{¶ 3} On December 19, 2007, the trial court issued a capias for Appellant's arrest after receiving a report from the Adult Parole Authority, which indicated Appellant had violated one or more of the judicial release orders/community control sanctions, and had absconded from supervision. The State filed a Motion to Revoke Community *3 Control on December 21, 2007. Therein, the State asserted Appellant had violated the terms and conditions of community control by failing to report to his parole officer on December 3, 2007, December 10, 2007, and December 14, 2007; and by failing to keep his supervising officer informed of his residence and place of employment as his whereabouts were unknown on December 3, 2007.
{¶ 4} The trial court scheduled a merits/plenary hearing for January 31, 2008. At the hearing, Appellant requested a continuance explaining he and his attorney had not had an opportunity to discuss which witnesses to subpoena. The trial court rescheduled the matter for February 13, 2008. The State filed an Addendum Motion to Revoke on February 4, 2008. Therein, the State asserted Appellant had violated the terms and conditions of his judicial release by leaving Tuscarawas County without permission; and by committing additional offenses. Following the merits/plenary hearing on February 27, 2008, the trial court revoked Appellant's judicial release and re-sentenced him accordingly. The trial court memorialized its ruling via Judgment Entry filed February 28, 2008.
{¶ 5} It is from this judgment entry Appellant appeals, raising the following assignments of error:
{¶ 6} "I. DOES THE TRIAL COURT ERR BY FAILING TO ESTABLISH ITSELF AS A NEUTRAL AND DETACHED BODY — DEMONSTRATING UNDUE BIAS, HOSTILITY, AND/OR ABSENCE OF NEUTRALITY?
{¶ 7} "II. IT IS ERR TO PERMIT USE OF HEARSAY EVIDENCE IN A HEARING TO REVOKE JUDICIAL RELEASE?" *4
{¶ 10} In Gagnon v. Scarpelli (1973),
{¶ 11} At the merits/plenary hearing on February 27, 2008, defense counsel moved the trial court to dismiss the State's Addendum to its Motion to Revoke arguing, *5 as Appellant does herein, the trial court's ordering the State to amend its motion to revoke was beyond the bounds of impartiality. We disagree. The trial court, as part of its routine duties, had acquired notice of new criminal charges being filed against Appellant which charges could be properly included within the motion to revoke. Although the prosecutor agreed the trial court had issued such an order, the evidence reveals the State had every intention of filing the addendum with or without the court's input. Appellant did not seek recusal of the judge. Additionally, the record is devoid of any evidence the trial court would not have revoked Appellant's judicial release had it not been presented with the additional grounds.
{¶ 12} Appellant's first assignment of error is overruled.
{¶ 14} As set forth, supra, one of the due process requirements in a probation revocation proceeding is the right to confront and cross-examine adverse witnesses. Id.
{¶ 15} At the hearing, Captain Michael Goodwin, a detective with the New Philadelphia Police Department, testified relative to fingerprint evidence he obtained at the scene of a break-in at the Nazarene Church. When Captain Goodwin began to testify about the results of the fingerprint analysis he received from the Bureau of Criminal Investigation, Appellant objected on the basis of hearsay because the person who analyzed the fingerprints and wrote the report was not available for cross-examination. The trial court overruled Appellant's objection, noting the Rules of Evidence do not apply in revocation proceedings. *6
{¶ 16} Appellant concedes the Ohio Rules of Evidence do not necessarily apply to the revocation hearing at issue, however, Appellant argues, at a minimum, due process requires he be afforded the right to confront and cross-examine witnesses.
{¶ 17} Generally, probation revocation hearings are not subject to the rules of evidence. The admission of hearsay evidence into a probation revocation hearing can only be construed as reversible error when it constituted the sole, crucial evidence in support of the probation violation determination. State v. Partin, Richland App. No. 07CA104,
{¶ 18} Upon review of the record, we find the testimony regarding the fingerprint analysis was not the only evidence linking Appellant to the break-in at the Nazarene Church and was not the sole basis for the trial court's revoking his probation.
{¶ 19} Based upon the foregoing, Appellant's second assignment of error is overruled.
{¶ 21} A defendant under community control is entitled to both a preliminary and a final revocation hearing. Gagnon, supra at 782. The preliminary hearing is a "probable cause" hearing to determine if a defendant violated any terms of his community control. Morrissey v.Brewer (1972),
{¶ 22} The State concedes the trial court did not conduct a preliminary hearing regarding the February 4, 2008 Addendum Motion to Revoke. The trial court conducted a merits hearing on February 27, 2008, upon both the original motion to revoke and the amendment. At no time during the merits hearing did Appellant object to the failure of the trial court to conduct a preliminary hearing on the amended motion. In fact, defense counsel advised the trial court he had an adequate opportunity to review the file prior to the hearing date, and specifically advised the trial court Appellant had received the amendment and had an opportunity to review and prepare for the hearing. Accordingly, we find Appellant has waived this argument on appeal.
{¶ 23} Assuming, arguendo, the trial court erred in failing to conduct a preliminary hearing on the amended motion, we find such error was not prejudicial to Appellant. The trial court conducted a preliminary hearing on the original motion to revoke. After hearing the evidence presented at the merits hearing on February 27, 2008, the trial court found the State had proved by a preponderance of the evidence the violations set forth in the original motion to revoke. Because there was sufficient evidence in the original motion to revoke upon which the trial court could find Appellant violated the terms and conditions of probation, we find Appellant was not prejudiced by the trial court's failure to conduct a preliminary hearing on the amended motion.
{¶ 24} Appellant's third assignment of error is overruled. *8
{¶ 25} The judgment of the Tuscarawas County Court of Common Pleas is affirmed.
Hoffman, P.J. Wise, J. and Edwards, J. concur