State v. Henderson ( 2018 )

[Cite as State v. Henderson, 2018-Ohio-5155.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106308
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ROGERS T. HENDERSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-99-381404-B
BEFORE: Boyle, J., Kilbane, P.J., and Keough, J.
RELEASED AND JOURNALIZED: December 20, 2018
ATTORNEYS FOR APPELLANT
Mark A. Stanton
Cuyahoga County Public Defender
BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Gregory J. Ochocki
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:
{¶1} Defendant-appellant, Rogers Henderson, appeals the trial court’s judgment
resentencing him to 15 years to life in prison plus three years for a firearm specification to be
served prior to and consecutive to the base charge, for an aggregate sentence of 18 years to life in
prison. He also appeals the trial court’s jail-time credit calculation. He raises two assignments
of error for our review:
1. The trial court erred when, in 2017, it added a life tail to the sentence of 18
years of imprisonment imposed in 1999.
2. The trial court erred when it failed to credit Mr. Henderson with a total of 71
days of jail-time credit.
{¶2} We agree with Henderson that the trial court incorrectly calculated his jail-time
credit but disagree that the trial court erred in resentencing him. We therefore affirm in part,
reverse in part, and remand with instructions for the court to issue a new judgment reflecting that
Henderson is entitled to 71 days of jail-time credit.
I. Procedural History
{¶3} On November 30, 1999, Henderson pleaded guilty to murder in violation of R.C.
2903.02(A), with a three-year firearm specification. The trial court sentenced him as follows:
“[three] years to run prior to and consecutive with base charge of 15 years.”
{¶4} On March 31, 2009, Henderson moved to vacate his sentence due to the fact that
the trial court improperly imposed postrelease control. The trial court denied his motion.
{¶5} On May 4, 2011, the Bureau of Sentence Computation of the Ohio Department of
Rehabilitation and Correction sent the trial court a letter informing it that Henderson’s sentence
should have been 15 years to life for murder rather than 15 years. The trial court never took any
action on this letter.
{¶6} On June 15, 2011, the state moved for the trial court to correct Henderson’s
sentence. The trial court never ruled on the state’s motion, and the state never pursued it
further.
{¶7} On August 31, 2017, Henderson, pro se, moved for 68 days of jail-time credit
based on his claim that he had been “delivered into state custody” on September 24, 1999, and
that he was entitled to jail-time credit from that date through December 1, 1999.1 According to
Henderson, the trial court had already given him two days of jail-time credit, and thus, he
asserted that he was entitled to an additional 66 days. The trial court granted Henderson’s
motion, stating that Henderson would “receive a total of 66 days of a jail-time credit.”
1
Evidence presented at the hearing on September 20, 2017, established that Henderson had actually been in custody
since September 22, 1999.
{¶8} On September 15, 2017, the state moved for resentencing due to Henderson’s
unlawful sentence of 15 years for murder.
{¶9} On September 20, 2017, Henderson, through counsel, moved for an extra five
days of jail-time credit in addition to the 66 days that the trial court granted to him on September
14, 2017.
{¶10} The trial court held a hearing on both the state’s and Henderson’s motions on
September 20, 2017.
{¶11} Barbara Pond, the record office supervisor for the Bureau of Sentence Computation
of the Ohio Department of Rehabilitation and Correction, testified that she calculates release
dates for Ohio prison inmates based on information provided in journal entries. She testified
that if an inmate started his or her sentence on September 22, 1999, his or her release date would
be September 16, 2017, due to five leap days during that time — 2000, 2004, 2008, 2012, and
2016. She explained that the Bureau of Sentence Computation bases a year on 365 days, but
when there is a leap year, there are 366 days in a year so they subtract one day per each leap year.
She stated that if there were no leap years in the hypothetical given, then the inmate’s release
date would have been September 21, 2017.
{¶12} Regarding Henderson, Pond testified that Henderson must be released by midnight
on September 21, 2017. She explained that Henderson’s computation takes into account 66
days of jail-time credit based on the trial court’s journal entry dated September 14, 2017.
Henderson was arrested on September 22, 1999, and his admission date was December 2, 1999.
Pond stated that to calculate Henderson’s release date, she added 18 years, and subtracted 66
days for jail-time credit and 5 days for the 5 leap years. Based on that calculation, Henderson’s
release date was September 21, 2017.
{¶13} Pond identified a document that she sent to the prosecutor’s office on September
19, 2017, the day before the hearing, from the Ohio Department of Rehabilitation and Correction.
The document sets forth Henderson’s sentence of 3 years for the gun specification and 15 years
for murder, jail-time credit of 66 days, and “calculated release date” as September 21, 2017.
{¶14} Pond testified that when a judge improperly sentences a defendant, her department
sends a letter to the judge to tell the judge “as politely as possible” that the sentence does not
comport with the sentencing guidelines. She stated that she sent a letter to the trial court judge
on May 4, 2011, stating that Henderson’s sentence should have “carried a life term.” She said
they never got a response from the trial court judge. She also sent a copy of the letter to the
prosecutor’s office.2
{¶15} Pond identified a document from the manual that her department uses to calculate
an inmate’s prison time. According to the document, the “stated prison term is multiplied by
365 days and jail credit is subtracted. The time to serve is added to the admission date to arrive
at the Expiration of Stated Term (EST).” She explained that a “conveyance time” is the “day
after sentencing to the day prior to admission.” The conveyance time is “added to the jail-time
credit that is in the journal entry.” But she said that when they get an entry from the judge
stating the jail-time credit, they assume that the judge included the conveyance time in his or her
calculation of jail-time credit. In this case, that meant that she assumed that the 66 days of
jail-time credit included Henderson’s conveyance time. Pond stated that without the jail-time
credit, Henderson’s calculated release date would have been November 24, 2017.
2
The record indicates that Pond sent the May 4, 2011 letter to the original trial court judge who was no longer a
sitting judge on Cuyahoga County Common Pleas Court. The judge who took over the original sentencing judge’s
docket began on March 28, 2011.
{¶16} The state told the trial court that at the plea hearing, the trial court informed
Henderson that by pleading guilty to murder, his sentence would be 15 years to life in prison,
consecutive to three years for the gun specification. The state also argued that under R.C.
5145.01, Henderson should not be released. The state maintained that under this statute, the
trial court could just correct Henderson’s sentence to reflect that the 15 years “has a life tail.”
The state informed the trial court that it filed a motion on June 15, 2011, asking the trial court to
correct Henderson’s sentence to add the life tail, but the court never ruled on it. In sum, the
state argued that the trial court has the ability to correct the mistake because Henderson’s
sentence was not authorized by statute or in the alternative, under R.C. 5145.01.
{¶17} Henderson’s counsel argued that Henderson was arrested on September 22, 1999,
but that he did not “get booked into county until the 27th.” According to Henderson’s counsel,
Henderson was entitled to five more days of jail-time credit due to this five-day discrepancy
between the time he was arrested and the time he was booked. Henderson’s counsel argued that
the court gave Henderson credit for his county time, but did not take into account his time in the
Cleveland municipal system from the time of his initial arrest. Henderson’s counsel further
argued that the court did not have jurisdiction to resentence Henderson due to the fact that
Henderson should have already been released from prison on September 16, 2017.
{¶18} At the close of the hearing, the trial court denied Henderson’s motion for jail-time
credit and granted the state’s motion for resentencing. It found that jail-time credit would
“affect the final decision” in this case if Henderson had a “flat sentence” of 18 years. But
because Ohio sentencing statutes mandated that Henderson should have been sentenced to an
indefinite sentence of 15 years to life in prison for murder, Henderson did not have a “flat
sentence.” The trial court also found that R.C. 5145.01 applied to the case.
{¶19} The trial court then resentenced Henderson to 15 years to life in prison for murder
plus three years for the firearm specification to be served prior to and consecutive to the
underlying murder offense. The trial court informed Henderson that September 21, 2017, was
the first day that he was eligible for parole. It is from this judgment that Henderson now
appeals. We will address his assignments of error out of order for ease of discussion.
II. Jail-Time Credit
{¶20} The practice of awarding jail-time credit, although now covered by state statute,
has its roots in the Equal Protection Clauses of the Ohio and United States Constitutions. State
v. Fugate, 117 Ohio St. 3d 261, 2008-Ohio-856, 883 N.E.2d 440, ¶ 7. The rationale for giving
jail-time credit “is quite simple[;] [a] person with money will make bail while a person without
money will not.” Id. at ¶ 25 (Stratton, J., concurring). That means for “two equally culpable
codefendants who are found guilty of multiple offenses and receive identical concurrent
sentences,” the poorer codefendant will serve more time in jail than the wealthier one who was
able to post bail. Id. at ¶ 25-26. “[T]he Equal Protection Clause does not tolerate disparate
treatment of defendants based solely on their economic status.” Id. at ¶ 7. Based on these
principles, “defendants who are unable to afford bail must be credited for the time they are
confined while awaiting trial.” Id.
{¶21} In Ohio, this principle is codified in R.C. 2967.191, which provides in relevant
part: “The department of rehabilitation and correction shall reduce the stated 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[.]”
{¶22} “Although the [Bureau of Sentence Computation] has a mandatory duty pursuant to
R.C. 2967.191 to credit an inmate with jail time already served, it is the trial court that makes the
factual determination as to the number of days of confinement that a defendant is entitled to have
credited toward his [or her] sentence.” State ex rel. Rankin v. Ohio Adult Parole Auth., 98 Ohio
St.3d 476, 2003-Ohio-2061, 786 N.E.2d 1286, ¶ 7. Therefore, the Ohio Bureau of Sentence
Computation may credit only the amount of jail time that the trial court determines the inmate is
entitled to by law. Id. at ¶ 8. It cannot apply jail-time credit that has not been calculated by
the sentencing court. Williams v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No.
09AP-77, 2009-Ohio-3958, ¶ 16.
{¶23} In this case, Henderson was arrested on September 22, 1999. The trial court
agreed that Henderson was in jail as of that date. Henderson was transported from the county
jail to the state prison on December 2, 1999. The number of days from September 22 to
December 2 (not counting December 2 because Henderson was admitted to prison on that day)
amounts to 71 days. Thus, we agree with Henderson that the trial court did not properly
calculate his jail-time credit.
{¶24} Accordingly, we sustain Henderson’s second assignment of error.
III. R.C. 5145.01
{¶25} In his first assignment of error, Henderson argues that the trial court erred when it
resentenced him because his “sentence was already served in toto prior to the September 20,
2017 hearing.”
{¶26} There is no question that in this case, Henderson’s definite sentence of 15 years for
murder was contrary to law. R.C. 2929.02(B) provides that “whoever is convicted of or pleads
guilty to murder in violation of section 2903.02 of the Revised Code shall be imprisoned for an
indefinite term of fifteen years to life.”
{¶27} In State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d 332, the Ohio
Supreme Court explained:
Judges have no inherent power to create sentences. Griffin & Katz, Ohio Felony
Sentencing Law (2008) 4, Section 1:3, fn. 1. See also Woods v. Telb, 89 Ohio
St.3d [504] at 507-509, 733 N.E.2d 1103 [2000] (describing the legislative intent
behind a new, comprehensive sentencing structure, including postrelease control).
Rather, judges are duty-bound to apply sentencing laws as they are written. See
State v. Thomas (1996), 111 Ohio App. 3d 510, 512, 676 N.E.2d 903. “[T]he
only sentence which a trial court may impose is that provided for by statute. A
court has no power to substitute a different sentence for that provided for by
statute or one that is either greater or lesser than that provided for by law.”
Colegrove [v. Burns], 175 Ohio St. [437,] 438, 25 O.O.2d 447, 195 N.E.2d 811
[1964].
Id. at ¶ 22.
{¶28} The state argues, however, that R.C. 5145.01 and this court’s decision in State v.
Chapman, 8th Dist. Cuyahoga No. 104379, 2016-Ohio-8151, interpreting R.C. 5145.01, establish
that Henderson’s sentence “has always been 15 years to life, consecutive to 3 years for the
firearm specification,” no matter what the trial court actually imposed. We agree.
{¶29} R.C. 5145.01 provides that
[i]f, through oversight or otherwise, a person is sentenced to a state correctional
institution under a definite term for an offense for which a definite term of
imprisonment is not provided by statute, the sentence shall not thereby become
void, but the person shall be subject to the liabilities of such sections and receive
the benefits thereof, as if the person had been sentenced in the manner required by
this section.
{¶30} Regarding this statute, this court explained in Chapman:
Under this statute, if a determinate sentence is imposed instead of a statutorily
required indeterminate sentence, the determinate sentence is treated as an
indeterminate one. State v. Lauharn, 2d Dist. Miami No. 2010-CA-35,
2011-Ohio-4292, *4; see also [State v. Gates, 8th Dist. Cuyahoga No. 93789,
2010-Ohio-5348], at ¶ 8 (concluding that the definite-term sentence imposed for a
pre-S.B. 2 offense was not void but deemed an indefinite sentence under R.C.
5145.01); State v. Whitehead, 10th Dist. Franklin No. 90AP-260, 1991 Ohio App.
LEXIS 1324 (Mar. 28, 1991) (after finding no error with the defendant being
resentenced to an indeterminate sentence from a determinate one, the court noted
that “it is at least arguable that the proper [indeterminate] sentence * * * would be
applied as a matter of law pursuant to R.C. 5145.01.”).
Chapman at ¶ 9.
{¶31} In this case, the trial court, “through oversight or otherwise,” imposed a definite
sentence for murder when “a definite term of imprisonment is not provided by statute.” R.C.
5145.01. Therefore, under this statute, Henderson’s sentence was not void. Id. Further,
Henderson was subject to the indefinite penalties under the murder statute regardless of whether
the trial court mistakenly imposed a definite sentence. Accordingly, Henderson’s first
assignment of error is sustained. Therefore, when the trial court resentenced Henderson, he was
serving an indeterminate sentence of 15 years to life in prison by operation of law.
{¶32} Henderson further argues that he had a constitutionally protected expectation of
finality. There can be no expectation of finality, however, when a sentence is unlawful. State
v. Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 36. Henderson’s definite
sentence of 15 years was unlawful, and thus, he could not have an expectation of finality.
{¶33} Judgment affirmed in part and reversed in part. Judgment reversed with respect to
jail-time credit. Judgment is otherwise affirmed. This case is remanded with instructions for
the trial court to issue a new judgment reflecting that Henderson is entitled to 71 days of jail-time
credit.
It is ordered that appellant and appellee share the 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 common pleas
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 J. BOYLE, JUDGE
MARY EILEEN KILBANE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR