COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71035 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION TINA JONES : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : JUNE 19, 1997 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 309069 JUDGMENT : Affirmed in part and reversed in part. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Mark J. Mahoney, Esq. John B. Gibbons, Esq. Asst. County Prosecutor 2000 Standard Building 1200 Ontario Street 1370 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- ROCCO, J.: Appellant appeals from the trial judge's determination finding appellant to be a probation violator and also the trial judge's calculation of jail time credit due appellant. As there is sufficient evidence to support the trial judge's determination that appellant is a probation violator, this matter is affirmed in part. However, as the trial judge failed to properly credit appellant with time served, this matter is remanded for the limited purpose of re-calculating the number of days to which appellant is entitled to credit on her current sentence. On May 19, 1994, appellant was indicted on a three count indictment: Count One, Robbery with Specifications, in violation of R.C. 2911.02, Count Two, Drug Abuse, in violation of R.C. 2925.11, and Count Three, Possession of Criminal Tools, in violation of R.C. 2923.24. On July 20, 1994, appellant pled guilty to an amended Count One, Attempted Robbery. The court thereafter dismissed Counts Two and Three. Appellant was sentenced on August 23, 1994, to five to ten years of incarceration at Marysville. Appellant filed a motion for supershock probation pursuant to R.C. 2947.061 on March 27, 1995. The trial court granted the motion on October 19, 1995. The trial court then placed appellant on three years probation. On February 14, 1996, appellant appeared before the trial court for a probation violation hearing, following a urine test wherein appellant tested positive for cocaine. Appellant stated -3- that she "didn't think [she] had a dirty urine", although she admitted to having touched cocaine that week. A representative from the Cuyahoga County Probation Department, Brenda Boyd, testified as to the procedure used by the urine lab to seal the urine samples that they obtain. Ms. Boyd did admit that she was not trained to perform the test, did not actually observe the test, nor had any personal knowledge as to whether the test conformed with ordinary protocol. However, Ms. Boyd acknowledged that Cuyahoga County has a policy whereby a urine monitor will monitor the individual giving the sample so that there is no question as to whose sample was being tested. Additionally, appellant's tests showed positive for cocaine at both an initial screening and a confirmation test. The trial court found appellant to be a probation violator, and sentenced her to five to ten years of incarceration. The judge gave appellant credit for the three days she had served in County Jail prior to her probation violation hearing. The court refused to credit appellant for the time she had served after her initial sentence on August 23, 1994, and before her motion for supershock probation had been granted, on October 19, 1995. ASSIGNMENTS OF ERROR This court will address appellant's assignments of error in logical order. Appellant's second assignment of error states: THE TRIAL COURT ERRED IN FINDING APPELLANT TO BE A PROBATION VIOLATOR. -4- Appellant contends that her rights to due process were violated when the trial court determined that she was a probation violator following the February 14, 1996 hearing. Crim.R. 32.3(A) provides: Revocation Hearing. The court shall not revoke probation except after a hearing at which the defendant shall be present and apprised of the grounds on which such action is proposed. The defendant may be admitted to bail pending such hearing. The probation hearing must contain the "minimum requirements of due process", particularly: (a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses ***; (e) a 'neutral and detached' hearing body ***; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation or] parole. Gagnon v. Scarpelli (1973), 411 U.S. 778, 786; quoting Morrissey v. Brewer (1972), 408 U.S. 471, 489. Specifically, appellant maintains that the trial court failed to provide her with a written statement of the evidence and the reasons which he relied upon when he revoked appellant's probation. In State v. Delaney (1984), 11 Ohio St.3d 231, 234, the trial court failed to provide to the defendant a written statement of the evidence relied on and the reasons for revoking defendant's probation. However, on the record, and directed towards the defendant, the trial judge orally stated his findings and reasons for revoking the defendant's probation. Id. The court stated: -5- [a]lthough we do not condone the use of oral "explanations" in lieu of written statements detailing the basis for the trial court's determination in revocation proceedings, we find that, in this case, the trial court's statement sufficiently informed the appellant of the reasons for which his probation was being revoked, while also providing an adequate record for review on appeal. See United States v. Rilliet (C.A. 9, 1979), 595 F. 2d 1138; Howe v. Commonwealth (1981), 222 Va. 625, 283 S.E. 2d 197; State v. Harris (La. 1979), 368 So. 2d 1066; Pearson v. State (1976), 308 Minn. 287, 241 N.W. 2d 490. Id. at 235. The court thus determined that the trial court had not deprived the defendant of his due process rights. Id. In the matter, sub judice, the record indicates that the trial judge sufficiently explained to appellant the reasons for which her probation was being revoked, and also provided an adequate record for appeal. The judge explicitly noted that she had tested positive for an illegal substance. Further, Ms. Boyd testified that a condition of appellant's