State v. Gates

1

2022-Ohio-1666

STATE OF OHIO, Plaintiff-Appellee, v. MARK GATES, Defendant-Appellant.

No. 110616

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 19, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-20-652009-A

Judgment Affirmed in part, Reversed in Part, and Remanded

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Jamielle Lamson-Buscho, Assistant Prosecuting Attorney, for appellee.

The Law Office of Jaye M. Schlachet and Eric M. Levy, for appellant.

JOURNAL ENTRY AND OPINION

EMANUELLA D. GROVES, JUDGE

{¶ 1} Appellant, Mark Gates ("Gates"), appeals his convictions, assigning the following errors for review:

Assignment of Error No. 1

The trial court erred and abused its discretion when it only applied credit for jail time served to the misdemeanor conviction and not the concurrent felonies.

Assignment of Error No. 2

The trial court erred when it imposed a sentence upon appellant for count two, felonious assault, without accepting a plea of guilty.

Assignment of Error No. 3

Appellant's indefinite sentence imposed under the Regan [sic] Tokes sentencing scheme violates appellant rights under the United States constitution applied to the state of Ohio through the Fourteenth Amendment and the Ohio Constitution as it denies appellant due process of law; violates the Sixth Amendment right to a jury trial; violates the Separation of Powers Doctrine; does not provide fair warning of the dictates of the statute to ordinary citizens; and the statute conferred to [sic] much authority to the Ohio Department of Rehabilitation and Correction ("ODRC").

Assignment of Error No. 4

Appellant's sentence is contrary to law where the trail [sic] court failed to comply with the required notices contained in R.C 2929.19(B)(2)(c) when imposing sentence.

{¶ 2} For the reasons that follow, we affirm in part, reverse in part, and remand for a calculation of jail-time credit and for resentencing on Count 2 so that the court may give a proper advisement pursuant to R.C. 2929.19(B)(2)(c).

I. Factual and Procedural History

{¶ 3} Gates entered guilty pleas to resolve his criminal case so the factual basis for the convictions in the record is sparse.^[1] However, at a hearing evidenced in the transcript, Michelle Haas ("Haas") testified that she dated Gates for about 15 months. (Tr. 12.) They were no longer seeing each other in early July 2020. On July 19, 2020, at approximately 1:30 a.m., an incident occurred at the residence of John Hilde ("Hilde"), a person with whom Haas shares a child. (Tr. 82.) The altercation resulted in the hospitalization of Hilde with significant injuries.

{¶ 4} On August 11, 2020, a three-count indictment was filed charging Gates with aggravated burglary, a first-degree felony violation of R.C. 2911.11(A)(1); felonious assault, a second-degree felony violation of R.C. 2903.11(A)(1); and domestic violence, a first-degree misdemeanor violation of R.C. 2919.25(A). The case proceeded through several pretrials, discovery, and delays caused by the COVID-19 Pandemic. On May 12, 2021, the trial court held a change of plea hearing using video conferencing technology, to which no one objected. As part of a negotiated plea agreement, the state amended Count 1 from aggravated burglary to burglary, a fourth-degree felony violation of RC. 2911.12(B). Gates entered guilty pleas to amended Count 1 and the other two counts as charged in the indictment. Count 2, a second-degree felony, constituted a qualifying offense for an indefinite sentence under the Reagan Tokes Sentencing Law.

{¶ 5} A sentencing hearing commenced on June 23, 2021. After hearing from the state, Hilde, Gates and Gates' attorney, the court imposed an 18-month sentence on Count 1, a minimum sentence of 4 years on Count 2, and time served on Count 3. The court informed Gates that the indefinite sentence imposed on Count 2 had a maximum sentence of six years with a rebuttable presumption of release after four years. Gates objected to the imposition of an indefinite sentence. This timely appeal followed.

II. Law and Analysis

A. Jail-time Credit

{¶ 6} Gates argues, and the state concedes, that the trial court erred in applying credit for pretrial confinement to his misdemeanor conviction but not his felony convictions. Gates was sentenced to time served for his misdemeanor sentence The transcript and journal entry of sentence are otherwise silent on the trial court's calculation of jail-time credit At one point during the sentencing hearing, the trial court indicated that "Count 1 and Count 2 will run concurrent to one another" (Tr 89) The journal entry of sentence states the same However, this does not mean that Count 3 must be served consecutive to these counts Gates's argument in his brief focuses on the assertion that the trial court's sentence on the misdemeanor constitutes a consecutive sentence However, concurrent sentences are the default. State v. Hitchcock, 157 Ohio St.3d 215, 2019-Ohio-3246, 134 N.E.3d 164, ¶ 21. Unless an exception applies, a failure to state that sentences are to be served consecutive to each other generally means that they are presumed concurrent. State v. Simmons, 8th Dist. Cuyahoga No. 107144, 2019-Ohio-459, ¶ 17.

