[Cite as State v. Swails, 2014-Ohio-3711.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100480




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.


                                         JACK SWAILS
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CR-11-547588

        BEFORE: Kilbane, J., Boyle, A.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED:                     August 28, 2014
ATTORNEY FOR APPELLANT

John P. Parker
988 East 185th Street
Cleveland, Ohio 44119

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Amy Venesile
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

      {¶1} Defendant-appellant, Jack Swails (“Swails”), appeals from his 36-month

prison sentence for violating his community-control sanction. For the reasons set forth

below, we affirm.

      {¶2} In March 2011, Swails was charged in Case No. CR-11-547588 with

aggravated robbery and felonious assault, which carried a pregnant victim specification.

In May 2011, Swails pled guilty to the amended charge of attempted felonious assault.

The pregnant victim specification was deleted and the aggravated robbery charge was

nolled. In June 2011, the trial court sentenced Swails to one year of community-control

sanction under the supervision of the Adult Probation Department.        The trial court

ordered that Swails pay restitution to the victim in the amount of $825, pay court costs,

and pay supervision fees in the amount of $20 per month.

      {¶3} On March 19, 2012, the trial court, sua sponte, extended Swails’s

community-control sanction to June 1, 2013. On April 8, 2013, the trial court again, sua

sponte, extended Swails’s community-control sanction to June 1, 2014. In June 2013,

Swails was arrested and subsequently indicted in Case No. CR-13-575260 for aggravated

burglary, kidnapping, felonious assault, and rape. This matter proceeded to a jury trial

before the same judge in Case No. CR-11-547588. At the conclusion of trial, the jury

found Swails not guilty of all the charges. That same day, the trial court scheduled a

community-control sanction/probation violation hearing for September 23, 2013 in Case

No. CR-11-547588.
       {¶4} At the hearing, the trial court found Swails to be in violation of his

community-control sanction and ordered him to serve 36 months in prison. The trial

court stated that:

       [COURT]: We’re here for a violation hearing. * * * [D]o we have a
       waiver, first of all?

       [PROBATION OFFICER:] Yes, we do, Your Honor.

       [COURT]: Swails was arrested on June 22nd, 2013 for felonious assault.
       He was tried last week and found not guilty by the jury. He also is charged
       with violating community control by failing to pay his court costs in full,
       supervisory fee in full[,] and restitution in full.

       ***

       [DEFENSE COUNSEL:] Your Honor, it’s my understanding, after
       conferring with [the probation officer] and Mr. Swails, that he has been
       paying on his restitution monthly, via money orders. Last payment was
       made, I think, in May.

       [PROBATION OFFICER]: It was in May.

       [DEFENSE COUNSEL:] Prior to him being arrested. And, he has paid
       that on a regular basis, Your Honor. We also noted that his probation was
       extended through June 2014. So, I would imagine he has, actually, to June
       to complete the payments. But he, in fact, makes payments on a regular
       basis.

       ***

       We would ask the Court to take that into consideration, as it addresses the
       violation which really stems from him being arrested on the new charge that
       he was just exonerated on.

       ***

       [COURT:] [T]here is a large difference between not guilty and innocent
       and you are anything but the latter. Mr. Swails, I sat through the trial,
       heard that you’re employed at University Hospitals. I heard that you live
      with your mom. Presumably, you’re not paying rent. You don’t drive.
      You don’t have a car payment. My question becomes, working but not
      paying the Court’s obligation leads me to believe it’s purposeful.

      I find you to be in violation for the new arrest. The evidence at trial clearly
      showed, although not to [the] reasonable doubt standard, that you
      victimized the same victim again. You failed to pay restitution to that
      same victim in this case.

      You failed to pay court costs in full and failed to pay supervisory fees.
      You are in violation of your community control. I’m terminating
      community control and I’m going to impose a 36-month sentence at the
      Lorain Correctional Institution.

      ***

      [DEFENSE COUNSEL:] Your Honor, we will file a notice of appeal in
      this matter. I think it’s vindictive. I think the probation officer indicated
      that he has, in fact, contrary to the statements by the Bench, been paying.
      And just your statement that he hadn’t been, this Court clearly knows he has
      been paying on a regular basis.

      {¶5} Swails now appeals, raising the following three assignments of error for

review.

                                Assignment of Error One

      The extension of [Swails’s] probation on two separate occasions without a
      hearing or notice to appellant was contrary to Ohio law and the Due Process
      Clause of the Fourteenth Amendment of the Federal Constitution.

                                Assignment of Error Two

      [Swails] was denied a “neutral and detached” hearing body for his alleged
      probation violation hearing in violation of Gagnon v. Scarpelli, [411 U.S.
      778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).]

                               Assignment of Error Three

      The trial court’s imposition of 3 years on the probation violation is
      “vindictive” for [Swails] exercising his right to a jury trial and the trial
       court’s disagreement with the verdict in violation of the 14th Amendment
       of the Federal Constitution.

                                   Probation Extensions

       {¶6} In the first assignment of error, Swails argues his due process rights were

violated when the trial court, sua sponte, extended his community-control sanction in

March 2012 and April 2013, without any evidence of a waiver of hearing or a hearing.

He claims that he was not properly notified of the extensions and was not afforded the

opportunity to be present at the hearings.

       {¶7} We note that the trial court initially sentenced Swails in June 2011. He was

present in open court with defense counsel. Having pled guilty to attempted felonious

assault, the trial court sentenced Swails to one year of community-control sanction. The

trial court also ordered that Swails pay court costs, supervision fees, and restitution to the

victim.   Then on March 19, 2012, the court extended Swails’s community-control

sanction to June 1, 2013.          On April 8, 2013, the court again extended his

community-control sanction until June 1, 2014.

       {¶8} Swails’s argument that he lacked notice of the two extensions is unpersuasive

because Swails continued to report to his probation officer for the duration of both

extensions, and he continued to make partial payments, which spanned a period of two

years. Swails could not have continued to report without first having notification of the

extensions. This knowledge afforded Swails the opportunity to appeal the extensions at

the time they were imposed if he felt they were improper. The record is clear that Swails

did not appeal from either extension. “By * * * submitting himself to the jurisdiction of
the court over his person by accepting the extension of community control and complying

with its terms for more than a year before the motion to revoke was filed, appellant has

waived any error in the court’s failure to give him notice and a hearing at the time of the *

* * extension of community control.” State v. Carpenter, 5th Dist. Stark No. 2008 CA

00238, 2009-Ohio-4759, ¶ 16.          Therefore, by acquiescing to the terms of both

extensions, we find that Swails has waived any alleged error regarding their imposition.

       {¶9} We further note that the record before us does not contain any evidence of

hearing waivers for the extensions imposed in March 2012 and April 2013. It is well

established that a defendant may waive a probation extension hearing by signing a

hearing waiver. State v. Rose, 8th Dist. Cuyahoga No. 70984, 1997 Ohio App. LEXIS

1072, *6-*7. Thus, we must presume regularity regarding the previous two extensions of

Swails’s community control sanctions. State v. West, 8th Dist. Cuyahoga Nos. 97398

and 97899, 2014-Ohio-198, citing Volodkevich v. Volodkevich, 48 Ohio App.3d 313, 549

N.E.2d 1237 (9th Dist.1989), and Wozniak v. Wozniak, 90 Ohio App.3d 400, 409, 629

N.E.2d 500 (9th Dist. 1993). See also App.R. 9(B) and 10(A).

       {¶10} Accordingly, the first assignment of error is overruled.

                                Probation Violation Hearing

       {¶11} In the second and third assignments of error, Swails argues he was denied a

neutral and detached hearing for his alleged community-control sanction violation,

claiming that the trial court was “vindictive.”
       {¶12} We review a trial court’s decision finding a violation of community control

for an abuse of discretion.         State v. Hayes, 8th Dist. Cuyahoga No. 87642,

2006-Ohio-5924, ¶ 11, citing State v. Miller, 10th Dist. Franklin No. 03AP-1004,

2004-Ohio-1007.

       {¶13} In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656

(1973), the United States Supreme Court, relying on its earlier decision of Morrissey v.

Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), set forth the following

minimum due process requirements for probation revocation proceedings:

       (a) written notice of the claimed violations of [probation or] parole; (b)
       disclosure to the [probationer or] parolee of evidence against him; (c)
       opportunity to be heard in person and to present witnesses and documentary
       evidence; (d) the right to confront and cross-examine adverse witnesses * *
       *; (e) a “neutral and detached” hearing body * * *; and, (f) a written
       statement by the fact finders as to the evidence relied on and reasons for
       revoking [probation or] parole.

Id. at 786.

       {¶14} We note that the trial court that placed the defendant on probation is

considered a “neutral and detached” hearing body for purposes of probation revocation,

“unless there is evidence to demonstrate that undue bias, hostility, or absence of neutrality

existed on the part of the court.” State v. Murr, 35 Ohio App.3d 159, 520 N.E.2d 264

(6th Dist.1987), syllabus, applying Gagnon.

       {¶15} Here, Swails has not demonstrated that the trial court acted with any bias or

hostility. A review of the revocation hearing reveals that the court considered the facts

of Swails’s other case. The trial court found Swails in violation of community control
for his arrest in that case. The court also acknowledged that Swails is employed, but has

failed to pay his court-ordered restitution, court costs, and supervisory fees. As a result,

the court sentenced Swails to 36 months in prison. Based on the foregoing, we find that

the trial court acted as a “neutral and detached” body when it revoked Swails’s

community-control sanction.

       {¶16} Therefore, the second and third assignments of error are overruled.

       {¶17} Judgment is affirmed.

       It is ordered that appellee recover from 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 common

pleas 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.




MARY EILEEN KILBANE, JUDGE

MARY J. BOYLE, A.J., and
EILEEN T. GALLAGHER, J., CONCUR
