COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74435 CITY OF SHAKER HEIGHTS : ACCELERATED DOCKET : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION CHARLES HAIRSTON : : PER CURIAM : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 10, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Shaker Heights Municipal Court, No. 95-CRB-09205. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Gary R. Williams, Esq. Prosecutor, Shaker Heights Lisa M. Gale, Esq. Assistant Prosecutor Shaker Heights City Hall 3400 Lee Road Shaker Heights, OH 44120 For Defendant-Appellant: Charles C. Hairston, pro se 6111 Butler Avenue Cleveland, OH 44127 PER CURIAM: Defendant-Appellant, Charles Hairston, appeals the order of the Shaker Heights Municipal Court granting appellant's motion to -2- revoke his probation and ordering him to serve fifteen days in jail. Appellant asserts that the trial court erred in granting his motion without a hearing, increasing his sentence beyond that originally imposed, not crediting him with time served towards his fifteen-day sentence and denying him work release while he was serving his jail time. The facts pertinent to the issues in this appeal are as follows. On April 10, 1995, appellant was charged with domestic violence in violation of Shaker Heights Codified Ordinance S737.14. Appellant entered a plea of no contest to the charged offense, and on June 12, 1995, the court sentenced appellant to forty-five days in jail, a $600 fine, active probation for eighteen months and attendance at a program on domestic violence. The trial court suspended $300 of the fine and the entire jail term upon the condition that appellant was not convicted of a similar type offense during the probation period. On August 7, 1995, appellant completed payment of the $300 fine. On October 27, 1995, however, appellant failed to report for his scheduled appointment with the probation department and the trial court charged him with contempt. On August 2, 1996, appellant appeared in court and pled not guilty to the contempt charge. The trial court found appellant guilty and referred him to the probation department for recommencement of his probation. On November 14, 1996, appellant wrote to the trial court judge about the problem that his ongoing probation status was creating with his employment. Appellant explained that his job installing -3- and repairing furnaces required him to work long, odd hours that often conflicted with his probation reporting schedule. Appellant stated that he would be fired if he continued to leave his job to report for probation and that he had discussed this situation with his probation officer, but they were unable to agree on a solution. Appellant stated that unless other arrangements could be made, he would be willing to serve the forty-five days in jail as originally sentenced. The court did not respond to appellant's letter. On May 17, 1997, appellant was again charged with contempt for failing to report for a regularly scheduled probation appointment. On December 12, 1997, appellant entered a plea of not guilty to the contempt charge. After a bench trial on February 2, 1998, the trial court found appellant guilty of contempt and sentenced him to fifteen days in jail and a $25 fine. The trial court suspended the jail time on the condition of six months of active probation during which time appellant was required to report once a month. Included in the trial court's journal entry was the notation: Probation Department to work with defendant to accommodate defendant's work schedule. On March 30, 1998, appellant filed a motion to revoke his probation, asking the court to revoke its order of probation and activate the jail time imposed. In his motion, appellant argued that the probation department was unwilling to comply with the court's order dated February 2, 1998 and that this noncompliance was placing an undue hardship on him that would likely result in violation of his probation. Appellant also asserted that he would -4- likely be fired from his job if he adhered to the reporting schedule established by the probation department because he would have to leave his job with work undone in order to report. According to appellant, if he was fired, he could then be charged with violation of his county probation, which required him to maintain full-time employment, and if found guilty, he could be sentenced to serve two to ten years in prison. Accordingly, appellant requested that he be allowed to serve the fifteen days in jail, during which time his employer would hold his job for him. Appellant noted that the court had the option of considering work release in lieu of jail time but he did not specifically request it. Appellant requested that the court hold a hearing on his motion so he could present evidence of a conflict of interest between himself and the Probation Department and other misinformation of which the court may be unaware. (Emphasis in original.) On April 6, 1998, the trial court granted appellant's motion without hearing and journalized the following entry: Defendant's request to terminate active probation reporting and instead serve 15 days jail is granted. Defendant ordered to report for jail 4/17/98 to serve for 15 days and the costs of jail at $65.00 per day to be paid by Defendant as additional fine. Defendant must still do DV program if not completed at this time, fine payment etc. Probation to go inactive. On April 6, 1998, the trial court also signed a Commitment Order, which stated, in pertinent part: -5- Whereas, Charles Hairston, has been arrested on oath and complaint of Domestic Violence 737.14 and before said municipal court on such charge has been found guilty, and sentenced to pay a fine of $__ and to be imprisoned by Shaker Hts. Police Dept. at Shaker Hts. Jail or Bedford Heights Hts. Jail for a term of 15 days. Said Defendant has been confined for 0 days, and therefore has 15 days remaining to be served. On April 7, 1998, the trial court journalized an entry ordering appellant to do time ordered on 4/6/98 at Bedford Heights City Jail. Appellant served the fifteen-day sentence, paid the $25 fine and then timely appealed. Appellant assigns the following assignments of error for our review: I. THE TRIAL COURT ERRED IN REVOKING DEFENDANT-APPELLANT'S PROBATION WITHOUT A HEARING, THEREBY DENYING HIM DUE PROCESS OF LAW. II. THE TRIAL COURT ERRED BY INCREASING DEFENDANT-APPELLANT'S SENTENCE BEYOND THAT WHICH WAS ORIGINALLY ADJUDGED, THEREBY SUBJECTING HIM TO DOUBLE JEOPARDY. III. THE TRIAL COURT ERRED IN NOT CREDITING DEFENDANT-APPELLANT WITH JAIL TIME CREDIT TOWARD SERVICE OF HIS SENTENCE. IV. THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT ANY OPPORTUNITY FOR WORK RELEASE. Appellant's first, third and fourth assignments of error all relate to the imposition of appellant's 15-day jail term. In his first assignment of error, appellant argues that the trial court erred in revoking his probation and imposing the fifteen-day sentence without first holding a hearing because the minimum -6- requirements of due process require notice and a hearing before a court can revoke probation. See Morrissey v. Brewer (1972), 408 U.S. 471; Gagnon v. Scarpelli (1972), 411 U.S. 778. In his third assignment of error, appellant asserts that the trial court erred in not crediting him with time already served toward his fifteen-day sentence. Appellant alleges that prior to reporting to Bedford Heights City Jail to serve the fifteen-day sentence, he had been incarcerated in the Shaker Heights Jail from April 10, 1995--April 12, 1995; July 31, 1996--August 2, 1996 and December 8, 1997--December 12, 1997 and in the Cuyahoga County Jail from January 16, 1996--July 31, 1996. Appellant alleges that all of these periods of incarceration were related to this case and, therefore, he was entitled to credit for time already served. In his fourth assignment of error, appellant asserts that the trial court erred in denying him work release while he was serving his fifteen-day sentence. Appellant contends that the trial court's journal entry granting his motion to revoke his probation did not specifically grant or deny his request for work release, but the Jail Time Record form, signed by his probation officer, indicated that appellant was not eligible for work release. Appellant argues that although the availability of work release is a discretionary decision for the trial court, in this case it appears that the probation officer, rather than the court, exercised that discretion. Regardless of the merit or lack thereof of these assignments of error, these alleged errors are now extinct because this court -7- has no power to remedy them. Appellant voluntarily served the fifteen-day jail term imposed by the trial court when it granted his motion for revocation of his probation. Accordingly, a reversal on any of these grounds could not remedy these alleged errors and they are therefore moot. In his second assignment of error, appellant argues that the trial court imposed an additional sentence beyond what was originally imposed, thus placing him in jeopardy twice for the same offense.1 Specifically, appellant argues that the court's order dated April 6, 1998 granting his motion to revoke his probation improperly ordered that he also pay an additional fine of $65 per day for the costs of his incarceration, and that he complete a program on domestic violence. Appellant argues that this fine and requirement of rehabilitative therapy were improper because they were in addition to the sentence that was originally imposed for his contempt conviction. As an initial matter, we note that there is nothing in the record to indicate that appellant made this objection to the trial court. It is well established that an appellate court is not required to consider an error which a complaining party could have, but did not, call to the attention of the trial court. State v. Lancaster (1976), 25 Ohio St.2d 83, 86. Crim.R. 52(B) provides, however, that [p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the 1 Appellant apparently alleges violation of the Double Jeopardy Clause of Article I, Section 10 of the Ohio Constitution and the Fifth Amendment to the United States Constitution. -8- attention of the court. Thus, a reviewing court has discretion to review errors not raised below in cases of plain error or where the rights and interests involved may warrant it. Hill v. City of Urbana (1997), 79 Ohio St.3d 130, 133-134. Because a claim of double jeopardy involves a fundamental