COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68866 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION LOUIS WILLIAMS : : Defendant-appellant : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 12, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-246,801 JUDGMENT : REMANDED FOR RESENTENCING. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BLAISE D. THOMAS, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: DALE M. HARTMAN Attorney at Law 950 Leader Building Cleveland, Ohio 44114 PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the Cuyahoga County Court of Common Pleas and the briefs, with the oral arguments of counsel being waived. Louis Williams (hereinafter "appellant") appeals his sentence for trafficking in drugs following his guilty plea to that charge in the Cuyahoga County Court of Common Pleas on the basis that the court failed to advise him that he had a right to request condi- tional probation. The record reveals that appellant was indicted by the Cuya- hoga County Grand Jury, case number CR-246801, on three counts; viz, trafficking in drugs with violence specifications, R.C. 1 2925.03(A)(2), drug abuse with violence specifications, R.C. 2 2925.11, and possession of criminal tools with violence 1 R.C. 2925.03(A)(2) provides as follows: No person shall knowingly do any of the fol- lowing: * * * (2) Prepare for shipment, ship, transport, deliver, prepare for distribution or distri- bute a controlled substance, when the offender knows or has reasonable cause to believe the controlled substance is intended for sale or resale by the offender or another; *** 2 Drug abuse is prohibited under R.C. 2925.11, which provides that "[n]o person shall knowingly obtain, possess or use a con- trolled substance." R.C. 2925.11(A). - 3 - specifications, R.C. 2923.24. Appellant pled not guilty to the charges at his arraignment. Pursuant to a plea bargain, appellant later pled guilty to the charge of drug trafficking, including specifications, in exchange for the state's agreement to dismiss the two remaining counts of the indictment. After accepting appellant's guilty plea, the court found him guilty. Counsel for appellant requested that a probation report be prepared prior to sentencing. The court did not rule on this request. The court then proceeded to sentence appellant to a term of two to ten years of incarceration. The court ordered the sentence to run concurrent with the sentence appellant was serving on a prior conviction. I. Appellant assigns the following errors for this court's review: I. THE TRIAL COURT ERRED BY FAILING TO ADVISE DEFENDANT OF HIS RIGHT TO REQUEST CONDITIONAL PROBATION. II. SINCE DEFENDANT REQUESTED A PROBATION REPORT, THE COURT ERRED IN PROCEEDING TO SENTENCING WITHOUT FIRST HOLDING A HEAR- ING TO DETERMINE ELIGIBILITY FOR CONDI- TIONAL PROBATION PER R.C. 2951.04. III. THE TRIAL COURT ERRED BY FAILING TO INFORM DEFENDANT HE WAS INELIGIBLE FOR PROBATION THUS DESTROYING DEFENDANT'S ABILITY TO MAKE A VOLUNTARY, KNOWING AND INTELLIGENT CHOICE IN VIOLATION OF CRIM.R. 11. - 4 - We will address appellant's first and second assignments of error together. Appellant argues that the trial court erred by failing to advise him of his right to request conditional probation pursuant to R.C. 2951.04(A). R.C. 2951.04(A) provides: (A) If the court has reason to believe that an offender convicted of a felony *** is a drug dependent person or is in danger of becoming a drug dependent person, the court may, and when the offender has been convicted the court shall, advise the offender that he has a right to request conditional probation for purposes of treatment and rehabilitation. (Emphasis added.) Thus, only when the court has reason to believe a defendant convicted of a felony is drug dependent or is in danger of becom- ing drug dependent is it required to advise the defendant of his rights under R.C. 2951.04. State v. Riley (1993), 87 Ohio App.3d 420; State v. Pruitt (1984), 18 Ohio App.3d 50. The record of the sentencing indicates that the trial court did not inform appellant of his right to request conditional probation nor hold a hearing regarding his eligibility. Thus, we are presented with the question of whether the court had reason to believe appellant was drug dependent or in danger of becoming drug dependent. This court has stated in reference to R.C. 2951.04 that "[t]he statute places no limit on the way a reasonable belief may be engendered." State v. Pruitt, supra at 58. In State v. Riley, - 5 - supra, the court elaborated on this statement in Pruitt, stating that: We construe the eligibility portion of R.C. 2951.04(A) literally: any reason in the record to believe that an offender is or is in danger of becoming drug dependent compels the trial court to advise the offender of his right to request conditional probation. Whe-ther the trial court actually believes the reason is immaterial for purposes of R.C. 2951.04 so long as the reason is sufficient. *** A phrase like "reason to believe," that is susceptible of varying interpretation, must be construed in light of its contextual purpose. "Reason to believe that an offender *** is a drug dependent person" merely triggers an obligation on the part of the trial court to inform the offender of the right to request conditional probation. It is no guarantee that the offender will receive conditional probation. The burden upon the trial court is minimal. Consequently, the interpretation of what constitutes "reason to believe" should be minimal. (Emphasis added.) Appellant contends the court had reason to believe he was drug dependent based on the fact that he was charged with drug abuse. The state, on the other hand, insists that the record is devoid of facts which could lead the court to believe appellant was drug dependent or in danger of becoming drug dependent. Upon review of the record in this case, we find there was a reason for the trial court to believe appellant was, or was in danger of becoming, drug dependent. The fact that appellant was charged with drug abuse is minimally sufficient reason for the court to reach this belief. Further, by ignoring appellant's request for a presentencing investigation report, the court, in - 6 - effect, refused to consider whether there were any other factors in the appellant's background suggestive of a drug dependency. Because the trial court failed to advise appellant that he had a right to request conditional probation, and because appellant was not conclusively ineligible for conditional probation, the trial court erred by failing to so advise appellant at least before sentencing him. Moreover, it would be improper for this court to speculate on how the trial court might have exercised its discretion under R.C. 2951.02(B) and (D) had appellant made a request for conditional probation after having been advised of his right to do so. State v. Pruitt, 18 Ohio App.3d at 59. However, the provisions of R.C. 2951.04 are intended to mandate the trial courts to consider drug dependency or the likelihood of drug dependency and that an offender may benefit from treatment as factors in favor of placing an offender on probation or otherwise suspending a term of impri- sonment. R.C. 2951.02(B)(7). Appellant's first and second assignments of error are sus- tained. Based on the disposition of appellant's first and second assignments of error, the third assignment of error is moot. The trial court is further directed to determine the defen- dant's eligibility for conditional probation pursuant to R.C. 2951.04. - 7 - It is ordered that appellant recover of appellee his 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 Cuyahoga County Court of Common Pleas 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. PATRICIA BLACKMON, PRES. JUDGE JAMES M. PORTER, JUDGE TIMOTHY E. McMONAGLE, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .