State v. Henry ( 2021 )

[Cite as State v. Henry, 2021-Ohio-888.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
DEVON A. HENRY, : Case No. 20CA000017
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Guernsey County
Court of Common Pleas, Case No.
19-CR-200
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 19, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JASON R. FARLEY FREDERICK A. SEALOVER
Assistant County Prosecutor 45 N. Fourth Street
627 Wheeling Avenue P.O. Box 2910
Cambridge, Ohio 43725 Zanesville, Ohio 43702
Guernsey County, Case No. 20CA000017 2
Baldwin, J.
{¶1} Defendant-appellant Devon Henry appeals from the June 18, 2020
Judgment Entry of the Guernsey County Court of Common Pleas. Plaintiff-appellee is the
State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On June 11, 2019, the Guernsey County Grand Jury indicted appellant on
one count of trafficking in hashish in violation of R.C. 2925.03(A)(1) and 2925.03(C)(7)(d),
a felony of the second degree, and one count of trafficking in heroin in violation of R.C.
2925.03(A)(1) and 2925.03(C)(6)(d), also a felony of the second degree. The indictment
also contained two specifications for forfeiture of an automobile in a drug case and two
specifications for forfeiture of money in a drug case.
{¶3} On July 25, 2019, appellant filed a Notice of Availability stating that he was
currently incarcerated in the Mahoning County Jail and had been since June 21, 2019.
{¶4} At his arraignment on September 3, 2019, appellant entered a plea of not
guilty to the charges. At the arraignment, appellant’s counsel advised the trial court that
appellant was “being held on a detainer or holder from the Federal authorities as
indicated, and whatever bond he has or whatever bond is set by this Court he is not going
to be released as my understanding from Federal hold. Even though he is being held in
the Mahoning County Jail it is on Federal holder…..” Transcript at 16-17.
{¶5} The trial court stated on the record, in relevant part, as follows: “…the Court
will set bond today as a Personal Recognizance Bond, but as he is currently being held
under the Federal Warrant…, I will require further bond hearing before he can be
released. He can be returned to Mahoning County.” Transcript at 18-19.
Guernsey County, Case No. 20CA000017 3
{¶6} The State amended both charges to felonies of the fifth degree and
appellant, on February 26, 2020, entered a plea of guilty to the amended charges.
Pursuant to a Judgment Entry filed on June 18, 2020, appellant was sentenced to eleven
(11) months for trafficking in hashish and nine (9) months for trafficking in heroin. The trial
court ordered that the sentences be served consecutively for an aggregate prison
sentence of twenty (20) months. The trial court ordered that the $2,100.00 seized be
forfeited and dismissed the remaining specifications.
{¶7} At the sentencing hearing, defense counsel argued that appellant should be
given jail time credit for the period of time that he had been subject to the federal holder
as result of the allegations in his Guernsey County prosecution. Defense counsel argued,
in relevant part, as follows:
{¶8} “He was released on a bond then, and was picked up on June on the basis
of supervised release violation on a Federal case, and that violation on what he has been
told and what I have been told from discussing with the Attorney in his Federal case is
that the violation essentially is this case, and he was being held pending deposition (sic)
of this case by the feds and as the Court may remember likely does recall his bond in this
was Recognizance Bond, but were he be released, he was to have another bond hearing
before being released so my position has been all along that he was being held on this
case, and now it may be and it is a technical matter but the Feds had the primary holder
on him and that I will argue that the State had a holder, even if it was a secondary holder
on him, but all related to the nexus the crux of the matter was this case and these crimes
so I would submit that he should receive jail time credit for the entire time he has been
locked with regard to this as this Court is handling the situation first. He will get if this
Guernsey County, Case No. 20CA000017 4
Court were grant him jail time credit as I am requesting and of course, I have not done a
calculation, but it would be something in the area of an entire year,...”
{¶9} Transcript at 79-80.
{¶10} The court responded by stating that “if I read the Presentence Investigation
Page One jail time credit correctly that time he spent in the County Jail was here….Not
where he is being housed at the Mahoning County Jail under Federal custody.” Transcript
at 80.
{¶11} The trial court, in its June 18, 2020 Judgment Entry, ordered that appellant
receive jail time credit for 41 days (as of June 18, 2020) for time incarcerated in this case
and that appellant receive additional credit for time awaiting transport to prison.
{¶12} Appellant now appeals, raising the following assignment of error on appeal:
{¶13} “I. THE TRIAL COURT ERRED BY DENYING THE DEFENDANT-
APPELLANT’S REQUEST FOR ADDITIONAL JAIL-TIME CREDIT FOR TIME THAT HE
SERVED ARISING OUT OF THE OFFENSES FOR WHICH HE WAS CONVICTED AND
SENTENCED.”
I
{¶14} Appellant, in his sole assignment of error, argues that the trial court erred
by denying his request for additional jail-time credit for time that he served arising out of
the offenses for which he was convicted and sentenced. We disagree.
{¶15} This Court reviews the trial court's determination as to the amount of jail-
time credit under the “clearly and convincingly” contrary-to-law standard. State v. Perkins,
11th Dist. Lake Nos. 2018-L-084 and 2018-L-098, 2019-Ohio-2288, ¶ 12. It is appellant's
burden to establish that the trial court erred in its jail-time award. State v. Haworth, 11th
Guernsey County, Case No. 20CA000017 5
Dist. Portage Nos. 2019-P-0047-0049, 2020-Ohio-1341, ¶ 29, citing State v. Corpening,
2019-Ohio-4833, 137 N.E.3d 116, ¶ 27 (11th Dist.).
{¶16} “Criminal defendants have a right to jail-time credit.” State v. Thompson, 8th
Dist. Cuyahoga No. 102326, 2015-Ohio-3882, ¶ 21. R.C. 2967.191(A) states as follows:
(A) The department of rehabilitation and correction shall reduce the
prison term of a prisoner, as described in division (B) of this section, 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,
confinement while awaiting transportation to the place where the prisoner is
to serve the prisoner's prison term, as determined by the sentencing court
under division (B)(2)(g)(i)1 of section 2929.19 of the Revised Code, and
confinement in a juvenile facility. The department of rehabilitation and
correction also shall reduce the stated prison term of a prisoner or, if the
prisoner is serving a term for which there is parole eligibility, the minimum
and maximum term or the parole eligibility date of the prisoner by the total
number of days, if any, that the prisoner previously served in the custody of
the department of rehabilitation and correction arising out of the offense for
which the prisoner was convicted and sentenced.
Guernsey County, Case No. 20CA000017 6
{¶17} However, time spent in confinement, either prison or jail, for unrelated cases
or awaiting trial and sentencing on an unrelated case cannot be counted towards another
case. State v. Cupp, 156 Ohio St.3d 207, 2018-Ohio-5211, 124 N.E.3d 811, ¶ 23.
{¶18} In the case sub judice, appellant argues that he was entitled to jail-time
credit for the time that he spent in Mahoning County Jail on a federal detainer. He argues
that during such period of time, he as confined “for a reason arising out of the offenses
for which he was convicted and sentenced in the trial court…”
{¶19} The record reveals that appellant was currently on supervision out of the
United States District Court, that a violation was filed against him on June 21, 2019 and
that he had been incarcerated since that time. Appellant was not being held on the
Guernsey County case. His bond in this case was set as a personal recognizance bond.
We concur with appellee that the time that appellant served in the Mahoning County Jail
would go towards his federal sentence, but that he is not entitled to credit toward this
case. See State v. Claggett, 8th Dist. Cuyahoga No. 108742, 2020-Ohio-4133. In
Clagett, the court held that the defendant was not entitled to jail time credit when he was
also being held on a federal probation detainer.
{¶20} Appellant’s sole assignment of error is, therefore, overruled.
Guernsey County, Case No. 20CA000017 7
{¶21} Accordingly, the judgment of the Guernsey County Court of Common Pleas
is affirmed.
By: Baldwin, P.J.
Wise, John, J. and
Delaney, J. concur.