#### The State of Ohio, Appellee, *v.*Skypeck, Appellant.

(No. 20197

Decided November 26, 1945.)

*Mr. Frank T. Gullitan,*prosecuting attorney, for appellee.

*Mr. Joel Krupman,*for appellant.

*226Skeel, P. J.

This case -comes to this court on questions of law. The defendant was arrested on a charge of grand larceny. The defendant entered a plea of guilty to the indictment. On November 16, 194-4, the court suspended the imposition of sentence and put the defendant on probation to W. B. Dillon, chief of the probation department of the Common Pleas Court of Cuyahoga county, for a period of five years.

On June 11, 1945, a *capias*was ordered for the defendant by a judge other than the one who put the defendant on probation. On June 12, 1945, the defendant was brought before the court. Thereupon, after a conference between the judge,” the deputy probation officer and defendant’s counsel, in which it was stated that the court had ordered defendant’s arrest on information received from a member of the Cleveland police department, the following procedure is disclosed by the record:

“The court: I desire to inform you gentlemen that I take full responsibility for the issuance of the *capias*for the arrest of Michael Skypeck based on information that 1 have received from a member of the Cleveland police department and not by reason of any action on the part of the probation department.

‘ ‘ Thereupon, the parties hereinabove named then returned to open court and the following proceedings were had in the presence and hearing of the defendant; Michael K. Skypeck:

“The court: Michael Skypeck, what have you been doing for a living since you have been planed on probation?

“The defendant: I was placed on probation December, 1944, by Judge Baer. Prior to that time and for some period after being placed on probation, I worked at the East 105th Street Service *&*Parking Station located on East 105th street near Euclid avenue. When *227my probation officer, Mr. Scbiffer, requested that I get away from the East 105th street and Euclid avenue center, I then was employed as a car service man at a garage in Cleveland Heights. My mother became ill and Mr. Scbiffer allowed me to go to Massachusetts where she lives, where I spent one week and returned, reporting to him. I then worked in the West Side Market. I have worked all during that period except about three weeks. The last .two weeks I have been painting and paper-hanging my home-where I live with my wife and child. I also helped Mr. Krupman in the office while he was without a stenographer.

“The court: I don’t believe you. Haven’t you been doing some gambling?

“The defendant: I did some gambling before I was put on probation, but not since.

“The court: Where do you get the good clothes that you wear?

“The defendant: I had those clothes before I was placed on probation.

‘ ‘ The court: Where do you get the money you have been spending? .

“The defendant: I have been working pretty steady for the past year and a half, and have had some saved.

“The court: You have a bad past record and although I hate to act as the Court of Appeals in reviewing Judge Baer’s decision to place you on probation last term, nevertheless, I am going to order the original sentence into execution. Ohio State Penitentiary.

“Mr. Krupman-: Counsel for defendant excepts.

“The court: You may save your exception.”

The above constitutes the entire record in this case.

This appeal is from the judgment that was entered by which the defendant was sentenced to the penitentiary upon the revocation of his probation. '

The first claim of the defendant is that the court *228•erred in ordering “the original sentence into execution” when no sentence had yet been imposed, without first complying with Section 13451-1, General Code, by informing the defendant of the decision of the court and inquiring whether he had anything to say why judgment should not be pronounced.

It is true that until the order revoking probation was made, no sentence had yet been imposed. But the order revoking probation and ordering defendant sent to the penitentiary was sufficient where the defendant had entered a plea of guilty. Aud further the record discloses that Section 13451-1, General Code, was fully complied with by the court at the time the defendant was placed on probation.

The second question presented by this appeal is the defendant’s claim that there was no evidence that the defendant had violated the terms of his probation, and that the court failed to afford him a proper hearing as provided by Sections 13452-4 to 13452-7, inclusive, General Code.

Section 13452-4, General Code (113 Ohio Laws, 202), provided:

“Upon entry in the records of the judge or magistrate, of the order for the probation provided for in this chapter, the defendant shall be released from custody as soon as the requirements and conditions required by the judge supervising the probation, have been properly and fully met, but shall continue under the control and supervision of the department of probation or probation officer, as the case may be, to the extent required by law, the terms and conditions of the order of probation, and the rules and regulations governing said department of probation. ’ ’

Section 13452-5, General Code, reads:

“The probation provided for in this chapter shall continue for such period as the judge or magistrate shall determine, and may be extended from time to *229time, the total period, however, not exceeding five years, but if, during such period, the probationer absconds or otherwise absents himself from the jurisdiction of the court without permission from the probation department, or the court, so to do, or if he is confined in any institution for the commission of any offense whatever, the probation period shall cease to run until such time as he is brought before the court for its further action under this act.”

In this case the trial judge determined that the probation should continue for five years.

Section 13452-7, General Code, reads:

“When the defendant is brought before the judge or magistrate, such judge or magistrate shall immediately inquire into the conduct of the defendant, and may terminate the probation, and impose any sentence which might originally have been imposed or continue the probation and remand the defendant to the custody of the probation authority, at any time during the probationary period fixed as herein provided, when the ends of justice will be served and- the good conduct of the person so held shall warrant it, the judge or magistrate may terminate the period of probation * * *.”

The foregoing sections are a part of chapter 31 of the Code of Criminal Procedure, dealing with the subject of probation. Those sections supersede the power of the court at common law to place a defendant on probation after he has been found guilty of or has pleaded guilty to a crime in a court of competent jurisdiction. #

The history.of those sections of the Code go back to an act of the Legislature passed by the 77th General Assembly in 1908 (99 Ohio Laws, 339) which became Sections 2210 to 2215, General Code, inclusive, of Part First, Title Y, Division IY, Chapter 3, and Sections 13706 to 13715, inclusive, General Code, of Part *230Fourth, Title II, Chapter 11, General Code. The procedure, provided for in case of the claim that a defendant who had been placed on probation had violated the conditions of his probation, was contained in Section 2213, General Code, and in part provided:

“If a person placed on probation fails to conduct himself in accordance with the rules and regulations of the institution in whose charge he has been placed, a field officer thereof, without warrant or other process, because of such failure, may arrest and convey him tó the institution and the board of managers, after full investigation and a personal hearing, may forthwith terminate the probation and cause him to suffer the penalty of the sentence previously suspended. * ** *”*

It is to be noted that a hearing was provided for. The board of managers of the institution to which defendant had been sentenced, were not authorized to terminate an order of probation except in the manner provided by the statute. Later the Legislature empowered the court to create a probation department or to appoint a probation officer and to order a defendant placed on probation under the supervision of such probation officer. (110 Ohio Laws, 110; 111 Ohio Laws, 428.) See former Section 13709, General Code.

Section 13711, General Code (now Section 13452-7,, General Code), provided in part that:

“When the defendant is brought before the court or magistrate,”• (when it is claimed that he has violated the conditions of his probation) “such court or magistrate shall immediately inquire into the conduct of the defendant * * *.” •

It is clear from this history of the legislation dealing with the rights of a court to place on probation a defendant found guilty of a crime, or after he had plead guilty to a criminal charge, that, after such defendant was placed on probation, the order of probation could not be revoked except upon a hearing or ju*231dicial inquiry as to whether he had violated the terms of his probation.

Sue!i a rule is supported by the great weight of authority outside the state of Ohio.

In the case of *State*v. *Bonza,*106 Utah, 553, 150 P. (2d), 970, the defendant had been placed on probation under certain conditions, including the duty to make restitution and obey the laws of the state. During the term of probation an affidavit was filed with the court alleging that the defendant had been found guilty of petit larceny and that he also had burglarized a certain building. Upon hearing, the court terminated his probation, finding that the conditions' of his probation had been violated. The defendant contended that as to the charge of burglary he must be found guilty by a trial before such charge could be used against him on the question of his violation of the conditions upon which his probation was granted. The court found against him on this contention. The section of the Code of Utah under which probation was granted (Statute 105-36-17 U. C. A. 1943), provided in part:

“Upon conviction of any crime or offense, if it appears compatible with the public interest, the court having jurisdiction may suspend the imposition or the execution of sentence and may place the defendant on probation for such period of time as the court shall determine. The court may subsequently increase or decrease the probation period and may revoke or modify any condition of probation * *

The court, in concluding that the defendant was entitled to a hearing before his probation could be revoked, said (paragraph 11 of the opinion, page 559):

.“A defendant out of prison on probation is accorded due process of law by the following steps, all of which were followed in this case: (1) The filing of a verified statement or an affidavit in the case setting forth facts which show a violation of the terms of probation. (2) *232The issuance of an order to show cause and citation thereon requiring the defendant to appear and show cause why probation should not be revoked, apprising defendant of the ground or grounds on which revocation is sought, and specifying a proper time for hearing. (3) A hearing before the court on the question of violation of some term or condition of probation, at which the defendant has the opportunity to cross-examine witnesses against him and also to present evidence to refute the claimed violation of the conditions of probation. (4) A determination of the question, followed by entry of'an appropriate order. *State*v. *Zolantakis*[70 Utah, 296, 259 P., 1044, 54 A. L. R., 1463], *supra.”*

And the fourth paragraph of the headnotés is as follows: '

“4. Defendant must be given opportunity to be heard before revocation of probation. (Utah Code 1943, 105-36-17.)”

In the case of *State*v. *Smith,*196 N. C., 438, 146 S. E., 73, the defendant had been found guilty of slander and sentenced, the sentence being suspended and defendant placed on probation. Thereafter, the order of probation was revoked and defendant prosecuted error from such order. The Supreme Court of North Carolina, in the opinion, said:

“It does not appear from the record that the defendant was offered an opportunity in-open court to be heard upon the question as to whether he had violated the conditions upon which the original judgment was suspended. Neither is there evidence or finding of fact to the effect that any of said conditions had been violated. ’ ’

Thereupon the court sustained the defendant’s objections to the order appealed from, holding that where, on defendant’s conviction for slander, *capias*on *233the sentence was postponed on condition of defendant’s good behavior and engaging in regular occupation, a subsequent judgment, enforcing sentence without giving defendant an opportunity in open court for a hearing on the question of whether he had violated the conditions, and without evidence or finding as to a violation of the conditions, was unauthorized.

The order of the court in the instant case suspending the imposition of sentence upon the defendant and placing him on probation was as follows:

“Dec. 16, 1944. To court: The defendant herein having on a former day of this term entered a plea of guilty to the charge of the indictment in this case; was this day brought into court in custody of the sheriff; and the said defendant being inquired of if he had anything to say why judgment should not be pronounced against him and having nothing but what he hath already said: It is therefore ordered and adjudged by the court that imposition of sentence in this casq be and the same hereby'is suspended for a period of five (5) years and the defendant is placed on probation for the said period of five (5) years, under the supervision of W. B. Dillon, on conditions of good behavior etc.”

In the light of that entry, the general rules of the probation department were applicable, which in brief are, as disclosed by the transcript: To work regularly and when out of work to report such fact to the probation department; to live a clean life and keep away from undesirable places; to make reports at stated intervals to the department; not to leave the jurisdiction of the court without authority; and to follow all instructions of the probation officer. There is no evidence in the record that the defendant violated any of those provisions. The record discloses that the probation department did not participate in any inquiry *234nor did that department present any evidence of a failure of the defendant to comply with the terms of probation.

The determination of whether the defendant, by his conduct, violated the requirements of his probation is under Section 13452-7, General Code, to be determined by a “judicial inquiry.” The defendant must be afforded a reasonable opportunity to be heard. This does not require the formality of a trial but it does require the presentation of the facts in open court so that the court, in the exercise of sound discretion, may deal justly with the defendant.

It is the opinion of the majority of this court that the colloquy between the court and defendant, which makes up thé complete record of the case, did not constitute a judicial inquiry into the conduct of the defendant as required by Section 13452-7, General Code, and that the action of the court in ordering the original sentence into execution was a clear abuse of discretion.

The state has called our attention to the case of *In re Weber,*75 Ohio App., 206, 61 N. E. (2d), 502, as supporting the contention that the court. may *sua sponte*revoke the suspension of a sentence even during good behavior. The case is not in point because the court in that case was primarily concerned with the question of whether a writ of *habeas corpus*was the proper remedy to seek relief from claimed irregularities in the proceedings. It was there concluded that such a writ was not the proper remedy. The court does, on pages 207 and 208 of the opinion, give some consideration to the question of the court’s power to revoke a former probation order without an “inquiry” as provided by Section 13452-7, General Code. The court cites *Weber*v. *State,*58 Ohio St., 616, 51 N. E., 116, as the basis of its conclusion. That case, which was decided Before the chapter on probation became *235the law? of this state, held in the opinion on page 619 as follows:

“But when the suspension is without express conditions, as in this case, it is within the power of the court to set aside the suspension at any time during the same term, on its own motion, and to order the sentence to be executed.”

In the case here under consideration, there were express conditions upon which the defendant was afforded probation, and the order revoking probation was not in the same term of court. It is clear, therefore, that *Weber*v. *State, supra,*is not in point in the instant case when the facts are totally different and the statutes enacted since the date of such decision have completely modified the common-law rule.

For the foregoing reasons the judgment is reversed and the cause remanded for further proceedings according to law.

*Judgment reversed.*

Morgan, J., concurs.

Lieghley, J., dissents.