[Cite as State v. Bowden , 2015-Ohio-3740.]

Criminal Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is: Affirmed in Part, Sentence Vacated in Part, and Cause Remanded Date of Judgment Entry on Appeal: September 16, 2015

Joseph T. Deters , Hamilton County Pros ecuting Attorney, and Sean M. Donovan
, Assistant Prosecuting Attorney, for Plaintiff-Appellee, Michael J. Trapp , for Defendant-Appellant.

Please note: this case has been removed from the accelerated calendar. 

## IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, Plaintiff-Appellee,

vs. CHRIS BOWDEN, Defendant-Appellant. :

:

:

:

: APPEAL NO. C-140462 TRIAL NO. B-1301865-B

O P I N I O N.O HIO F IRST D ISTRICT C OURT OF A PPEALS

2 C UNNINGHAM , Presiding Judge. 

### {¶1} Defendant-appellant Chris Bowden challenges the trial court’s judgment revoking his community-control sanction and imposing sentences of imprisonment. He also argues that the court’s award of jail-time credit was inadequate. Because the trial court did not accurately determine the number of days that Bowden was confined for these offenses, we vacate that part of his sentence, and
we remand the cause to the trial court fo r the proper calculation of the jail-time
credit. 

### {¶2} In April 2013, Bowden was arrested for the armed robbery of two
individuals. He remained in custody until March 2014, when he was released on his own recognizance. Bowden then entered pleas of no contest to two counts of aggravated robbery. The trial court accepted the pleas and imposed sentence, including three-year terms of community control for each count, and intensive supervision by the probation office. At the sentencing hearing, the trial court clearly
notified Bowden that the terms of comm unity control would include a 9:30 p.m. curfew, that he would be “vio lat[ed] for the slightest infrac tion,” and that if Bowden violated the terms of community control, th e court would impose an 11-year term of imprisonment. The trial court’s judgment entry repeated the curfew and slightestinfraction admonitions and ordered regular reporting to his probation officer. 

### {¶3} Two weeks later, just after midnight on May 9, 2014, Cheviot police officers, responding to a report that youths in a car were aiming a laser-pointing device at passersby, arrested Bowden. He was found with a baggie of marijuana and a digital scale in his pants pocket. Two handguns, one with a laser sight, were found in the vehicle. Bowden was charged with aggravated menacing, carrying a concealed handgun, having a weapon under a disability, and possession of marijuana and drug paraphernalia.O HIO F IRST D ISTRICT C OURT OF A PPEALS

3 

### {¶4} As a result of these events, community-control-sanction violations were filed against Bowden. At a probable-cause hearing, the trial court highlighted that
Bowden’s criminal behavior had been committed after the curfew. At the revocation hearing, the arresting police officer and Bowden’s prob ation officer testified.
Bowden and his mother made statements to the court. The tr ial court then found
Bowden in violation of the terms of his co mmunity-control sanctions, including that Bowden had violated the curfew and had failed to report to his probation officer. 

### {¶5} The trial court revoked the co mmunity-control sanctions and imposed concurrent, ten-year terms of impr isonment for each count of aggravated robbery. Bowden appealed. 

### {¶6} In his first assignment of error, Bowden asserts that the trial court erred in finding that he had violated the terms of his community control. He first argues that the trial court denied him du e process of law by failing to give him
written notice that he stood accused of violating the 9:30 p.m. curfew provisions of community control. The written notice of community-control violations, filed before the probable-cause hearing, alleged only th at Bowden had failed to conduct himself properly by being arrested fo r additional offenses, and that he had failed to report to his probation officer. 

### {¶7} Crim.R. 32.3(A) provides that a tr ial court may not impose a prison term for a community-control violation “except after a hearing at which the defendant shall be present and apprised of the grounds on which action is proposed.” Thus a person subject to community control may be punished for violating its terms only if certain due-process rights are observed. See Gagnon v. Scarpelli , 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); see also State v. King , 1st Dist. Hamilton No. C-010330, 2002-Ohio-373, ¶ 8 (a cknowledging that the due-process requirements that had been applied to prob ation-revocation hearings also applied to community-control-violation hearings). Among the defendant’s due-process rightsO HIO F IRST D ISTRICT C OURT OF A PPEALS

4 to be observed are th at the trial court must hold a preliminary, or probable-cause hearing, and it must provide wr itten notice of the alleged vi olations to the offender at that hearing. See Gagnon at 786; see also State v. Thompson , 1st Dist. Hamilton Nos. C-140746 and C-140747, 2015-Ohio-2836, ¶ 6. 

### {¶8} The probable-cause hearing is th e trial court’s inquiry into the defendant’s conduct, the validity of the te rms allegedly violated, and the reasonable grounds for the violation. See id . Its purpose is simply “to prevent [a defendant’s] unjust imprisonment pending the revoca tion hearing,” at which the ultimate
determination of whether a violatio n has occurred will be reached. State v.
Henderson , 62 Ohio App.3d 848, 853, 577 N.E.2d 710 (1st Dist.1989). 

### {¶9} Because of the probable-cause hearing’s limited purpose, this court has long held that a defendant’s failure to object timely to irregularities in the probable-cause hearing forfeits any error, save plain error. See id . (holding that a defendant’s failure to raise irregularities until the revocation hearing waived error); see also State v. Ferreira, 6th Dist. Lucas No. L-06-128 2, 2007-Ohio-4902, ¶ 10;
State v. Allen , 8th Dist. Cuyahoga No. 86684, 2006 -Ohio-3163, ¶ 13 (applying waiver
to the failure to receive wr itten notice of violations); see generally State v. Payne
, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E. 2d 306, ¶ 23 (describing the failure to preserve an objection as “forfeiture,” not “waiver,” and applying plain-error analysis under Crim.R. 52(B)). 

### {¶10} Here, the trial court orally advise d Bowden of the alleged curfew violation. Bowden failed to object to the lack of written notice. Instead, he defended
his conduct. He denied that a violation ha d occurred, telling the trial court that he had been detained by Cheviot police before the curfew time, “probably 8:30 or 9:30 exact, sir.” 

### {¶11} Bowden failed subsequently to object to the proceedings or to seek a continuance before the revocation hearing be gan 15 days later. At the revocationO HIO F IRST D ISTRICT C OURT OF A PPEALS

5 hearing, he did not attempt to demonstrate that he had been prejudiced by the lack
of written notice. Bowden did not contest that he had been out after the curfew. Rather, he explained that he had been trying to obtain a ride home from friends when apprehended. The record does not demonstrate plain error or any manifest miscarriage of justice requiring reversal. See Crim.R. 52(B); see also State v. Rogers
, Slip Opinion No. 2015-Ohio-2459, ¶ 3. 

### {¶12} Next Bowden claims that the trial court erred in finding that Bowden had violated the terms of his community-control sanction. In order to establish a community-control violation, the state must present substantial evidence that the
defendant violated the terms of his community control. State v. McCants , 1st Dist. Hamilton No. C-120725, 2013-Ohio-2646, ¶ 11; see State v. Dockery , 187 Ohio App.3d 798, 2010-Ohio-2365, 933 N.E.2d 1155, ¶ 10 (1st Dist.). “Substantial evidence has been defined as being more than a scintilla of evidence, but less than a preponderance.” McCants at ¶ 11. 

### {¶13} Here, the state presented unrebutte d evidence that two weeks after being sentenced to community control, Bowden was arrested by Cheviot police well after curfew and was charged with aggravated menacing, carrying a concealed handgun, having a weapon under a disability, and possession of marijuana and drug paraphernalia. Bowden’s probation officer testified that Bowden was notified to report and that he had failed to do so. Bowden ultimately acknowledged that he had received notice, and had intended to report, but that he had forgotten to contact the probation office. Therefore, the trial court’s finding that Bowden had violated the terms of his community control was supported by substantial evidence, and will not be disturbed on appeal. See id. at ¶ 11; see also Dockery at ¶ 10. The first assignment of error is overruled. 

### {¶14} Bowden’s next assignment of error, in which he argues that the trial court erred in revoking his community-control sanction for “a minor rule infraction,” is also without merit. R.C. 2929.15(B)(1 ) provides the trial court “a great deal ofO HIO F IRST D ISTRICT C OURT OF A PPEALS

6 latitude in sentencing the offender ” for community-control violations. State v.
Brooks , 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, ¶ 20; see Dockery at ¶ 13. Before a reviewing court can vacate or modify the sanction imposed for a violation, it must clearly and convincingly find that the sentence is contrary to law. See R.C. 2953.08(G)(2); see also State v. Bohannon, 1st Dist. Hamilton No. C-130014, 2013-Ohio5101, ¶ 5. 

### {¶15} Under R.C. 2929.15(B)(1), the trial court may impose a longer time under the same sanction, a more restrictive sanction, or a prison term pursuant to R.C. 2929.14. When the trial court chooses to impose a prison term, R.C. 2929.15(B)(2) provides that it “shall be within the range of prison terms available for the offense for which the sanction that was violated was imposed and shall not exc eed the prison term specified in the notice provided to the offender at the sentencing hearing * * * .” 

### {¶16} The trial court provided notice at the original sentencing hearing that it would impose the maximum, 11-year prison sentence for each count for “the slightest infraction” of the terms of community control. Two weeks later, Bowden was arrested and charged with serious offenses. He admitted that he had not reported to his probation officer. The concurrent, ten-year prison terms ultimately imposed for each count of aggravated robbery were within the statutory range of sentences for first-degree felonies, and did not exceed the terms specified in the notice. R.C. 2929.14(A)(1) and 2929.15(B)(2). Accordingly, the prison terms imposed by the trial court for violations of the April 2014 community-control sanction comply with the requirements of R.C. 2929.15(B), and are not contrary to law. See R.C. 2953.08(G). The second assignment of
error is overruled. 

