State v. Urwin ( 2013 )

[Cite as State v. Urwin, 2013-Ohio-3495.]
COURT OF APPEALS
MORROW COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
ANGELA URWIN : Case No. 13CA0002
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 08-CR-0192
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: August 8, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
K. DAVID HOMER EARL K. DESMOND
60 East High Street 7 West High Street
Mt. Gilead, OH 43338 Mt. Gilead, OH 43338
Morrow County, Case No. 13CA0002 2
Farmer, P.J.
{¶1} On November 12, 2008, the Morrow County Grand Jury indicted appellant,
Angela Urwin, on two counts of possessing a controlled substance in violation of R.C.
2925.11. Appellant pled guilty to one of the counts and the remaining count was
dismissed. By judgment entry filed January 14, 2010, the trial court sentenced
appellant to eleven months in prison, suspended in lieu of five years of community
control.
{¶2} Subsequently, a motion to revoke appellant's community control was filed.
A community control holder from the Morrow County probation department was placed
on appellant on September 21, 2010 as she was in jail on an unrelated felony arrest in
Marion County. A hearing on the motion to revoke was held on January 25, 2013. Joint
Exhibit A was produced demonstrating appellant was acquitted of the Marion County
charge following a jury trial on April 5 and 6, 2011. Appellant was released on April 7,
2011. Joint Exhibit B was produced demonstrating that the community control holder
was placed on September 21, 2010. By judgment entry filed February 12, 2013, the
trial court imposed the previously suspended sentence of eleven months and granted
appellant 152 days of jail time credit. The trial court found appellant was not entitled to
credit for the time she was in jail on the Marion County case even though she was
under a community control holder.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
Morrow County, Case No. 13CA0002 3
I
{¶4} "THE TRIAL COURT ERRONEOUSLY DENIED JAIL CREDIT FOR TIME
SPENT IN CUSTODY AFTER A HOLDER WAS PLACED AGAINST HER FOR
ALLEGED VIOLATIONS OF THE TERMS OF HER COMMUNITY CONTROL."
I
{¶5} Appellant claims the trial court erred in denying her jail time credit for time
spent in jail on a community control holder. Appellant concedes she was also in jail
awaiting trial on an unrelated felony charge in Marion County. She argues because she
was found not guilty of the Marion County charge, the days spent in jail should be
credited to her community control violation sentence. We agree.
{¶6} R.C. 2967.191 governs credit for confinement awaiting trial and
commitment and states the following:
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
Morrow County, Case No. 13CA0002 4
(B)(2)(g)(i) 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.
{¶7} As we discussed in State v. Norman, 5th Dist. Muskingum No. CT2012-
0061, 2013-Ohio-1866, the interpretation of the statute in cases where a person is
sentenced on an unrelated charge pending during a community control holder is very
clear. No jail time credit is given for the community control holder. However, in this
case, appellant was not convicted of the unrelated charge, but was found not guilty
following a jury trial. See, Joint Exhibit A.
{¶8} The community control holder was issued on September 21, 2010 (Joint
Exhibit B), and expired on April 7, 2011 when she was released from jail following her
acquittal in Marion County. Appellant argues the time between the two dates should be
credited to her community control violation sentence. Appellant stipulated that on the
unrelated felony offense in Marion County, she had a bond of $15,000 which was not
met. T. at 8.
{¶9} But for the community control holder, appellant could have bonded out in
the Marion County case. If appellant had been convicted of the Marion County charge,
Morrow County, Case No. 13CA0002 5
jail time credit would have been applied to that sentence. However, once acquitted,
under the trial court's decision, appellant was left with uncredited time in jail.
{¶10} In State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, ¶ 21, the
Supreme Court of Ohio explained the following:
Applying jail-time credit toward all concurrent prison terms imposed
for charges on which an offender was held does not have the effect of
"multiply[ing] his single period of pretrial confinement by the number of
convictions entered against him." Id. Instead, applying the credit toward
all concurrent terms simply ensures that the offender actually receives
credit for that single period of confinement.
{¶11} Under these specific circumstances, we find appellant should have
received credit under R.C. 2967.191 on the only sentence imposed upon her, the
community control violation sentence. We note the presence of a bond in Marion
County reinforces appellant's argument sub judice. Appellant is entitled to jail time
credit from September 21, 2010 to April 7, 2011.
{¶12} The sole assignment of error is granted.
Morrow County, Case No. 13CA0002 6
{¶13} The judgment of the Court of Common Pleas of Morrow County, Ohio is
hereby reversed.
By Farmer, P.J.
Wise, J. and
Delaney, J. concur.
_______________________________
Hon. Sheila G. Farmer
_______________________________
Hon. John W. Wise
_______________________________
Hon. Patricia A. Delaney
SGF/sg 723
[Cite as State v. Urwin, 2013-Ohio-3495.]
IN THE COURT OF APPEALS FOR MORROW COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
ANGELA URWIN :
:
Defendant-Appellant : CASE NO. 13CA0002
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Morrow County, Ohio is reversed, and the
matter is remanded to said court for further proceedings consistent with this opinion.
Costs to appellee.
_______________________________
Hon. Sheila G. Farmer
_______________________________
Hon. John W. Wise
_______________________________
Hon. Patricia A. Delaney