COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73850 CITY OF CLEVELAND HEIGHTS : : Plaintiff-Appellee : JOURNAL ENTRY : vs. : AND : : OPINION JOSEPH SCHULGASSER : : Defendant-Appellant : : DATE OF ANNOUNCEMENT DECEMBER 10, 1998 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Cleveland Heights Municipal Court Case No. CRB-9500177 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: KIM T, SEGEBARTH, Prosecutor City of Cleveland Heights 40 Severance Circle Cleveland Heights, Ohio 44118 For Defendant-Appellant: PATRICIA KOCH WINDHAM 400 Terminal Tower 50 Public Square Cleveland, Ohio 44113-2203 JUDGE TERRENCE O'DONNELL: Joseph Schulgasser appeals from orders of the Cleveland Heights Municipal Court which found him to be a probation violator, extended the term of his probation, and modified the conditions of -2- his probation. The record in this case reveals that on October 2, 1995, the court found Schulgasser guilty of trespassing, sentenced him to 30 days in jail, and a $250 fine, but suspended both the time and the fine and placed him on probation on the condition he remain 25 feet from the Agudath Israel during the meeting times of the congregation Torah U' Tefillah and refrain from harassing members of its congregation. As a result of numerous complaints alleging violations of probation, the court held a probation violation hearing on December 1 and December 8, 1997, and found Schulgasser had violated the conditions of his probation. As a result, the court modified the terms of Schulgasser's probation to prohibit him from harassing, menacing, stalking, or intimidating members of the congregation at any time, to prohibit Schulgasser from positioning himself on the sidewalk between Bainbridge and Blanche streets in front of the Agudath Isreal during the time of its services, and to prohibit screaming, chanting, speaking, or singing to hamper or impede any members of the congregation and extended the period of Schulgasser's probation until October 2, 2000. Schulgasser now appeals from this decision and raises four assignments of error for our consideration, which state: I. THE TRIAL COURT'S MODIFICATION OF THE TERMS OF APPELLANT'S PROBATION VIOLATED HIS CONSTITUTIONALLY GUARANTEED FREEDOM OF SPEECH UNDER THE FIRST AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES. II. -3- THE TRIAL COURT ABUSED ITS DISCRETION IN MODIFYING THE TERMS OF APPELLANT'S PROBATION BECAUSE THE COURT EXCEEDED THE SCOPE OF ITS AUTHORITY PURSUANT TO R.C. 2951.02 ET SEQ. III. THE TRIAL COURT ERRED IN FINDING THAT APPELLANT HAD VIOLATED PROBATION BY FOLLOWING PEOPLE AND STANDING WITHIN 25 FOOT PERIMETER. IV. THE TRIAL COURT DENIED APPELLANT'S DUE PROCESS RIGHTS IN FAILING TO HOLD A HEARING ON HIS MOTION FOR APPOINTED COUNSEL, AND QUASHING THE SUBPOENA FOR EVIDENCE AGAINST HIM. This appeal squarely presents the conflict between Schulgasser's claimed freedom of speech rights and the rights of members of the Torah U'Tefillah congregation to peaceably assemble and exercise their freedom of religion. Schulgasser contends the modified terms of his probation are overbroad and impinge on his liberty, and they are unrelated to his rehabilitation or future criminal conduct. He also asserts the court erred in finding he violated his probation, and that the court denied his due process rights because he had no appointed counsel and the court quashed a subpoena he had issued for the records of the Cleveland Heights Probation Department. The city maintains the court acted properly in sentencing the appellant. Pursuant to R.C. 2951.02, the trial court is granted broad discretion in setting conditions of probation. Specifically, R.C. 2951.02(C) provides in relevant part: * * * In the interests of doing justice, rehabilitating the offender, and ensuring the offender's good behavior, -4- the court may impose additional requirements on the offender * * * . Compliance with the additional requirements shall also be a condition of the offender's probation * * *. In determining whether a condition of probation relates to the interests of doing justice, the court in State v. Jones (1990), 49 Ohio St.3d 51, stated at 53: * * * courts should consider whether the condition (1) is reasonably related to rehabilitating the offender, (2) has some relationship to the crime of which the offender was convicted, and (3) relates to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation. The evidence presented at the probation violation hearing on December 1 and December 8, 1997, supports the court's conclusion that Schulgasser violated the conditions of his probation. The court's imposition of greater restrictions on Schulgasser's activities in this case are reasonably related to Schulgasser's rehabilitation and serve to prevent further incidents of trespassing. Since the court having found Schulgasser to be a violator, could have incarcerated him, imposing more restrictive probationary conditions designed to cause him to avoid further involvement with the Torah U'Tefillah congregation cannot be considered unreasonable. The court properly balanced the competing constitutional rights here to effectuate a just result. Schulgasser failed to properly demonstrate his inability to retain counsel for the probation violation hearing, nor has he demonstrated his entitlement to the records of the probation department. Therefore, we conclude the court did not abuse its discretion in deciding these matters. -5- Accordingly these assignments of error are overruled and the judgment of the trial court is affirmed. Judgment affirmed. -6- It is ordered that appellee recover of appellant 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 Cleveland Heights 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 D. SWEENEY, J., and MICHAEL J. CORRIGAN, J., CONCUR PRESIDING JUDGE TERRENCE O'DONNELL 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 .