### {¶17} In his final assignment of error, Bowden asserts the trial court miscalculated his jail-time credit by awar ding him only 37 days. Bowden contends that he should have been awarded 407 days of jail-time credit. Jail-time credit is prescribed by R.C. 2967.191, which authorizes a trial court to give a defendant creditO HIO F IRST D ISTRICT C OURT OF A PPEALS

7 for the total number of days that he was “confined for any reason arising out of the
offense for which he was convicted and sent enced.” The trial court is required to determine the appropriate amount of jail-tim e credit and include it in the sentencing entry. See R.C. 2929.19(B)(2)(g); Ohio Adm.Code 5120-2-04(B). 

### {¶18} The trial court’s failure to properly award jail-time credit is an error cognizable on direct appeal. State v. Hargrove , 1st Dist. Hamilton No. C-120321, 2013-Ohio-1860, ¶ 8; see State v. Morgan , 1st Dist. Hamilton No. C-140416, 2014- Ohio-5325, ¶ 5 and 12 (holding that once a notice of appeal has been filed in a case, a trial court loses jurisdiction to correct jail-time-credit errors). When a trial court fails to include the appropriate amount of ja il-time credit in the sentencing entry, it commits plain error. Hargrove at ¶ 9. A reviewing court may modify or vacate the trial court’s jail-time-credit computation if it clearly and convincingly finds that the awarded credit is contrary to law. See R.C. 2953.08(G)(2)(b); see also Hargrove at ¶

8. 

### {¶19} The record in this case demonstrates a great deal of confusion in the trial court surrounding the actual numb er of days that Bowden had been incarcerated. In April 2014, the trial court accepted Bowden’s no-contest pleas and imposed community cont rol. At the conclusion of the sentencing hearing, Bowden inquired of the trial court whether he would be given credit for the “year I have been in.” The court responded “Yea h. If you’re violated you will get credit for all time
served.” 

### {¶20} When the trial court found that Bowd en had violated the terms of the community-control sanctions, Bowden was represented by new defense counsel. At the conclusion of the hearing to determ ine the sentence to be imposed for the violations, the trial court inquired, “Okay. How much time served does he have?” 

### {¶21} Bowden’s counsel, presumably referring to Bowden himself, responded, “He says 37 days.” The court answered, “37 days. OK. Anybody elseO HIO F IRST D ISTRICT C OURT OF A PPEALS

8 want to say anything?” The trial court’s sentencing entry reflected the total jail-time credit awarded as 37 days. 

### {¶22} Bowden argues on appeal that he had been incarcerated on these charges for 364 days starting on April 1, 2013, before being released, and that the trial court had failed to include credit for that period. The earliest reference to
Bowden’s incarceration in the record is the warrant on the indictment, which indicates that Bowden was in the custody of the Hamilton County sheriff no later than April 10, 2013. Bowden was released from the Hamilton County Justice Center, on his own recognizance, on March 25, 2014, some 349 days later. He was arrested on the community-control violation on May 9, 2014. The probation officer’s notice of violations states that a “probation holder” had been placed on Bowden on May 19, 2014—38 days before the sentencing hearin g at which the trial court awarded jailtime credit. 

### {¶23} Here, the record reflects that Bowden served an undetermined, but very substantial, period of pretrial confinement. There is no indication that Bowden was being held on other charges. Before imposing sentence, the trial court had told Bowden that he would be given credit for his nearly one-year period of incarceration
if he violated the terms of his communit y-control sanction. When that violation occurred, and without any other inquiry, the trial court accepted Bowden’s own statement that he had been incarcerated for only 37 days. It is highly likely that Bowden was referring only to the period of time that he had been incarcerated after his May 9, 2014 arrest in Cheviot, and not to his entire period of incarceration. 

### {¶24} On these facts, we cannot say th at the trial court accurately determined the number of days that Bowden had been confined. See R.C. 2929.19(B)(2)(g). We thus cl early and convincingly find that the awarded credit is contrary to law. See R.C. 2953.08(G)(2)(b). Moreover, the error in the calculation ofO HIO F IRST D ISTRICT C OURT OF A PPEALS

9 his jail-time credit arose to the level of plain error. Thus, we sustain the third assignment of error. 

### {¶25} Accordingly, we vacate Bowden’s sentence in part, and we remand the cause for the proper calculation of the jail-time credit only. The trial court’s judgment is affirmed in all other respects. Judgment affirmed in part, sentence vacated in part, and cause remanded.

D E W INE and M OCK , JJ., concur. Please note: The court has recorded its own entry on the date of the release of this opinion.