COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73933 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-appellee : JOURNAL ENTRY : AND -vs- : OPINION : DUMITRU PEIU : PER CURIAM : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 29, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Case No. CR-269626 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: ROGER KRAMER, ESQ. ASST. COUNTY PROSECUTOR 1200 Ontario Street Eighth Floor, Justice Center Cleveland, Ohio 44113 For Defendant-Appellant: GERALD S. GOLD, ESQ. JOHN S. PYLE, ESQ. GOLD, ROTATORI & SCHWARTZ 1500 Leader Building 526 Superior Avenue, East Cleveland, Ohio 44114 PER CURIAM: Appellant, Dumitru Peiu, is appealing the denial of his motion -2- for super shock probation. For the following reasons, we affirm. Appellant pled guilty to conspiracy to commit aggravated murder, R.C. 2923.01, a first degree felony. In a journal entry dated February 28, 1992, Judge James J. Sweeney sentenced appellant to five to twenty-five years. On November 17, 1997, appellant filed a motion for super shock probation. The motion discussed the circumstances of the crime, and argued that appellant was not likely to commit another offense. Attached to the motion was evidence demonstrating appellant's good behavior in prison, a plan for appellant's employment and housing upon release and character letters of reference. There were also documents indicating that appellant was denied parole due to the nature of the offense and appellant's prior record. On November 30, 1997, Judge James J. Sweeney resigned from the bench and became a visiting judge . Judge Sweeney's docket was assigned to Retired Judge Ralph McAllister pending the appointment of a replacement. Judge McAllister denied appellant's motion for shock probation. Appellant's sole assignment of error states: THE DENIAL OF THE APPELLANT'S MOTION FOR SUPER SHOCK PROBATION WITHOUT A HEARING CONSTITUTES AN ABUSE OF DISCRETION BECAUSE THE JUDGE WHO DENIED THE MOTION WAS NOT THE SENTENCING JUDGE. A judge other than the sentencing judge may rule upon a motion for shock probation if the sentencing judge is unavailable. R.C. 2947.061. Appellant does not dispute that Judge Sweeney was unavailable. Appellant argues that Judge McAllister did not consider the factors required to be considered by R.C. 2951.02(F), -3- and thus erred in denying the motion for shock probation. The prosecution asserts that the trial court properly denied shock probation under former R.C. 2951.02(F)(1). R.C. 2951.02(F)(1) stated that an offender shall not be placed on probation when the offense involved is aggravated murder or murder . Arguably, this section does not apply because the appellant was convicted of conspiracy to commit aggravated murder, not murder or aggravated murder. See State v. Shainoff (1996), 117 Ohio App.3d 129, State v. Long (1990), 68 Ohio App.3d 663, State v. Buttry(Dec. 30, 1982), Cuyahoga App. No. 44408, unreported, State v. Matthews (Jan. 10, 1991), Miami App. No. 90CA5, unreported. Appellant's motion for shock probation was properly denied because it was not timely. A defendant who is convicted of an offense other than an aggravated felony must file his motion for super shock probation not later than sixty days after defendant, having been sentenced, begins serving his sentence. R.C. 2947.061(A). If the motion is not timely filed, the court has no jurisdiction to grant the motion. State v. Delaney (1983), 9 Ohio App.3d 47, State v. Harris (Dec. 24, 1987), Cuyahoga App. No. 53919, unreported. In this case, appellant was convicted of a first degree felony, not an aggravated felony. Appellant's motion for super shock probation was not filed within sixty days and was not timely. Additionally,the trial court did not abuse its discretion in denying the motion without an oral hearing. An oral hearing on a motion for shock probation is discretionary, not required. State -4- v. Orris (1971), 26 Ohio St.2d 87, 89. Appellant cites State v. Hayes (June 30, 1995), Greene App. No. 94-CA-117, unreported. Hayes is distinguishable,because the court scheduled a hearing and then denied the motion for shock probation before the hearing took place. In the present case, no hearing was scheduled. Appellant contends the trial court abused its discretion in failing to hold a hearing because the new judge had no knowledge of the circumstances of the case. Appellant asserts that the record did not state that the judge reviewed a presentence report, consulted with the sentencing judge or considered the R.C. 2951.02 factors. A silent record raises the presumption that the court did consider the statutory factors. See State v. Adams (1988), 37 Ohio St.3d 295, 297-298. The record does not demonstrate that the trial judge did not consider the salient factors. Additionally, the appellant does not demonstrate how the allegedly omitted factors would have resulted in a reasonable chance that probation would have been granted. See State v. Delaney (1983), 9 Ohio App.3d 47, State v. Hatcher (Mar. 28, 1991), Cuyahoga App. No. 58235, unreported. We also note that the judge is not required to consider a presentence report when probation is denied. State v. Digrino (1995), 107 Ohio App.3d 336, 339 citing State v. Cyrus (1992), 63 Ohio St.3d 164, 166. We find that the trial court did not abuse its discretion in failing to hold an oral hearing. We also find that the trial court did not abuse its discretion in denying shock probation. See State v. Hawk (1992), 81 Ohio App.3d 296. There were some factors in favor of granting -5- probation, such as good behavior in prison and character reference letters. There were also factors in favor of denying probation, such as the nature of the offense and appellant's prior criminal record. We can not say that the trial court abused its discretion in denying shock probation. Accordingly, appellant's assignment of error is overruled. The decision of the trial court is affirmed. -6- 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 Common Pleas Court to carry this judgment into execution. 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. PATRICIA BLACKMON, ADMINISTRATIVE JUDGE ANN DYKE, JUDGE DIANE KARPINSKI, 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 .