State v. Ferguson , 2015 Ohio 5516 ( 2015 )

[Cite as State v. Ferguson, 2015-Ohio-5516.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO Hon. Sheila G. Farmer, P. J.
Hon. John W. Wise, J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
-vs- Case Nos. 15 CA 00009 and
15 CA 00010
BRYAN K. FERGUSON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case Nos. 11 CR 0070 and 11 CR
0102
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 28, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSEPH A. FLAUTT VALERIE K. WIGGINS
PROSECUTING ATTORNEY 107 South Main Street
CINDY M. O’NEIL New Lexington, Ohio 43764
ASSISTANT PROSECUTOR
111 North High Street, P. O. Box 569
New Lexington, Ohio 43764
Perry County, Case Nos. 15 CA 00009 and 15 CA 00010 2
Wise, J.
{¶1} Appellant Bryan Ferguson appeals from the decisions of the Court of
Common Pleas, Perry County, which denied his motion for jail-time credit following his
incarceration for violating community control. Appellee is the State of Ohio. The relevant
facts leading to this consolidated appeal, stemming from two trial court cases, are as
follows.
Background of Common Pleas Case No. 11-CR-0070
{¶2} On July 21, 2011, in case number 11-CR-0070, appellant was indicted on
two counts of breaking and entering (R.C. 2911.13(A), felonies of the fifth degree), one
count of theft (R.C. 2913.02(A)(1), a misdemeanor of the first degree), and one count of
attempted theft (R.C. 2913.02(A)(1) and 2923.02(A), a misdemeanor of the second
degree).
{¶3} On February 9, 2012, appellant entered pleas of guilty to all counts as
charged. Appellant was placed on community control for a period of five years, with the
condition that he serve ninety days in jail.
Background of Common Pleas Case No. 11-CR-0102
{¶4} On November 18, 2011, in case number 11-CR-0102, while the above
charges were pending, appellant was indicted on one count of breaking and entering
(R.C. 2911.13(A), a felony of the fifth degree), one count of possession of criminal tools
(R.C. 2923.24(A), a felony of the fifth degree), and one count of theft (R.C. 2913.02(A)(1),
a misdemeanor of the first degree).
{¶5} On February 9, 2012, appellant entered pleas of guilty to all counts as
charged. Appellant was placed on community control for a period of five years, with the
Perry County, Case Nos. 15 CA 00009 and 15 CA 00010 3
condition that he spend ninety days in jail, with the incarceration period to run concurrently
with that in case number 11-CR-0070.
2013 Community Control Violation
{¶6} On April 12, 2013, appellant was charged with violating his community
control sanctions in case number 11-CR-0070. On May 15, 2013, appellant appeared
before the trial court and admitted to violating community control. The court decided to
continue his community control, but as an additional condition, appellant was ordered to
attend and successfully complete the community transition control program (“CTC”) in
Lancaster, Ohio.
2014 Community Control Violations
{¶7} On September 10, 2014, appellant was again charged with violating his
community control, this time under both 11-CR-0070 and 11-CR-0102. On October 20,
2014, appellant admitted to the violation in both cases. As a result, via a judgment entry
filed in each case on October 23, 2014, appellant's community control was revoked. The
trial court further sentenced him to prison for a period of eleven months in each case, for
a total of twenty-two months. Appellant was also given credit for 90 days of jail time served
under 11-CR-0070 and 207 days of jail time under 11-CR-0102. However, these periods
did not include credit for any days spent at the aforementioned treatment at CTC.
Appellant’s Request for Jail-Time Credit
{¶8} On February 18, 2015, appellant filed a motion for jail-time credit under both
case numbers, therein requesting credit for 103 claimed days of jail-time credit for his
CTC treatment, which he alleged had occurred from mid-June 2013 to late September
Perry County, Case Nos. 15 CA 00009 and 15 CA 00010 4
2013. On March 12, 2015, the trial court denied appellant's motion via judgment entries
in each case. 1
{¶9} On April 1, 2015, appellant filed a notice of appeal under each of the
aforesaid trial court case numbers. This Court consolidated the cases via judgment entry
on July 17, 2015.
{¶10} Appellant herein raises the following two Assignments of Error:
{¶11} “I. THE TRIAL COURT VIOLATED THE APPELLANT'S
CONSTITUTIONAL RIGHTS AND ABUSED ITS DISCRETION WHEN IT FAILED TO
GRANT THE APPELLANT CREDIT FOR TIME SERVED WHILE THE APPELLANT WAS
INCARCERATED IN COMMUNITY TRANSITION CONTROL. THE APPELLANT IS
NOW BEING UNLAWFULLY DETAINED.
{¶12} “II. THE TRIAL COURT VIOLATED THE APPELLANT'S
CONSTITUTIONAL RIGHTS AND ABUSED ITS DISCRETION WHEN IT FAILED TO
CONDUCT A HEARING TO DETERMINE THE NATURE OF THE APPELLANT'S
CONFINEMENT AT COMMUNITY TRANSITION CONTROL BEFORE DENYING THE
APPELLANT'S MOTION FOR JAIL TIME CREDIT. THE APPELLANT IS NOW BEING
UNLAWFULLY DETAINED.”
I., II.
{¶13} In his First Assignment of Error, appellant contends the trial court abused
its discretion and violated his constitutional rights by denying his request for jail-time
1 Our reading of the trial court files indicates that the CTC requirement, which the court
added in 2013, was only ordered in 11-CR-0070, even though the subject motion for jail-
time credit was filed under both case numbers.
Perry County, Case Nos. 15 CA 00009 and 15 CA 00010 5
credit. In his Second Assignment of Error, appellant contends the trial court abused its
discretion and violated his constitutional rights by failing to conduct a hearing on the issue.
{¶14} R.C. 2967.191 states in pertinent part as follows:
The department of rehabilitation and correction 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 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) of section 2929.19 of the Revised Code, and confinement in a
juvenile facility. ***.
{¶15} Accordingly, “[t]ime spent in a rehabilitation facility where one's ability to
leave whenever he or she wishes is restricted may be confinement for the purposes of
R.C. 2967.191.” State v. Osborne, 5th Dist. Richland No. 2009CA0119, 2010-Ohio-4100,
¶ 14, citing State v. Napier, 93 Ohio St. 3d 646, 758 N.E.2d 1127, 2001-Ohio-1890.
Nonetheless, we have recognized that an appeal of a jail-time credit denial is moot where
the defendant-appellant has completed his prison sentence. See State v. Black, 5th Dist.
Richland No. 09-CA-153, 2010-Ohio-2594; State v. Owens, 5th Tuscarawas App.No.
2004 AP 03 0022, 2004-Ohio-4604.
Perry County, Case Nos. 15 CA 00009 and 15 CA 00010 6
{¶16} Appellant states in his brief that “the issue will be moot before the case can
be remanded for further review ***.” See Appellant’s Brief at 7. Specifically, appellant
submits that with the 103 days of requested credit applied, he would have been entitled
to release on July 2, 2015. Id. at 3. Based on this, we must conclude that appellant has
by now completed his community control violation sentences imposed by the trial court
on October 23, 2014.
{¶17} Appellant’s First and Second Assignments of Error are therefore found
moot, and we thus will not reach an analysis of the CTC program in regard to R.C.
2967.191, supra.
{¶18} For the reasons stated in the foregoing opinion, the judgments of the Court
of Common Pleas, Perry County, Ohio, are hereby affirmed.
By: Wise, J.
Farmer, P. J., and
Delaney, J., concur.
JWW/d 1209