[Cite as State v. Slappey, 2013-Ohio-1939.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

MARION COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 9-12-58 

 v. 

KIMBALL CASEY SLAPPEY, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal 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 
Case No. 9-12-58 

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ROGERS, J. 

{¶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 R.C. 2925.11(A), 

(C)(4), a felony of the fifth degree, and two counts of tampering with evidence in 

violation of R.C. 2921.12(A)(1), a felony of the third degree. Each charged 

offense included a firearm specification. 

{¶3} In April 2008, the matter proceeded to a change of plea hearing. 

Pursuant to a negotiated plea agreement, the State moved to amend one of the 

counts for tampering with evidence to attempted tampering with evidence in 

violation of R.C. 2923.02 and R.C. 2921.12(A)(1), a felony of the fourth degree, 

and dismissed the remaining count of tampering with evidence. Thereafter, 

Slappey entered pleas of guilty to possession of cocaine, attempted tampering with 

evidence, and the attendant firearm specifications. 
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{¶4} In May 2008, the matter proceeded to sentencing. The trial court 

sentenced Slappey to a 12-month prison term for possession of cocaine, an 18-

month prison term for attempted tampering with evidence, and a mandatory oneyear prison term for the firearm specifications. The trial court ordered that each of 

the sentences be served consecutively to each other for an aggregate prison term of 

three years and six months. The trial court further ordered that Slappey be given 

129 days of jail-time credit. 

{¶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: 

1. I will obey all laws. 

2. I will report to my supervising probation officer whenever I am 

told to do so. 

* * * 

5. I will not change my address or phone number without prior 

approval of my supervising probation officer. 

* * * 

12. I will pay a $50.00 transfer of supervision fee to the Marion 

County Clerk of Courts if my supervision is transferred to another 
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county or state. The $50.00 fee will be due the month that my 

supervision is approved. I will obey all the conditions of the 

supervising department. 

* * * 

18. I will complete a drug and alcohol assessment within 30 days. 

* * * 

25. I will pay the following financial sanctions to the Marion 

County Clerk of Courts on or before the 5th day of each month: 

A. Court costs. * * * 

B. 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, McDuffie 

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 
Case No. 9-12-58 

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PO in violation of the fifth condition of his release; (4) he failed to pay the $50.00 

transfer fee in violation of the twelfth condition of his release; (5) he has not 

completed a drug and alcohol assessment in violation of the eighteenth condition 

of his release; and, (6) he has not made monthly payments on the court costs and 

attorney fees in violation of the twenty-fifth condition of his release. As a result of 

the alleged violations, the trial court issued an arrest warrant for Slappey. 

{¶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. 

 

1

 Though the amended notice alleged that Slappey committed the offense of breaking and entering, the 

State amended this allegation during the violation hearing to attempted breaking and entering. 
Case No. 9-12-58 

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{¶10} It is from this judgment that Slappey filed this timely appeal, 

presenting the following assignments of error for our review. 

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 have 

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, 
Case No. 9-12-58 

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11th Dist. No. 99-L-089 (June 16, 2000), citing Blakemore v. Blakemore, 5 Ohio 

St.3d 217, 219 (1983). 

{¶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-Ohio4891, ¶ 7. Instead, the state must present substantial evidence that the offender 

violated the conditions 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 Evid.R. 101(C)(3). “The rationale for the exception is that, since a * * * 

[violation] hearing is an informal proceeding, not a criminal trial, the trier of fact 
Case No. 9-12-58 

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should be able to consider any reliable and relevant evidence to determine whether 

the [defendant] has violated the conditions of his [supervision].” Id., citing

Columbus v. Bickel, 77 Ohio App.3d 26, 36 (10th Dist. 1991). However, hearsay 

evidence at a violation hearing can compromise the offender’s due process right to 

confront adverse witnesses. Id. Consequently, the introduction of hearsay 

evidence into a violation hearing can amount to reversible error when that 

evidence is the only evidence presented and is crucial in determining whether the 

defendant violated a condition of his or her release. Id., quoting State v. Ryan, 3d 

Dist. No. 14-06-55, 2007-Ohio-4743, ¶ 9.2

{¶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 

 

2

 Although this was a hearing to determine whether Slappey had violated the conditions of his judicial 

release rather than the conditions of community control or probation, this court has previously applied the 

same principles applicable to community control violation hearings to judicial release violation hearings. 

State v. Osborn, 3d Dist. No. 9-05-35, 2006-Ohio-1890. 
Case No. 9-12-58 

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the April 21, 2009 judgment entry granting his release, as well as any conditions 

the Michigan APA placed upon him. McDuffie further explained that she never 

directly spoke with Slappey’s supervising PO in Michigan, Betty Wyche, and that 

all communications concerning Slappey’s supervision in Michigan occurred via 

the Interstate Compact Offender Tracking System (“ICOTS”). 

{¶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

 

3

 We note that the record indicates that the State presented a copy of the Michigan judgment entry during 

the hearing and marked it as State’s Exhibit 2. However, the Michigan judgment entry is not in the record 

before us, nor is there any indication that the judgment entry was ever admitted into evidence. 
Case No. 9-12-58 

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{¶19} Slappey, offered the following version of events with respect to the 

alleged violations of the first condition. First, Slappey acknowledged that he 

submitted to a urine sample during his meeting with Wyche on February 10, 2010, 

and that Wyche informed him that the results indicated a light trace of THC. 

According to Slappey, Wyche indicated that she was not confident in the results, 

but nevertheless required him to attend 30 days of Narcotics Anonymous, which 

he completed. 

{¶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 could 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. 
Case No. 9-12-58 

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{¶21} Next, McDuffie testified that Slappey violated the second condition 

of his release, i.e., that he will report to his supervising PO when he is told to do 

so, as well as the fifth condition of his release, i.e., that he will not change his 

address and phone number without prior approval of his supervising PO. 

McDuffie testified that she received a violation report from the Michigan APA 

indicating that Slappey had not reported since April 28, 2010. Though Slappey 

reportedly did not make any further in-person visits to Wyche after April 28, 2010, 

McDuffie indicated that Wyche did have contact with him over the phone on 

several occasions between April 28, 2010 and June 18, 2010. As a result of his 

failure to report, the trial court issued a warrant for his arrest. McDuffie testified 

that she spoke with Slappey on one occasion after the warrant was issued, but 

could not recall the date. McDuffie indicated that she informed Slappey that there 

was a warrant for his arrest. 

{¶22} With respect to the alleged violation of the fifth condition of 

Slappey’s release, McDuffie testified that she 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 
Case No. 9-12-58 

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obtained a job in Flint, Michigan remodeling a beauty salon. Initially, Slappey 

commuted to Flint via a commuter bus, which took approximately three and a half 

hours each way. Due to the long commute, he decided to reside with a friend in 

Flint and informed Wyche of his intention. In response, Wyche requested Slappey 

to bring her proof of residency and employment. Though Slappey conceded that 

his last meeting with Wyche occurred on April 28, 2010, he testified that he went 

to her office on May 28, 2010 to deliver proof of residency and employment. 

Wyche, however, was not in the office so Slappey left the paperwork with 

someone in Wyche’s office. Several days later, while he was working in Flint, 

Slappey received a phone call from Wyche requesting proof of residency and 

employment. Slappey informed Wyche that he delivered the paperwork to her 

office several days earlier, but Wyche insisted that he physically place the 

paperwork in her hands within two hours. Slappey attempted to explain that it was 

impossible for him to meet Wyche’s demand because of his transportation 

situation, but Wyche chose not to accommodate Slappey. As a result, Slappey 

called McDuffie and explained his situation. McDuffie, however, was unable to 

offer any assistance. 

{¶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 
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a warrant for his arrest. Despite his awareness, Slappey testified that he never 

attempted to turn himself over to authorities. 

{¶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 confirmed 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 of 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. 
Case No. 9-12-58 

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{¶28} Contrary to McDuffie’s testimony, Slappey testified that he did 

complete a drug and alcohol assessment. Specifically, Slappey explained that he 

completed the assessment on February 8, 2010. 

{¶29} Upon consideration of the evidence 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, address 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 the 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. 
Case No. 9-12-58 

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Here, the record contains no evidence that McDuffie received a violation report 

concerning Slappey’s failure to complete the assessment, thus suggesting that 

Slappey may have completed the assessment. In light of the foregoing, we find 

that McDuffie’s testimony that she had no record of Slappey completing the 

assessment is not substantial evidence that Slappey violated the eighteenth 

condition 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 violated 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 convicted 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. 
Case No. 9-12-58 

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{¶32} Finally, there was substantial evidence that Slappey violated the 

twelfth and twenty-fifth conditions of his release. McDuffie testified that Slappey 

had not yet paid the transfer fee or the court costs and attorney fees, and further 

indicated that the clerk of courts, to whom such payments were to be remitted, had 

no record of Slappey paying any of the ordered costs or fees. Further, Slappey 

acknowledged that failing to pay the court costs and attorney fees “might have 

been [his] fault[.]” Sept. 4, 2012 Hearing Tr., p. 23. 

{¶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 seriousness 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. 
Case No. 9-12-58 

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Assignment of Error No. II

{¶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, 

Slappey 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} R.C. 2967.191 governs the reduction of a prison term for prior 

confinement, and provides, in relevant part, as follows: 

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 

where the prisoner is to serve the prisoner’s prison term.4

 

4

 This version of R.C. 2967.191 was in existence at the time Slappey’s judicial release was revoked. 
Case No. 9-12-58 

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Pursuant to R.C. 2967.191, a defendant is only entitled to jail-time credit for 

confinement that is related to the offense for which he or she is being sentenced. 

State v. Duaghenbaugh, 3d Dist. No. 16-09-05, 2009-Ohio-3823, ¶ 18, citing Pitts

at ¶ 16; State v. Brooks, 9th Dist. No. 05CA008786, 2006-Ohio-1485, ¶ 6. 

Accordingly, a defendant is not entitled to jail-time credit for any period of 

incarceration that arises from facts separate and apart from those on which the 

current sentence is based. Id., citing State v. Lynn, 3d Dist. No. 15-06-16, 2007-

Ohio-3344, ¶ 8. Likewise, a defendant is not entitled to jail-time credit for any 

period of incarceration in another jurisdiction that arises from facts separate and 

apart from those on which the current sentence is based. E.g., Eaton, 2005-Ohio3238, at ¶ 10-11. 

{¶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 because 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-
Case No. 9-12-58 

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time credit for the time he served in Michigan simply because his sentence in this 

matter caused the Michigan trial court to sentence him to prison as opposed to 

time served and two years’ probation. Aside from citing no authority to support 

his position, Slappey’s argument misses the point. The relevant inquiry in 

determining whether jail-time credit should be awarded is not whether the 

sentence in the present matter somehow affected the sentence in another matter, 

but whether the conviction and subsequent confinement, for which the defendant 

seeks credit, is factually related to the offense in the present matter. Here, it is 

manifestly clear that Slappey’s conviction for attempted breaking and entering 

bears absolutely no factual relation to his convictions in this matter. Rather, 

Slappey’s confinement in Michigan was solely based on his conviction for 

attempted breaking and entering, and therefore any time served in relation to that 

conviction cannot be credited towards his sentence in the present matter. As such, 

the trial court did not error when it failed to give Slappey jail-time credit for time 

served in Michigan 

{¶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. 

/jlr