STATE OF OHIO, PLAINTIFF-APPELLEE, v. KIMBALL CASEY SLAPPEY, DEFENDANT-APPELLANT.
CASE NO. 9-12-58
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
May 13, 2013
[Cite as State v. Slappey, 2013-Ohio-1939.]
Aрpeal from Marion County Common Pleas Court Trial Court No. 08-CR-025
Judgment Affirmed
Date of Decision: May 13, 2013
APPEARANCES:
Robert C. Nemo for Appellant
Brent Yager and Denise M. Martin for Appellee
{¶1} Defendant-Appellant, Kimball Slappey, appeals the judgment of the Court of Common Pleas of Marion County revoking his judicial release. On appeal, Slappey contends that the trial court abused its discretion when it revoked his judicial release, and erred when it did not give him any jail-time credit for time served in relation to a criminal offense he committed in Michigan. For the reasons that follow, we affirm the trial court‘s judgment.
{¶2} This matter originated in January 2008, when the Marion County Grand Jury entered a three count indictment against Slappey. Slappey was charged with one count of possession of cocaine in violation of
{¶3} In April 2008, the matter proceeded to a change of plea hearing. Pursuant to a negotiated plea agreemеnt, the State moved to amend one of the counts for tampering with evidence to attempted tampering with evidence in violation of
{¶5} In March 2009, Slappey filed a motion for judicial release. On April 21, 2009, the trial court filed its judgment entry granting Slappey‘s motion for judicial release. The trial court ordered that Slappey be “placed on three (3) years of community control sanctions, subject to the supervision of the Adult Probation Department[.]” (Docket No. 58, p. 1). The trial court further ordered that Slappey comply with the following relevant conditions during the term of his release:
- I will obey all laws.
- I will report to my supervising probation officer whenever I am told to do so.
* * *
- I will not change my аddress or phone number without prior approval of my supervising probation officer.
* * *
- I will pay a $50.00 transfer of supervision fee to the Marion County Clerk of Courts if my supervision is transferred to another
* * *
- I will complete a drug and alcohol assessment within 30 days.
* * *
- I will pay the following financial sanctions to the Marion County Clerk of Courts on or before the 5th day of each month:
- Court costs. * * *
- Attorney fees. * * *
Violation of any of the above sanctions shall lead to a more restrictive sanction, a longer sanction, or reimposition of the original prison term of 3-1/2 years. (Id., at p. 1-2).
{¶6} On January 22, 2010, the trial court granted the transfer of Slappey‘s supervision to the Adult Parole Authority in Highland Park, Michigan (“Michigan APA“).
{¶7} On September 16, 2010, Nancy McDuffie, Slappey‘s probation officer (“PO“) in Marion County, filed a notice of supervision violations. McDuffie alleged that Slappey violated six conditions of his release. Specifically, MсDuffie alleged that (1) Slappey consumed controlled substances on or about February 10, 2010, in violation of the first condition of his release; (2) he has not reported to his supervising PO since April 28, 2010, in violation of the second condition of his release; (3) he has changed his address without prior approval from his supervising
{¶8} On July 27, 2012, McDuffie filed an amended notice of supervision violations. In addition to the allegations set forth in the original notice, McDuffie alleged that Slappey committed the offense of breaking and entering in Flint, Michigan on or about September 30, 2011, in violation of the first condition of his release.1
{¶9} A hearing to determine whether Slappey violated the conditions of his judicial release (“violation hearing“) took place on July 30 and September 4, 2012. At the conclusion of the hearing, the trial court found that Slappey had violated the first, second, fifth, twelfth, eighteenth, and twenty-fifth conditions of his release. As a result, the trial court revoked Slappey‘s judicial release and re-imposed his original sentence of three years and six months. The trial court further ordered that Slappey be given 544 days of local jail-time credit.
Assignment of Error No. I
THE TRIAL COURT ABUSED ITS DISCRETION BY REVOKING APPELLANT‘S JUDICIAL RELEASE.
Assignment of Error No. II
THE TRIAL COURT ERRED IN NOT GIVING APPELLANT CREDIT FOR ANY OF THE TIME THAT HE SERVED IN MICHIGAN FOR THE OFFENSE OF ATTEMPTED BREAKING AND ENTERING.
Assignment of Error No. I
{¶11} In his first assignment of error, Slappey contends that the trial court abused its discretion when it revoked his judicial release. We disagree.
