Cleveland v. Bolger , 2022 Ohio 128 ( 2022 )

[Cite as Cleveland v. Bolger, 2022-Ohio-128.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CITY OF CLEVELAND, :
Plaintiff-Appellee, :
No. 110769
v. :
JASON BOLGER, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: VACATED IN PART AND REMANDED
RELEASED AND JOURNALIZED: January 20, 2022
Criminal Appeal from the Cleveland Municipal Court
Case No. 2021 CRB 002797
Appearances:
Barbara A. Langhenry, Cleveland Director of Law,
Aqueelah Jordan, Chief Prosecutor, and Aric Kinast,
Assistant City Prosecutor, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, for
appellant.
MARY EILEEN KILBANE, J.:
Defendant-appellant Jason Bolger, Jr. (“Bolger”) appeals from the
trial court’s judgment denying Bolger 20 days of jail-time credit because he was in
medical isolation within the county jail and placing Bolger on community-control
sanctions.
After review of the record and the relevant case law, we find the trial
court’s decision was in error and, therefore, remand this matter with instructions to
vacate in part and modify the July 22, 2021 journal entry in accordance with this
opinion.
Factual and Procedural History
On March 23, 2021, Bolger was arrested and charged in a three-count
complaint with domestic violence, aggravated menacing, and unlawful restraint.
Bolger remained in custody until June 9, 2021, when the parties reached a plea
agreement. Bolger pleaded guilty to unlawful restraint, a misdemeanor of the third
degree, and the other counts were nolled. The trial court released Bolger from jail
on a personal bond after Bolger spent 71 days in jail, from March 30, 2021, through
June 9, 2021. During his 71 days in jail, Bolger spent 20 days in medical isolation.
At the sentencing hearing on July 22, 2021, Bolger requested 71 days
of jail-time credit. The trial court denied jail-time credit for the 20 days when Bolger
was “held in medical isolation” because neither the court nor his attorney could
communicate with Bolger. Tr. July 22, 2021, p. 2-3. Despite defense counsel’s
request, Bolger received only 51 days’ jail-time credit. Further, the trial court
sentenced Bolger to 60 days’ incarceration at the Cleveland House of Corrections
with 9 days suspended; completion of 60 hours’ community work service; a $50 fine
that was waived due to Bolger’s indigency; completion of the Domestic Intervention
Education Training (D.I.E.T.) program; and community control supervision for 1
year.
On July 28, 2021, Bolger filed a motion to stay execution of the
sentence that the trial court subsequently denied on July 30, 2021. Bolger timely
appealed on August 18, 2021. On October 10, 2021, Bolger filed a motion to stay
execution of his sentence pending appeal and to place him on personal bond. This
court granted the motion to stay execution of sentence pending appeal and found no
bond was required.
On November 4, 2021, the city of Cleveland filed a notice of conceded
error, pursuant to Loc.App.R. 16(B) and therein acknowledged Bolger’s entitlement
to a jail-time credit for the full time he spent in jail. Accordingly, the city concedes
that under R.C. 2967.191, the trial court erred when it calculated defendant’s jail-
time credit. The city’s notice of conceded error does not address Bolger’s second
assignment of error that addresses community-control sanctions.
Legal Analysis
Bolger raises two assignments of error for our review:
Assignment of Error I: The trial court erred by failing to grant Jason
Bolger 71 days of jail credit.
Assignment of Error II: The trial court erred in placing Jason Bolger
on community control sanctions after he had already served his entire
jail sentence.
On appeal, a defendant bears the burden of demonstrating that the
trial court erred in its calculation of jail-time credit. State v. Watkins, 8th Dist.
Cuyahoga No. 105625, 2017-Ohio-8322, ¶ 7. Defendants convicted of felony and
misdemeanor offenses are afforded jail-time credit for time served:
Under both statutes [R.C. 2967.191 and 2949.08], an offender is
entitled to have [his or her] sentence reduced by the days he or she was
confined prior to conviction. Both statutes require a sentence to be
reduced by the total number of days an offender was confined “for any
reason arising out of the offense” for which the offender was convicted
and sentenced. R.C. 2967.191 and 2949.08(C)(1).
State v. Smiley, 8th Dist. Cuyahoga No. 99486, 2013-Ohio-4495, ¶ 8.
Bolger complains that the trial court erred when it failed to grant him
71 days of jail-time credit. Specifically, Bolger contends the trial court lacked any
basis to deny him 20 days of jail-time credit when, following his arrest, Bolger was
confined to medical isolation within the county jail. A defendant is entitled to a
reduction in his sentence equal to the number of days he was confined prior to
conviction. Id. Here, Bolger’s arrest and subsequent assignment to medical
isolation within the county jail constituted confinement, and Bolger was entitled to
receive jail-time credit for the 20 days spent in medical isolation.
Bolger also argues that the trial court erred when it placed him on one
year community-control sanctions since he had already served the maximum 60-
day jail sentence for a third-degree misdemeanor. See R.C. 2929.24(A)(3). Under
R.C. 2929.25(A)(1)(b), a trial court may impose a jail term and a period of
community-control sanctions only where the trial court suspends all or a portion of
the imposed jail term. “In other words, a trial court may not require a defendant to
serve a period of community supervision after serving the maximum jail sentence
for a misdemeanor.” State v. Pratt, 8th Dist. Cuyahoga No. 105791, 2018-Ohio-
1394, ¶ 11. Bolger contends that the trial court erred when it ordered him to serve
one year community-control sanctions after serving 71 days on a 60-day sentence.
After reviewing the record, we agree with the parties and find that the
trial court’s failure to recognize Bolger’s 71 days of jail-time credit is contrary to law.
Thus, Bolger’s first assignment of error is sustained. Further, with a jail-time credit
of 71 days, Bolger has served his maximum 60-day jail sentence. A trial court may
not impose a sentence of community-control sanctions after the defendant served
the maximum jail sentence for a misdemeanor. Id. Therefore, the trial court lacked
authority to impose a sentence of community-control sanctions, and Bolger’s second
assignment of error is also sustained.
In conclusion, we vacate the portions of the July 22, 2021 journal
entry that granted Bolger 51 days of jail-time credit and that imposed community-
control sanctions. We remand the case so that the trial court can find Bolger is
entitled to 71 days of jail-time credit and, therefore, Bolger satisfied his 60-day jail
sentence. On remand, the trial court shall not impose any community-control
sanctions against Bolger since he satisfied his sentence.
Judgment vacated in part and remanded.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Cleveland Municipal 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.
____________________________
MARY EILEEN KILBANE, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR