to determine whether there is probable cause or reasonable ground to believe that the arrested *** [probationer] has committed acts that would -4- constitute a violation of *** [probation] conditions. Morrisey v. Brewer (1972), 408 U.S. 471, 485. The hearing is designed to prevent a probationer from being unjustly incarcerated pending a final determination whether probation should be revoked. State v. Delaney (1984), 11 Ohio St.3d 231, 233. The preliminary hearing also serves a second purpose: to allow independent review of the charges *** `while information is fresh and sources are avail- able.' Id. (quoting Morrisey, supra). Appellant did not timely object to the lack of a preliminary hearing. He did not even raise the issue until this appeal, long after the trial court might have remedied the matter. Furthermore, the transcript of the revocation hearing indicates the court was provided with appellant's written waiver of a preliminary hearing. Although that waiver is not part of the record on appeal, neither appellant nor his attorney protested the validity of the waiver or the lack of a preliminary hearing at that time, when the court might have corrected any error. Moreover, appellant was not prejudiced by the lack of a preliminary hearing. It does not appear appellant was incarcerated pending the revocation hearing so he could not allege any prejudice on this account. Cf. Delaney, 11 Ohio St.3d at 233-34 (trial court was powerless to remedy any unjust incarceration when petitioner did not object to lack of probable cause hearing until final probation revocation hearing). Appellant also does not claim he was prejudiced because information was not fresh or sources were not available at the time of the final revocation hearing. Id. -5- Such a claim would be difficult to sustain in any case because appellant admitted the violation. Therefore, the first assignment of error is overruled. Appellant next argues his probation was revoked based only on unsupported hearsay. Appellant's counsel conceded that appellant had violated a condition of his probation, i.e., that he had failed to complete community service as ordered. His probation was revoked on that basis. No sworn testimony was required. Accord- ingly, the second assignment of error is overruled. Third, appellant complains that the court revoked his probation based on improper considerations. He suggests that his incompletionof one condition of his probation was minor and that the real basis for the court's decision was that the court disagreed with its predecessor's decision to grant appellant shock probation. Upon determining that appellant violated a condition of probation, the trial court had discretion to terminate appellant's probation. See R.C. 2951.09. Therefore, the standard of review is whether the trial court abused its discretion. See, e.g., State v. Savoia (1991), 76 Ohio App.3d 201, 208; also see State v. Emerick (1995), 108 Ohio App.3d 401, 407-08. The trial court found appellant had been given three chances to complete his community service and had failed to do so. Appellant had no explanation or excuse for his behavior and agreed he had exercised bad judgment in failing to complete community service as required. The court also considered that appellant had -6- committed several crimes for which he had been given probation. The court acted within its discretion in determining that appellant had proved himself incapable of regulating his own behavior so that incarceration was appropriate. Emerick, 108 Ohio App.3d at 408. Accordingly, the third assignment of error is overruled. Appellant's fourth assignment of error contends he was denied effective assistance of counsel. Appellant does not indicate whether he claims a violation of his federal or state constitu- tional rights; however, the test for determining whether counsel was constitutionally ineffective is essentially the same under both Ohio and federal law: First, the defendant must show that counsel's performance was deficient. This requires show- ing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amend- ment. Second, the defendant must show that the deficient performance prejudiced the de- fense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, whose result is reliable. Strickland v. Washington (1984), 466 U.S. 668, 687; see, also, State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus. The court must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. Strickland, supra, at 690. A convicted defendant making a claim of inef- fective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable profes- sional judgment. The court must then deter- mine whether, in light of all the circum- -7- stances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in pre- vailing professional norms, is to make the adversarial testing process work in the par- ticular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, supra. Appellant urges that his attorney failed to provide him effective assistance when he failed to: 1. Demand that the alleged violation or sup- porting documentation be made part of the record. 2. Demand that sworn and non-hearsay evidence be submitted. 3. Demand that a valid written waiver of probable cause hearing be made part of the record. 4. Demand that the Court enter written find- ings in support of its probation violation determination. In addition, appellant asserts counsel provided ineffective assistance when he admitted the probation violation. Counsel's conduct was well within the wide range of profes- sionally competent assistance. Counsel could reasonably have made a strategic decision not to contest the violation. Appellant's failure to appear for community service was a matter of record, easily proved. Counsel could reasonably have chosen not to waste time (and risk irritating the court) with a probably fruitless -8- challenge to the merits, instead focusing his argument on the appropriate court response to the violation. Counsel's failure to demand that evidence of the violation be placed on the record and to demand written findings in support of the violation determination is in accord with his strategic decision not to challenge the violation. There was no point in demanding evidence when the violation was admitted, nor was there any point in demanding written findings when the court made the reasons for its decision clear on the record at the hearing. There is no evidence appellant was prejudiced by any of these decisions. Finally, it is not clear what appellant would have gained if counsel had demanded that a written waiver of a probable cause hearing be placed on the record. Though appellant might have chal- lenged the validity of the waiver, as noted above, there is no evidence of any prejudice to appellant from the lack of a probable cause hearing so the validity of the written waiver was not material to the outcome of this case, particularly given counsel's valid, strategic choice to admit the violation. Accordingly, the fourth assignment of error is overruled. Finally, appellant asserts the court denied him due process and equal protection of the law by failing to enter a written statement of the evidence upon which it relied and its reasons for revoking his probation. Appellant correctly asserts that due process requires a written statement by the factfinder as to the evidence upon which it relied and its reasons for revoking proba- tion. Gagnon v. Scarpelli (1973), 411 U.S. 778, 782, 786. How- -9- ever, the Ohio Supreme Court has recognized a limited exception to this rule where a trial court orally informs a defendant of the reasons for its decision and provides an adequate record for review on appeal. State v. Delaney (1984), 11 Ohio St.3d 231, 235. In this case, the court sufficiently informed appellant of the reasons for its revocation of his probation and the evidence upon which it relied. Accordingly, appellant was not deprived of due process or equal protection of the laws, and the fifth assignment of error is overruled. Judgment affirmed. -10- 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 Common Pleas Court 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. TERRENCE O'DONNELL, P.J. and JAMES D. SWEENEY, 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 .