{¶12} A trial court‘s decision finding a violation of judicial release will not be disturbed on appeal absent an abuse of discretion. State v. Westrick, 196 Ohio App.3d 141, 2011-Ohio-1169, ¶ 22 (3d Dist.). A trial court will be found to hаve abused its discretion when its decision is contrary to law, unreasonable, not supported by the evidence, or grossly unsound. See State v. Boles, 2d Dist. No. 23037, 2010-Ohio-278, ¶ 16-18, citing Black‘s Law Dictionary 11 (8 Ed.Rev.2004). When applying the abuse of discretion standard, a reviewing court may not simply substitute its judgment for that of the trial court. State v. Nagle,
{¶13} A violation hearing is not a criminal trial, so the state is not required to establish a violation of the conditions of judicial release beyond a reasonable doubt. Westrick at ¶ 21; State v. Thomas-Baker, 3d Dist. No. 9-11-03, 2011-Ohio-4891, ¶ 7. Instead, the state must present substantial evidence that the offender violated the conditiоns of his or her judicial release. Id. “Substantial evidence” is akin to a preponderance-of-the-evidence burden of proof. State v. Griffeth, 5th Dist. No. 10-CA-115, 2011-Ohio-4426, ¶ 29, citing State v. Ohly, 166 Ohio App.3d 808, 2006-Ohio-2353, ¶ 18 (6th Dist.). Although a violation hearing is not a criminal trial, the hearing must comport with the requirements of due process. Westrick at ¶ 23, citing Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756 (1973). The minimum due process requirements for violation hearings include, but are not limited to, the offender having the right to confront and cross-examine adverse witnesses. Id., citing State v. Miller, 42 Ohio St.2d 102, 104 (1975), citing Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593 (1972).
{¶14} Furthermore, violation hearings are not subject to the rules of evidence, thus allowing for the admission of hearsay evidence. Westrick at ¶ 24; See
{¶15} Bearing this authority in mind, we turn our attention to the evidence adduced during the violation hearing.
{¶16} McDuffie testified that she is employed with the Marion County Adult Probation Department (“MCAPD“), and serves as Slappey‘s PO. According to McDuffie, Slappey was granted judicial release on April 21, 2009. After his release, Slappey requested that his supervision be transferred to Highland Park, Michigan. The trial court granted his request and his direct supervision was transferred from the MCAPD to the Michigan APA. McDuffie explained that despite the transfer, Slappey was still required to follow the conditions set forth in
{¶17} According to McDuffie, Slappey violated the first condition of his release, i.e., that he will obey all laws, on two separate occasions. First, McDuffie testified that she received a violation report from the Michigan APA indicating that Slappey tested positive for marijuana on February 10, 2010. According to the violation report, the positive result was obtained via a urine screen conducted at the probation office in Michigan, and that further laboratory testing was not conducted on the same urine sample due to budget constraints.
{¶18} As for the second violation, McDuffie testified that on or about September 30, 2011, she received a violation report from the Michigan APA indicating that Slappey had been charged with breaking and entering. McDuffie acknowledged that she was unaware of the facts surrounding the charge, but testified that she was aware that Slappey pleaded to a reduced charge of attempted breaking and entering.3
{¶20} With respect to his conviction for attempted breaking and entering, Slappey offered the following explanation. In 2011, he purchased several residential properties in Flint, Michigan, with the intention of renovating and renting the properties. In order to complete the renovations, Slappey needed some toilets. However, Slappey was unable to purchase the toilets due to a shortage of funds. According to Slappey, a friend informed him that he сould find some toilets in a condemned residence, which was scheduled for demolition. Following his friend‘s advice, Slappey went to the condemned residence and attempted to take the toilets. Slappey, however, was arrested as he attempted to remove the toilets from the condemned residence. He was eventually convicted of attempted breaking and entering and testified that he was sentenced to serve a nine-month prison term.
{¶22} With respect to the alleged violation of the fifth condition of Slappey‘s release, McDuffie testified that shе became aware of the violation when she learned that Slappey had informed Wyche that he had moved from Highland Park, Michigan to Flushing, Michigan, without obtaining prior approval for the move.
{¶23} Slappey, offered the following explanation with respect to the alleged violations of the second and fifth conditions. In early 2010, Slappey
{¶24} On cross-examination, Slappey testified that he last reported on May 28, 2010, when he delivered his proof of residency and employment. Slappey further acknowledged that as of September 28, 2010, he was aware that there was
{¶25} Next, McDuffie testified that Slappey violated the twelfth condition of his release, i.e., that he pay the $50.00 transfer fee, as well as the twenty-fifth condition of his release, i.e., that he pay court costs and attorney fees. According to McDuffie, Slappey has not paid the $50.00 transfer fee or any of his court costs or attorney fees. McDuffie further indicated that she checked the clerk of courts’ records immediately prior to the hearing and cоnfirmed that Slappey has not paid the $50.00 transfer fee or any of his court costs or attorney fees.
{¶26} Slappey, on the other hand, testified that McDuffie directed him to remit his payments to the Michigan APA, not the MCAPD. As a result, Slappey explained that he made payments to the Michigan APA. However, Slappey acknowledged that nonpayment of “the court costs and attorney fees * * * might have been [his] fault[.]” Sept. 4, 2012 Hearing Tr., p. 23.