right, this court will address the merits of appellant's claim. The record reflects that on April 10, 1995, after finding appellant guilty of domestic violence, the trial court ordered appellant to attend a program on domestic violence as part of his sentence. On April 6, 1998, when the trial court granted appellant's motion to revoke his probation and imposed the fifteen- day suspended jail sentence, the trial court ordered that appellant must still do DV program if not completed at this time. This order was clearly nothing more than a reference to the sentence originally imposed upon appellant upon his conviction for domestic violence. Thus, appellant's argument that this ruling by the trial court was an additional sentence is incorrect. The trial court's order that appellant pay the costs of jail at $65.00 per day *** as additional fine, however, was improper. On February 2, 1998, the trial court found appellant guilty of contempt and sentenced him to fifteen days in jail and a $25 fine. All of the jail time was suspended on the condition of six months of active probation during which time appellant was to report one time per month. When the trial court granted appellant's motion to revoke his probation, however, it not only ordered him to serve the -9- fifteen days in jail as originally sentenced, it also ordered him to pay $65 per day as additional fine. Plaintiff-appellee, the City of Shaker Heights, argues that notwithstanding the trial court's additional fine language, R.C. 2929.223 authorizes a trial court to order a defendant to contribute to the costs of his confinement. R.C. 2929.223(A) provides, in pertinent part, that: If a judge in any jurisdiction in which the appropriate authority or board requires an offender (of) an offense other than a minor misdemeanor to reimburse the costs of confinement *** then after that person's release from imprisonment, the judge *** shall hold a hearing to determine the amount of the reimbursementand whether the offender has the ability to pay the reimbursement and the amount the person is able to pay. This section clearly requires that the court hold a hearing before it may require reimbursement for costs of confinement. In addition, the hearing is to be held after the defendant's release from imprisonment. Here, not only did the trial court impose the $65 per day fee prior to appellant's incarceration, it did not hold a hearing. Moreover, the trial court's journal entry makes it clear that the trial court imposed the reimbursement requirement as an additional fine, and not as an effort to recoup costs. The double jeopardy clause protects from multiple prosecutions and punishments for the same offense. North Carolina v. Pearce (1969), 395 U.S. 711, 717. Accordingly, the trial court's order imposing the $65 per day additional fine is unconstitutional and, therefore, reversed. -10- Furthermore, we note that because of inconsistencies in the record, it is difficult to determine whether the fifteen days that appellant spent in the Bedford Heights City Jail were for his contempt conviction or his domestic violence conviction. On February 2, 1998, the trial court sentenced appellant to fifteen days in jail and a $25 fine on his contempt conviction, and then suspended the jail time on the condition of six months of active probation. On March 30, 1998, when appellant filed his motion to revoke probation, he asked to serve the fifteen-day sentence in order to eliminate the ongoing problem that probation reporting was causing with his employment. Appellant's assumption appears to have been that the fifteen-day jail sentence replaced the forty- five day sentence on his domestic violence conviction. In the journal entry dated April 6, 1998 granting appellant's motion, however, the trial court ordered appellant to serve the fifteen days in jail and placed him on inactive probation. Thus, this entry appears to order fifteen days jail time on appellant's contempt charge and inactive probation on his underlying domestic violence conviction. The difficulty with this interpretation of the journal entry, however, is that the Commitment Order dated April 6, 1998 states that the fifteen-day jail sentence is for appellant's domestic violence conviction, not his contempt conviction. Furthermore, the trial court referenced the Commitment Order in its April 7, 1998 journal entry ordering appellant to serve his time at the Bedford Heights City Jail. -11- We emphasize that the proper procedure for punishing an offender for violation of probation is that governed by R.C. 2951.09, not a contempt hearing. State v. Louden (Oct. 24, 1997), Champaign App. No. 97-CA-05, unreported. Accordingly, we construe the Commitment Order as the trial court's way of terminating the original forty-five day sentence on the domestic violence charge and imposing a fifteen-day sentence. Appellant served the fifteen- day sentence and paid the $25 fine as ordered. Therefore, we order any inactive probation terminated and appellant discharged. -12- This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court 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. TERRENCE O'DONNELL, PRESIDING JUDGE TIMOTHY E. McMONAGLE, JUDGE JAMES D. SWEENEY, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 .