{¶ 2} "The trial court erred in revoking Mr. Ferreira's community сontrol where Mr. Ferreira neither admitted to a violation of community control nor waived oral hearing, in violation of his right to due procеss."
{¶ 3} On August 16, 2004, appellant pled no contest to and was found guilty of two counts of robbery in violation of R.C.
{¶ 4} In April 2005, appellant was notified of а community control violation. After holding a hearing, the trial court continued appellant's community control.
{¶ 5} Appellant, however, committed a second community control violation in August 2005. See State v. Ferreira, 6th Dist. No. L-06-1136,
{¶ 6} On November 9, 2005, the common pleas court held a second community control revocation/sentencing hеaring. Appellant was permitted to speak and asked the judge to allow him to complete a drug/alcohol program before thе court determined whether to revoke his community control. Specifically, appellant stated:
{¶ 7} "It's basically what has been said. I took thеse actions before this court violated [sic] me and was working with my PO at this time to make amends for my indiscretion while on probation and in fact did aсcomplish those things and would ask only to be allowed to complete what I had started while on probation."
{¶ 8} After appellant spokе, the judge asked the prosecution and appellant's attorney if they could offer any reason that he should not proceed to sеntencing immediately. Both replied "No." The judge then ordered appellant to serve the remainder of his four year sentence in prison. In his written judgment entry, the court noted that appellant admitted that he violated a community control condition and waived an oral hearing. The judgе further stated that he considered the probation officer's reports in rendering his decision.
{¶ 9} In his sole assignment of error, appellant cоntends that he was not afforded due process during the revocation proceedings because he never admitted that he violated аny condition of his community control and did not expressly waive his right to a hearing. *4
{¶ 10} A defendant is entitled to due process when his community control is revоked as the result of a violation of a condition imposed on that control. Gagnon v. Scarpelli (1973),
{¶ 11} Notice of plain error under Crim.R. 52(B) is "`to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.'" See State v. Landrum (1990),
{¶ 12} In applying the foregоing standard, we must first determine whether any plain error occurred on the question of whether appellant was cognizant of the alleged violations of any of his community control conditions. State v. Barnes,
{¶ 13} There is also no plain error as to the waiver of an oral hearing becаuse appellant had an opportunity to be heard in person and to present witnesses and documentary evidence at both his first hearing on October 26, 2006, and his second hearing on November 9, 2006. As stated above, at the October 26, 2006 hearing appellant spoke and admitted that he had violated one of the conditions of his community control. At the November 9, 2006 second hearing appellant did take the opportunity to inform the court that he had a chance to enter a drug/alcohol program. He then expressly waived any right to any further opportunity tо present evidence by agreeing to continue immediately to sentencing. Thus, even if we would assume that the trial court conducted a consolidated hearing, we do not find plain error. See State v.Hammonds at ¶ 15. Accordingly, appellant's sole assignment of error is found not well-taken. *6
{¶ 14} On considerаtion whereof, the judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal рursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Lucas County.
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Peter M. Handwork, J., Arlene Singer, J., Thomas J. Osowik, J. CONCUR.