State v. Richardson

2021 Ohio 1342

State of Ohio Appellee v. Benjamin L. Richardson Appellant

Court of Appeals No. WD-19-091

COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

April 16, 2021

Trial Court No. 2018CR0589

DECISION AND JUDGMENT

Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.

W. Alex Smith, for appellant.

OSOWIK, J.

{¶ 1} Appellant, Benjamin Richardson, appeals the judgment of the Wood County Court of Common Pleas, convicting him of one count of receiving stolen property, and one count of identity fraud, and sentencing him to a total of 24 months in prison. For the reasons that follow, we affirm.

{¶ 2} On appeal, appellant presents one assignment of error for our review:

I. Mr. Richardson did not receive all of the pre-trial confinement credit to which he was entitled.

Background

{¶ 3} On December 5, 2018, appellant was arrested pursuant to a warrant issued out of Perrysburg Municipal Court on a charge of identity fraud. Appellant appeared before the court that day, and bond was set at $8,000. Appellant was held in custody until the next hearing on December 13, 2018, at which appellant was released on his own recognizance.

{¶ 4} The case was then bound over to the Wood County Grand Jury, which ultimately entered a four-count indictment charging appellant with one count of theft in violation of R.C. 2913.02(A)(1) and (B)(2), a felony of the fifth degree, one count of receiving stolen property in violation of R.C. 2913.51(A) and (C), a felony of the fifth degree, and two counts of identity fraud in violation of R.C. 2913.49(B)(1) and (I)(2), felonies of the fifth degree.

{¶ 5} A hearing for arraignment was continued until such time as appellant was apprehended. On April 25, 2019, the trial court entered an order to transport appellant from the Lucas County Jail for an arraignment hearing on May 10, 2019. At the arraignment hearing, appellant entered an initial plea of not guilty, and the trial court set bond at $40,000. A further pretrial conference was held on May 31, 2019. The recordshows that appellant was transferred from the Lucas County Jail to the Wood County Justice Center for both the May 10 and May 31, 2019 hearings.

{¶ 6} A change of plea hearing was held on September 27, 2019, at which appellant withdrew his initial plea of not guilty, and entered a plea of guilty to one count of receiving stolen property and one count of identity theft. In exchange, the remaining counts were dismissed. Again, the record shows that appellant was transferred from Lucas County to Wood County for the change of plea hearing.

{¶ 7} Sentencing was held on November 15, 2019. At the sentencing hearing, the trial court ordered appellant to serve 12 months in prison on each count, and ordered the counts to be served consecutively for a total prison term of 24 months. Notably, the issue of jail-time credit was not discussed at the sentencing hearing, but the trial court's sentencing entry awarded appellant 11 days of jail-time credit pursuant to R.C. 2967.191.

Analysis

{¶ 8} In his assignment of error, appellant argues that the trial court erred when it did not award him jail-time credit for the time that he was incarcerated in the Lucas County Jail. Appellant asserts that he was confined in the Lucas County Jail from April 8, 2019, to January 23, 2020, under a cash bond for an alleged probation violation. He contends that he was also being held under the $40,000 cash bond set by the trial court in the present case. Thus, he concludes that because he was being held by both jurisdictions, he should receive jail-time credit in both jurisdictions. As applied to the present case, appellant argues that he is entitled to jail-time credit from December 5through December 13, 2018, and from May 10 through November 15, 2019. We disagree.

{¶ 9} R.C. 2967.191(A) provides, in relevant part, "The department of rehabilitation and correction shall reduce the 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."

{¶ 10} "It is clear under the statute that [a defendant] is entitled to credit for time confined 'arising out of the offense for which he was convicted and sentenced.' [A defendant] is not entitled to credit for time served in another jurisdiction for another offense." State ex rel. Croake v. Trumbull Cty. Sheriff, 68 Ohio App.3d 245, 247, 587 N.E.2d 978 (11th Dist.1990), citing State v. Dawn, 45 Ohio App.2d 43, 340 N.E.2d 421 (1st Dist.1975), State ex rel. Moss v. Subora, 29 Ohio St.3d 66, 505 N.E.2d 965 (1987). Here, during the pendency of the present case, appellant was being held in Lucas County on a separate offense. Thus, he is not entitled to have his time spent in pretrial confinement under the Lucas County case applied to the present case. See State v. Eaton, 3d Dist. Union No. 14-04-53, 2005-Ohio-3238 (defendant not entitled to have time spent in pretrial confinement in a Franklin County case credited to his sentence in a contemporaneous Union County case). Therefore, we hold that the trial court did not errwhen it only awarded 11 days of jail-time credit for the time that appellant was actually confined in Wood County for the present offenses.¹

{¶ 11} Accordingly, appellant's assignment of error is not well-taken.