probation was that appellant would give regular urine samples, and that on January 31, 1996, both the initial test and the confirmation test indicated appellant was positive for cocaine. Appellant also argues that the evidence presented at the hearing was insufficient to justify the court's determination. At the hearing, appellant denied using cocaine; although she did acknowledge that she had "handled some within that week". Additionally, Ms. Boyd admitted that she was neither present when appellant gave her urine sample, nor did she observe the tests or the results. However, Ms. Boyd did testify that Cuyahoga County uses a monitor to ascertain that the defendant whose name is on the -6- sample has actually given the sample, and that the sample was screened initially and then retested. In appellant's case, both tests showed positive for cocaine. There is sufficient evidence in the record to support the judge's determination that appellant tested positive for cocaine; thereby violating her probation. The record also reveals that the trial judge orally explained the evidence and the reasons on which he relied when he determined that appellant was a probation violator, and revoked appellant's probation. Appellant's second assignment of error is overruled. Appellant's first assignment of error states: THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT CREDIT FOR TIME SERVED IN PRISON PRIOR TO THE GRANTING OF HER MOTION FOR SUPERSHOCK PROBATION. Appellant contends that she is entitled to credit for the prison time that she served between her August 23, 1994 sentencing and the granting of her motion for supershock probation on October 19, 1995. The state argues that appellant was sentenced on February 14, 1996 as a probation violator, and thus, only the three days that she served on that particular charge need be credited. R.C. 2967.191 states: The adult parole authority shall reduce the minimum and maximum sentence or the definite sentence of a prisoner by the total number of days that the prisoner was confined for any reason arising out of the offense for which he was convicted and sentenced ***. The Adult Parole Authority (hereinafter APA) has the duty to "grant credit", but the trial court has the duty to properly "calculate" the number of days for which the APA grants credit. State v. -7- Gregory (1995), 108 Ohio App.3d 264, 267. The trial court must calculate the correct time to be credited, and that number must be included in the sentencing entry. Id. The court is required, pursuant to Crim.R. 32.3(D), to forward to the institution or custodian, a statement of the number of days of confinement to which the defendant is entitled by law to have credited to the minimum and maximum sentence. The calculation of credit is separate and subsequent to sentencing, and is not open to tailoring to the individual case in the same manner as sentencing. Id. at 268. The sentence has already been rendered, thus the calculation is merely a computation of how much time has been served, and how much time remains. Id. The court calculate credit for any time of incarceration that arises "out of the offense for which [the defendant] was convicted and sentenced." Id. (Emphasis in original.) In State v. Smith (1992), 71 Ohio App.3d 302, the defendant was incarcerated on a prior misdemeanor criminal conviction. He was later sentenced on a completely unrelated charge of breaking and entering. Id. That court held that the defendant was not entitled to credit for the time he had served in the misdemeanor action, as that sentence did not arise out of the breaking and entering offense. Id. The determination as to whether a defendant is a probation violator has been held to be a separate action with a different scope of inquiry. See State v. Martin (1978), 56 Ohio St.2d 207, 210. However, there is no separate sentence which may be imposed -8- on a probation violator. R.C. 2951.09 merely authorizes a trial court to revoke shock probation that had been granted pursuant to R.C. 2947.061, and to impose a term of incarceration that is not greater than the original sentence. See State v. Draper (1991), 60 Ohio St.3d 81. While the action itself may be separate, the court's decision to impose the original sentence necessarily "aris[es] out of the offense for which [she] was convicted and sentenced". For if there was no underlying action, appellant would not be on probation and would not be a probation violator, and there would be no original sentence to impose. Furthermore, when the trial judge imposed appellant's initial sentence of five to ten years without crediting appellant for the time she served before her motion for supershock probation was granted, he essentially imposed a longer sentence than he had originally. The sentence would more accurately be five to ten years plus the time she had already served. Thus the sentence the trial judge imposed at her probation violation hearing would be a violation of both State v. Draper, supra, and R.C. 2929.11(B)(3), which sets ten years as the maximum penalty for an aggravated felony of the third degree. Appellant's first assignment of error is well-taken. The trial court is ordered to re-calculate the statement of time to be credited to appellant's current sentence, to add the number of days appellant had served on her initial sentence, before she was granted supershock probation, to the three days appellant had served prior to the probation violation hearing. -9- This matter is affirmed in part and reversed in part for the limited purpose of allowing the trial court to correct the statement of appellant's credited jail time. -10- It is ordered that appellee recover of appellant its 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 Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, P.J., AND JOHN T. PATTON, J., CONCUR. JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .