State v. Quinteros , 2017 Ohio 8825 ( 2017 )

[Cite as State v. Quinteros, 2017-Ohio-8825.]
COURT OF APPEALS
HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. William B. Hoffman, J.
-vs-
Case No. 17CA002
WILBUR E. QUINTEROS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Holmes County Common
Pleas Court, Case No. 16CR056
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: December 1, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
SEAN M. WARNER TODD E. CHEEK
Prosecuting Attorney Todd E. Cheek Law Offices, LLC
Holmes County, Ohio 111 S. Buckeye St., Ste 235
164 E. Jackson Street Wooster, Ohio 44691
Millersburg, Ohio 44654
Holmes County, Case No. 17CA002 2
Hoffman, J.
{¶1} Defendant-appellant Wilbur Quinteros1 appeals the December 23, 2016
Journal Entry entered by the Holmes County Court of Common Pleas, which found him
guilty of one count of aggravated menacing, in violation of R.C. 2903.21(A) and (B), and
sentenced him to a six month period of incarceration with fifteen (15) days credit for jail
time served. Appellant also appeals the January 31, 2017 Journal Entry, which credited
him an additional eleven (11) days against his sentence for a total of twenty-six (26) days
of jail time credit. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE2
{¶2} On August 19, 2016, a complaint was filed in the Holmes County Municipal
Court, charging Appellant with one count of aggravated menacing, in violation of R.C.
2903.21(A) and (B). Appellant was arrested on August 22, 2016, and remained
incarcerated until September 2, 2016, when he posted bond. After waiving his right to a
preliminary hearing, Appellant was bound over to the Holmes County Court of Common
Pleas. On September 19, 2016, the Holmes County Grand Jury indicted Appellant on one
count of aggravated menacing, in violation of R.C. 2903.21(A) and (B), a felony of the fifth
degree. Appellant appeared before the trial court for arraignment on September 27, 2016,
and entered a plea of not guilty to the Indictment.
1
Appellant’s first name is spelled “W- I-L-B-U-R” on the majority of the documents filed in
the proceedings below. However, Appellant spelled his name “W-I-L-B-E-R” on the
Affidavit of Indigency.
2
A Statement of the Facts underlying this matter is not necessary for our disposition of
this appeal.
Holmes County, Case No. 17CA002 3
{¶3} Appellant’s bond was revoked on November 2, 2016, after he tested
positive for marijuana. The trial court issued a warrant for his arrest. Appellant was
arrested on November 7, 2016. On November 15, 2016, the Holmes County Municipal
Court sentenced Appellant on a probation violation in an unrelated matter. The sentence
on the probation violation expired on December 7, 2016, but Appellant remained
incarcerated on the instant charge until December 23, 2016.
{¶4} On December 22, 2016, Appellant appeared before the trial court and
entered a plea of guilty to one count of aggravated menacing, a misdemeanor of the first
degree. The trial court found Appellant guilty and sentenced him to a period of six months
in county jail. The trial court credited Appellant with 15 days for time served. The trial court
memorialized Appellant’s conviction and sentence via Journal Entry filed December 23,
2016.
{¶5} On January 3, 2017, Appellant filed a Motion for Hearing and Increase of
Jail Time Credit, asserting he was entitled to 58 days of jail time credit. Appellee filed a
memorandum in opposition in which it maintained Appellant was only entitled to 23 days
of jail time credit. Via Journal Entry filed January 31, 2017, the trial court granted
Appellant an additional 11 days of jail time credit, for a total of 26 days.
{¶6} Appellant filed a motion for stay on March 2, 2017, requesting the trial court
stay the remaining 32 days of his sentence. On the same day, Appellant filed a motion
for leave to appeal, which this Court granted. The trial court did not rule on Appellant’s
motion for stay.
{¶7} It is from the December 23, 2016, and January 31, 2017 Journal Entries
Appellant appeals, raising the following as error:
Holmes County, Case No. 17CA002 4
{¶8} THE TRIAL COURT’S CALCULATION OF CREDIT FOR TIME SERVED
IS CONTRARY TO LAW.
I
{¶9} Initially, we note the trial court sentenced Appellant to a period of
incarceration of six months, commencing December 23, 2016. Although Appellant
requested a stay, the trial court never ruled on his motion. Appellant did not request a
stay with this Court. It appears Appellant has served his entire sentence; therefore, any
error in the trial court’s calculation of his jail time credit is moot. Nonetheless, in the
interest of justice, we will address Appellant’s sole assignment of error.
{¶10} Appellant asserts the trial court erred in calculating his jail time credit.
Specifically, Appellant argues he was entitled to a total of 58 days of jail time credit rather
than the 26 days determined by the trial court. We agree, in part.
{¶11} R.C. 2967.191 governs the issue of jail time credit, and provides a prisoner
shall receive jail-time credit for “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.” (Emphasis added.)
{¶12} As thoroughly analyzed by this Court in State v. Marini, 5th Dist.
Tuscarawas No. 09–CA–6, 2009–Ohio–4633, ¶ 16, “Ohio courts have repeatedly
recognized that time spent serving a jail sentence in another case will not be credited
toward another felony case, even if the felony was pending at the time of the service of
the jail sentence.”
{¶13} In Marini, this Court stated:
Holmes County, Case No. 17CA002 5
The case law confirms that the felony offense of conviction must be
a legal cause for the defendant's prior confinement in order for that
confinement to be creditable. As the Tenth District Court of Appeals stated
in State v. Smith (1992), 71 Ohio App.3d 302, 304, 593 N.E.2d 402, “R.C.
2967.191 requires that jail credit be given only for the time the prisoner was
confined for any reason arising out of the offense for which he was
convicted and sentenced. It does not entitle a defendant to jail-time credit
for any period of incarceration which arose from facts which are separate
and apart from those on which his current sentence is based.” Id. at ¶ 5.
{¶14} As the statutes and case law indicate, Appellant cannot receive jail time
credit in this case for his confinement on the probation violation in a different matter. Each
sentence arose out of unrelated cases. “The language of R.C. 2967.191 does not allow
the convicted person to turn his confinement for various convictions into a ‘bank’ of jail
time that he ‘withdraw’ as needed for pending felony offenses.” Id. at ¶ 22.
{¶15} The trial court gave Appellant jail time credit for the 26 days he was
incarcerated in the Holmes County Jail prior to entering his plea. Appellant was not
entitled to credit for the period between November 15, 2016, and December 7, 2016,
during which he was serving his sentence on an unrelated probation violation.
{¶16} In its brief to this Court, the state of Ohio offered the following calculation of
jail time credit:
Holmes County, Case No. 17CA002 6
Defendant is entitled to 12 days credit for his incarceration on this
case from August 22, 2016 until he posted bond on September 2, 2016.
Defendant’s bond was revoked in this case and he jailed again on
November 7, 2016. He remained jailed on this case until November 15,
2016 when he was sentenced on a probation violation in Holmes County
Municipal Court. Defendant is entitled to 9 days credit for the November
period. Defendant was released from his municipal court sentence on
December 7, 2017 but remained jailed on this case until December 23, 2016
when he was sentenced to six months in the county jail. This period spans
17 days. Therefore, Defendant is entitled to 38 days credit for the periods
of 12 and 9 and 17 days when he was jailed for the offense for which he is
being sentenced in this case.
{¶17} Upon review, we agree with the jail time credit calculation proffered by the
state of Ohio. We find Appellant is entitled to 38 days of jail time credit.
{¶18} Appellant's sole Assignment of Error is sustained.
Holmes County, Case No. 17CA002 7
{¶19} The judgment of the Holmes County Court of Common Pleas is reversed.
By: Hoffman, J.
Delaney, P.J. and
Gwin, J. concur