{¶ 7} Gates has not pointed to anything in the record that supports the proposition that sentences were imposed consecutively or that the trial court misapplied jail-time credit. This is because nowhere in the record does the trial court actually calculate and apply jail-time credit.^[2] This alone constitutes error.

{¶ 8} Pursuant to R.C. 2929.19(B)(2)(g)(i), "[i]t is the duty of the trial judge to determine the amount of jail-time credit to which a prisoner is entitled." State v. Williams, 8th Dist. Cuyahoga No. 105903, 2018-Ohio-1297, ¶ 14, citing State ex rel. Rankin v. Ohio Adult Parole Auth., 98 Ohio St.3d 476, 2003-Ohio-2061, 786 N.E.2d 1286, ¶ 7. This information must be present in the sentencing entry so the ODRC can properly apply credit to any prison sentence. Id. See also R.C. 2929.19(B)(2)(g)(i), 2949.12, and 2967.191. The failure to do so constitutes plain error. Id. at ¶ 15. This may be corrected by filing a motion with the trial court or on direct appeal. State v. Thompson, 8th Dist. Cuyahoga No. 102326, 2015-Ohio-3882, ¶ 23; R.C. 2929.19(B)(2)(g)(iii). A jail sentence of "time served" does not obviate a trial court's duty to calculate jail-time credit where prison sentences are also imposed. R.C. 2929.19(B)(2)(g)(i) gives clear direction to a court to calculate jail-time credit any time a prison sentence is imposed.

{¶ 9} Therefore, we remand this case to the trial court to calculate and apply jail-time credit, if appropriate, notify Gates of the result of that calculation, and issue a new sentencing entry setting forth the amount of credit, if any. This assignment of error is sustained.

B. Acceptance of Guilty Pleas

{¶ 10} Gates claims that the trial court failed to properly accept a guilty plea on Count 2, felonious assault. Gates continues to argue that any plea to this count must be construed as not guilty and the trial court erred in imposing a sentence on a count where a valid guilty plea or finding of guilty does not exist.

{¶ 11} The trial court started off the change-of-plea hearing listing the charges: "[t]he defendant has been indicted in a three-count indictment. Count 1, aggravated burglary, a felony of the first degree in violation of 2911.11(A)(1). Count 2 is felonious assault, felony of the second degree in violation of 2903.11(A)(1). Count 3, domestic violence, a misdemeanor of the first degree in violation of 2919.25(A)." (Tr. 44.) After a thorough Crim.R. 11 plea colloquy, where the trial court personally advised Gates of the rights he was giving up by pleading guilty and inquiring if Gates understood those rights, the following exchange occurred on the record,

THE COURT: All right. Based upon the statements of the prosecuting attorney and your lawyer, I believe it is your intention to plead guilty to an amended indictment. I believe it's your intention to plead guilty to amended Count 1, amending it to burglary in violation of 2911.12(B), making it a felony of the fourth degree. Is that your understanding?

THE DEFENDANT: Yes, Your Honor.

THE COURT: And that you will be pleading guilty to Count 2, felonious assault, a felony of the second degree which would be subject to Reagan Tokes, and do you understand that?

THE DEFENDANT: Yes, Your Honor, I do understand.

THE COURT: Okay. And Count 3, domestic violence, a misdemeanor of the first degree in violation of 2919.25(A). Do you understand that?

THE DEFENDANT: Yes, Your Honor.

(Tr. 50-51.)

{¶ 12} The court then went through the potential penalties Gates faced, the intricacies of a minimum and maximum sentence required by the Reagan Tokes Law, as well as postrelease control, restitution, and other penalties. The court then stated,

So, Mr. Gates, how do you plead to Count 1 as it's been amended. It's been amended to burglary, a felony of the fourth degree in violation of 2911.12(B). How do you plead?

THE DEFENDANT: Guilty.

THE COURT: I do accept your plea of guilty to Count 1 as it's been amended and I find you guilty thereon.

How do you plead to Count 2, Count 2 as indicted, felonious assault, a felony of the second degree in violation of 2903.11(A)(1), how do you plead?

THE DEFENDANT: Guilty.

THE COURT: And Count 3, domestic violence, a misdemeanor of the first degree in violation of 2919.25(A), how do you plead?

THE DEFENDANT: Guilty.

THE COURT: Okay. Thank you. I accept your plea of guilty to Count 3 as it's been charged and indicted and I find you guilty thereon.

(Tr. 58-59.) The plea colloquy quoted above demonstrates that Gates pled guilty...