Conclusion

{¶ 12} For the foregoing reasons, the judgment of the Wood County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J.

Thomas J. Osowik, J.

CONCUR.

Gene A. Zmuda, P.J.

CONCURS AND WRITES

SEPARATELY.

/s/_________

JUDGE

/s/_________

JUDGE

/s/_________

JUDGE

ZMUDA, P.J.

{¶ 13} While I agree with the majority that there is no basis to reverse the trial court's judgment, I write separately to address the lack of a sufficient record to determine whether appellant is entitled to any additional jail-time credit and to note disagreement with the majority's analysis and application of law. Appellant was arrested and charged in two jurisdictions. In Wood County, appellant was held in the present case from December 4 through 13, 2018, and then released on his own recognizance. An indictment issued on February 21, 2019, charging appellant with four counts arising froman incident at Owens Community College. On February 15, 2019, appellant was indicted for a similar incident at University of Toledo Medical Center (UTMC).

{¶ 14} Appellant failed to appear for his arraignment in the present case, resulting in a capias warrant. As noted by the majority, appellant alleges he was arraigned first in Lucas County, for the UTMC incident, followed by arraignment in the present case. A bond was set in both jurisdictions, and appellant argued he remained in custody in the Lucas County facility pending trial in both cases. Appellant contends that he was also held on an alleged probation violation from April 8, 2019, to January 23, 2020, but there is nothing in the record regarding a holder in the record on appeal. On November 19, 2019, the trial court imposed sentence in the present case. Appellant indicates that the Lucas County trial court imposed its sentence on January 18, 2020, again without anything in the record to support the contention.

{¶ 15} Appellant filed a motion in the trial court in the present case, seeking 289 days of jail-time credit for time spent awaiting disposition from May 10 through November 15, 2019, pursuant to R.C. 2929.19(B)(2)(g)(iii), which grants a trial court continuing jurisdiction to address jail-time credit. The trial court denied the motion, deeming oral argument "waived or found to be unnecessary." Appellant appealed.

{¶ 16} The majority, in affirming the trial court's judgment, relies on R.C. 2967.191(A), governing the reduction of a prison term by the ODRC based on the number of days credited by the trial court, along with authority pertaining to pretrial confinement occurring at the same time an individual is held after sentencing in anothercase. See State ex rel. Croake v. Trumbull Cty. Sheriff, 68 Ohio App.3d 245, 247, 587 N.E.2d 978 (11th Dist.1990) ("a defendant is not entitled to credit for time served pursuant to a prior conviction in another jurisdiction towards a later, totally unrelated conviction where such prior conviction was reversed."); State v. Eaton, 3d Dist. Union No. 14-04-53, 2005-Ohio-3238 (defendant not entitled to credit for time spent incarcerated, post-sentence, in another county for an unrelated offense). Neither authority clearly applies in this case, based on the record on appeal.

{¶ 17} First, while the trial court did order consecutive sentences in this case, there is nothing in the record regarding a subsequent, Lucas County sentence, also ordered to be served consecutive to appellant's Wood County sentence, as the Lucas County record is not part of the record on appeal. More importantly, there is also nothing within the record indicating appellant was serving a sentence at the same time he was held in lieu of bond, awaiting trial in the present case and in the Lucas County case arising from the UTMC incident. At most, the information within the presentence investigation report indicates appellant was "incarcerated" on a probation violation at the Lucas County Correctional Center, a facility used to hold defendants in custody while awaiting trial.

{¶ 18} "[T]he Ohio Constitution and statutes require that prisoners receive credit for 'all time spent in any jail prior to trial and commitment.'" (Emphasis sic.) State v. Bryant, 10th Dist. Franklin No. 19AP-241, 2020-Ohio-363, 151 N.E.3d 1096, ¶ 26, quoting State v. Fugate, 117 Ohio St.3d 251, 2008-Ohio-856, 883 N.E.2d 440, ¶ 7, quoting Workman v. Cardwell, ...