State v. Ralph , 2011 Ohio 1303 ( 2011 )

[Cite as State v. Ralph, 2011-Ohio-1303.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
WYANDOT COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 16-10-07
v.
DANNY R. RALPH, OPINION
DEFENDANT-APPELLANT.
Appeal from Wyandot County Common Pleas Court
Trial Court No. 10-CR-0020
Judgment Affirmed
Date of Decision: March 21, 2011
APPEARANCES:
Howard A. Elliott for Appellant
Jonathan K. Miller for Appellee
Case No. 16-10-07
SHAW, J.
{¶1} The appellant, Danny Ray Ralph (“Ralph”), appeals the July 15, 2010
judgment of conviction and sentence of the Wyandot County Court of Common Pleas
assigning as error the trial court’s failure to grant him any days of jail-time credit for the
time he spent in confinement while awaiting the disposition of the charges pending
against him.
{¶2} On November 12, 2009, in case number 09-CR-0099, a Wyandot County
Grand Jury indicted Ralph on one count of breaking and entering, one count of theft, and
one count of petty theft. The charges stemmed from an August 6, 2009 incident where
Ralph allegedly entered into the garage belonging to a Nevada, Ohio resident, Lyle
Gatchel, taking various items from the garage including Gatchel’s wallet, which
contained several credit cards. Because Ralph was already serving prison time on prior
convictions out of Richland County, the trial court ordered a warrant to be issued to
facilitate Ralph’s delivery from the Lorain Correctional Institution, located in Grafton,
Ohio, to Wyandot County so that he might appear for arraignment on the charges listed in
the November 12, 2009 Indictment.
{¶3} On November 19, 2009, Ralph appeared for arraignment and entered pleas of
not guilty to the charges. Ralph confirmed under oath that he was presently incarcerated
in Lorain County. The trial court set Ralph’s bond at $10,000.00. Ralph remained in
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custody at the Richland County Correctional Institution while he awaited the disposition
of the charges pending in case 09-CR-0099.
{¶4} On April 14, 2010, Ralph was again indicted by the Wyandot County Grand
Jury on additional charges, in case number 10-CR-0020, which listed three separate
counts of breaking and entering, receiving stolen property, and forgery. The charges
stemmed from incidents on August 6 and 7, 2009, where Ralph allegedly obtained and
used Lyle Gatchel’s credit cards to purchase items at Speedway SuperAmerica in Upper
Sandusky by forging Gatchel’s signature.
{¶5} On May 18, 2010, Ralph was arraigned on the charges listed in the
indictment pertaining to case number 10-CR-0020, and entered pleas of not guilty to the
charges. The trial court again set Ralph’s bond at $10,000.00. The trial court also
granted the prosecution’s motion to consolidate the two cases pending against Ralph
under case number 09-CR-0099.
{¶6} The same day, Ralph entered into a negotiated plea agreement, in which he
changed his plea to guilty on count two of the indictment filed under case number 10-CR-
0020, receiving stolen property. In exchange for Ralph tendering his guilty plea on the
receiving stolen property charge, the prosecution agreed to dismiss the remaining counts
listed in the indictment under case number 10-CR-0020, and all three counts listed in the
indictment under case 09-CR-0099. The terms of Ralph’s negotiated plea agreement
were journalized in the trial court’s May 24, 2010 Judgment Entry.
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{¶7} On July 13, 2010, Ralph appeared before the trial court for sentencing. At
issue during the sentencing proceeding was whether Ralph was entitled to jail-time credit
for the days he spent in custody while awaiting the disposition of the Wyandot County
cases. Ralph maintained that he was entitled to 224 days of jail-time credit from his
initial arraignment on November 19, 2009. As the basis for this argument, Ralph asserted
that the instant charge of receiving stolen property was committed as part of a
“continuing course of conduct” in surrounding counties. Specifically, Ralph maintained
that his conviction for receiving stolen property in the Wyandot County case was part of
a multi-county crime spree, which also resulted in convictions in Franklin and Richland
Counties. Ralph asserted that because his conviction in the Wyandot County case was
“related” to his convictions in Richland County, for which he was already serving prison
time, he should essentially be receiving simultaneous jail-time credit for both cases.
{¶8} On July 15, 2010, the trial court journalized Ralph’s judgment of conviction
and sentence, which imposed a prison term of eleven months to be served consecutively
to Ralph’s sentences arising from his Richland County convictions. In its sentencing
entry, the trial court found that Ralph’s conviction in the Wyandot County case was not
part of a “continuing course of conduct” and, therefore, did not arise out of the offenses
for which he was convicted and sentenced in Richland County. Accordingly, the trial
court concluded that Ralph not entitled to any jail-time credit toward his sentence
stemming from the Wyandot County conviction.
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{¶9} Ralph now appeals, asserting the following assignment of error.
ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED PLAIN AND REVERSIBLE
ERROR BY FAILING TO CREDIT THE DEFENDANT-
APPELLANT FOR THE PERIOD OF TIME THAT THE
DEFENDANT-APPELLANT WAS HELD DURING THE
PENDENCY OF THE CASE IN LIEU OF BOND WHEN HE RAISED
THE ISSUE BEFORE THE TRIAL COURT BY SUGGESTING HIS
INCARCERATION WAS RELATED TO OR AROSE OUT OF THE
OFFENSE BEFORE THE COURT AND THE STATE FAILED TO
OFFER ADMISSIBLE EVIDENCE TO CHALLENGE THE
DEFENDANT’S ASSERTIONS.
{¶10} In his sole assignment of error, Ralph asserts that the trial court erred in
failing to grant him any jail-time credit for the time he spent in Wyandot County custody
while awaiting the disposition of the charges pending against him. Specifically, Ralph
maintains that the trial court was not permitted to overrule his request for jail-time credit
absent sufficient evidence from the prosecution establishing that the Wyandot County
offense actually arose out of a set of facts separate and apart from the Richland County
convictions, for which he was already serving time.
{¶11} Initially, we note that a defendant’s entitlement to jail-time credit is
governed by R.C. 2967.191, which states, 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, confinement for examination to
determine the prisoner’s competence to stand trial or sanity, and
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confinement while awaiting transportation to the place where the
prisoner is to serve the prisoner's prison term.
(Emphasis added).
{¶12} To the contrary, a defendant is not entitled to jail time credit under R.C.
2967.191 for any period of incarceration that arises from facts separate and apart from
those on which the current sentence is based. State v. Lynn, 3d Dist. No. 15-06-16, 2007-
Ohio-3344, ¶ 8, citing State v. Logan (1991), 71 Ohio App.3d 292, 300, 593 N.E.2d 395.
Furthermore, R.C. 2967.191 does not require a trial court to recognize duplicate or
multiple pretrial detention credit. Lynn, 2007-Ohio-3344, ¶ 8; see also State v. Harpe, 3d
Dist. No. 5-10-01, 2010-Ohio-3670, ¶17.
{¶13} In making his argument under this assignment of error, Ralph principally
relies on a case decided by the Second Appellate District, State v. Nagy, 2d Dist. No.
2003CA21, 2003-Ohio-6903. In Nagy, the defendant objected to the trial court’s finding
at sentencing that he was only entitled to eleven days of jail-time credit, as opposed to the
entire 143 days he was in custody while awaiting the disposition of the pending charges.
Id. ¶6-7. In determining that Nagy was not entitled to more days of jail-time credit, the
trial court relied on the unsworn statements of the court’s probation officer, which were
made in open court, indicating that the defendant was serving time on an unrelated
municipal conviction prior to being held for the offense in the subsequent case. Id. at ¶9.
Based on these statements alone, the trial court overruled the defendant’s request for
additional days of jail-time credit. Id. ¶10-11. The defendant appealed, and the Second
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Appellate district reversed the trial court’s assessment of the defendant’s jail-time credit
finding error with the trial court relying solely on the “mere unsworn representations” by
the court’s probation officer to overrule Nagy’s objection. Id. at ¶23.
{¶14} In relying on Nagy, Ralph overlooks key differences between his case and
Nagy’s. Unlike in Nagy, the record in Ralph’s case demonstrates that there was more
than “mere unsworn representations” before the trial court, which substantiated the nature
of Ralph’s prior convictions. Here, the trial court reviewed the pre-sentence investigation
report which detailed Ralph’s convictions in Richland County for receiving stolen
property, misuse of credit cards, grand theft and breaking and entering, in addition to the
charges pending against Ralph in Franklin County for receiving stolen property and
misuse of credit cards. We note that it is well within the discretion of the trial court to
rely on the contents of a defendant’s pre-sentence investigation report when deciding
sentencing matters. State v. Osborn, 3d Dist. No. 9-05-35, 2006-Ohio-1890, ¶13 citing
State v. Cook (1998), 83 Ohio St.3d 404, 425, 700 N.E .2d 570; see also Evid.R
101(c)(3)(providing hearsay is admissible in sentencing proceedings). Moreover, there
was no evidence before the trial court at the time of sentencing demonstrating that the
receiving stolen property offense, for which Ralph was convicted and sentenced to in
Wyandot County, arose out of the offenses Ralph committed in Richland and Franklin
Counties.
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{¶15} Nevertheless, despite the lack of evidence substantiating Ralph’s objection
to the trial court’s decision on his jail-time credit, the trial court did not summarily
overrule his objection as the court did the Nagy case. Rather, once Ralph’s counsel
raised the objection to the trial court’s assessment of jail-time credit, the trial court took a
short recess to review the relevant law because Ralph’s counsel had not raised the
disputed jail-time credit issue prior to sentencing. Upon returning on the record, the trial
court engaged in a discussion with Ralph’s counsel and the prosecution on the matter,
specifically regarding the application of R.C. 2967.191 to Ralph’s case.
{¶16} In exploring Ralph’s argument that his Wyandot County conviction was
part of a “continuing course of conduct” with his prior convictions in Richland County,
the trial court asked Ralph’s counsel to extract details from Ralph’s prior convictions that
linked those offenses to the Wyandot County offense. The only fact relied upon by
Ralph’s counsel on this point, was that Ralph was living in a “crack house” in Richland
County for an unsubstantiated period of time, where several stolen credit cards were
passed around to the “crack house” dwellers and used at a variety of locations. Ralph’s
counsel admitted that she did not know when the other offenses took place, who the
victim’s were in the offenses, or where the other offenses occurred. Therefore, aside
from the rather attenuated statement that an unidentified “crack house” was the common
source of the cases in Wyandot, Richland, and Franklin Counties, there was no other
evidence before the trial court to support Ralph’s contention that his conviction for
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receiving stolen property in Wyandot County arose out of the same set of facts as his
prior Richland County offenses.
{¶17} Based on the record before us, we do not find that the trial court committed
error in finding that Ralph was not entitled to any days of jail-time credit while he
awaited the disposition of this case, because he was serving time on a prior conviction
which arose out of a set of facts separate and apart from the case sub judice.
Accordingly, Ralph’s assignment of error is overruled.
{¶18} For all these reasons, the judgment of the Wyandot County Court of
Common Pleas is affirmed.
Judgment Affirmed
ROGERS, P.J. and WILLAMOWSKI, J., concur.
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