{¶27} Finally, McDuffie testified that Slappey violated the eighteenth condition оf his release, i.e., that he complete a drug and alcohol assessment within 30 days. McDuffie testified that she determined the violation occurred because she has no record that Slappey completed a drug and alcohol assessment.
{¶29} Upon consideration of the evidencе presented during the violation hearing, we find that the record contains substantial evidence that Slappey violated the first, second, fifth, twelfth, and twenty-fifth conditions of his release. Notably, however, we do not find that the record contains substantial evidence that Slappey violated the eighteenth condition of his release. Though our finding with respect to the eighteenth condition does not materially affect the outcome of our decision, we will, for purposes of completeness, аddress why we do not find that the record contains substantial evidence that Slappey violated this condition.
{¶30} The only basis upon which the trial court could have found that Slappey violated the eighteenth condition of his release was McDuffie‘s testimony that she had no record of Slappey completing an alcohol and drug assessment. Under the circumstances of this matter, however, McDuffie‘s testimony cannot be considered substantial evidence that Slappey did not complete thе assessment. Slappey testified that he completed the assessment. Further, and perhaps more importantly, there is no evidence that McDuffie would have been notified that Slappey completed the assessment. In fact, the evidence suggests that McDuffie was notified of occasions when Slappey violated the conditions of his release.
{¶31} Turning our attention to the remaining conditions of Slappey‘s release, we begin by noting that Slappey suggests that the record does not contain substantial evidence that he violatеd the first, second, and fifth conditions of his release because McDuffie lacked firsthand knowledge of those violations. While we agree that McDuffie‘s testimony concerning these violations constituted hearsay, this fact is not fatal to the trial court‘s determination that Slappey violated the first, second, and fifth conditions of his release. Slappey‘s own testimony established that he violated the first, second, and fifth conditions of his release. In particular, Slappey testified that he was convictеd of attempted breaking and entering, in violation of the first condition, that he stopped reporting to his supervising PO after May 28, 2010, in violation of the second condition, and changed his address without prior approval of his supervising PO, in violation of the fifth condition. Accordingly, we find that the record contained substantial evidence that Slappey violated the first, second, and fifth conditions of his release.
{¶33} Although the record contains substantial evidence that Slappey violated the first, second, fifth, twelfth, and twenty-fifth conditions of his release, he, nevertheless, maintains that the trial court abused its discretion when it revoked his release. In particular, Slappey relies on the positive things that he has accomplished during his release, which include, but are not limited to, caring for his disabled mother, getting married, working, and volunteering as an assistant basketball coach. While these actions are laudable (if proven), we are not convinced that they overcome the number and seriоusness of Slappey‘s violations, in particular his conviction for attempted breaking and entering and his failure to report. As such, we find that the trial court did not abuse its discretion when it revoked Slappey‘s release.
{¶34} Accordingly, we overrule Slappey‘s first assignment of error.
{¶35} In his second assignment of error, Slappey contends that the trial court erred when it did not give him any jail-time credit for time served in relation to his conviction for attempted breaking and entering in Michigan. Specifically, Slapрey maintains that but for his conviction and sentence in the present matter he would not have been sentenced to prison in Michigan. As a result, Slappey argues that his sentence in this matter should be reduced by the time he served in Michigan. We disagree.
{¶36} “The Adult Parole Authority has the duty to grant jail time credit, however, ‘the trial court has the duty to properly calculate the number of days to be credited.‘” State v. Pitts, 3d Dist. No. 1-06-106, 2007-Ohio-5197, ¶ 15, quoting State v. Eaton, 3d Dist. No. 14-04-53, 2005-Ohio-3238, ¶ 9.
{¶37}
The department of rehabilitation and correction shall reduce the stated prison term of a prisoner * * * by the total number of days that the prisoner was confined for any reason arising out of the offense for which the prisoner was convicted and sentenced, including confinement in lieu of bail while awaiting trial, confinement for examination to determine the prisoner‘s competence to stand trial or sanity, and confinement while awaiting transportation to the place wherе the prisoner is to serve the prisoner‘s prison term.4
{¶38} During the violation hearing, Slappey offered testimony concerning his sentence for attempted breaking and entering. Slappey testified that the state recommend a sentence of “53 days credit and two years probation.” Sept. 4, 2012, Hearing Tr., p. 14. According to Slappey, the trial judge was amenable to the recommended sentence, but sentenced him to a nine-month prison term bеcause he committed the underlying offense while he was on judicial release in this matter.
{¶39} In spite of the purported effect Slappey‘s sentence in this matter had on his sentence in Michigan, Slappey is not entitled to any jail-time credit for the time he served in Michigan. Slappey‘s argument suggests that he be given jail-
{¶40} Accordingly, we overrule Slappey‘s second assignment of error.
{¶41} Having found no error prejudicial to Slappey herein, in the particulars assigned and argued, we affirm the trial court‘s judgment.
Judgment Affirmed
PRESTON, P.J. and WILLAMOWSKI, J., concur.
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