State v. Combs , 2020 Ohio 5495 ( 2020 )

[Cite as State v. Combs, 2020-Ohio-5495.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-190530
TRIAL NO. B-1803185B
Plaintiff-Appellee, :
vs. : O P I N I O N.
TRULANCE COMBS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Vacated in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: December 2, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Adam Tieger,
Assisting Prosecuting Attorney, for Plaintiff-Appellee,
Roger W. Kirk, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
W INKLER , Judge.
{¶1} Defendant-appellant Trulance Combs appeals from the judgment of
the Hamilton County Court of Common Pleas revoking his community control and
imposing a prison sentence of eight years, with 129 days of confinement credit. He
argues that the trial court failed to properly consider R.C. 2929.11 and 2929.12 when
sentencing him and to award sufficient credit for his confinement before serving the
prison term.
{¶2} The record does not support Combs’s claim that the court failed to
consider the relevant sentencing statutes when imposing the eight-year prison term,
but it does show that Combs should have received additional confinement credit.
Thus, we vacate the confinement-credit calculation from his sentence and remand
the cause to the trial court for the proper calculation of the credit. In all other
respects, we affirm.
Facts and Procedural History
{¶3} In 2018, Combs was convicted of burglary, a second-degree felony,
after entering a guilty plea. The trial court ordered a presentence investigation,
which showed that Combs had never served a prison term but had a high risk of
recidivism. The trial court subsequently sentenced Combs to two years of
community control with intensive supervision. One condition of the community-
control sanction included the successful completion of the residential program at the
River City Correctional Center. The court also notified Combs that he would be
sentenced to an eight-year prison term, the maximum term for the offense, if he
violated the conditions of his community control.
2
OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} In April 2019, Combs was charged with violating the conditions of his
community control. He pleaded guilty to that charge in August 2019. The trial court
then revoked Combs’s community control and, after a full sentencing hearing,
imposed an eight-year prison term. The court additionally indicated Combs would
be credited “for whatever time he’[d] served.” The clerk announced that the amount
appeared to be 129 days, but also indicated that amount may not have included the
days that Combs was confined at River City. The court then notified Combs he would
receive a “credit” of 129 days and included this credit in the sentencing entry.
Combs did not object when informed of the 129 days of credit.
Assignments of Error
{¶5} Both of Combs’s assignments of error involve his sentence. Pursuant
to R.C. 2953.08(G)(2)(a), we may modify or vacate a felony sentence only if we
clearly and convincingly find that the record does not support the trial court’s
findings under relevant statutes or that the sentence is contrary to law. State v.
Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, quoted in State
v. Jackson, 1st Dist. Hamilton No. C-180162, 2019-Ohio-1688, ¶ 5; State v. White,
2013-Ohio-4225, 997 N.E.2d 629, ¶ 5 (1st Dist.).
{¶6} We first address Combs’s second assignment of error. In essence, he
argues that his eight-year prison term is contrary to law. Specifically, Combs
contends the trial court failed to consider R.C. 2929.11 and 2929.12 when
determining an appropriate sentence.
{¶7} When sentencing Combs for his community-control violation, the trial
court was to be guided by the purposes of felony sentencing set forth in R.C. 2929.11
and the sentencing factors set forth in R.C. 2929.12. See State v. Fraley, 105 Ohio
St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17. But these are not fact-finding
3
OHIO FIRST DISTRICT COURT OF APPEALS
statutes, and absent an affirmative demonstration by Combs to the contrary, we may
presume that the trial court considered them. State v. Bedell, 2018-Ohio-721, 107
N.E.3d 160, ¶ 29 (1st Dist.); State v. Patterson, 1st Dist. Hamilton No. C-170329,
2018-Ohio-3348, ¶ 60. Combs argues that this court cannot presume the trial court
considered the statutes in this case because of the mitigating facts he presented. We
disagree.
{¶8} At the sentencing hearing for the community-control violation, the
trial court noted that Combs was placed on community control after a burglary
conviction and then violated the conditions of his community control in several
significant ways. He walked away from his work detail and failed to return to River
City. After absconding, he was charged in Kentucky with raping the mother of his
children in front of his children. The trial court also solicited facts in mitigation from
defense counsel and the defendant. These included that Combs was young, had a job
waiting for him, and had entered a guilty plea to a reduced sex offense in Kentucky.
In the end, though, the court imposed the eight-year prison term it had told Combs it
would impose if he violated the conditions of his community control. On this record,
Combs has not affirmatively demonstrated that the trial court failed to consider R.C.
2929.11 and 2929.12 when imposing sentence. Accordingly, we overrule the second
assignment of error.
{¶9} In his first assignment of error, Combs argues the trial court
committed plain error when it failed to properly calculate his credit for confinement.
According to Combs, he was not credited for confinement in accordance with the
credit afforded under R.C. 2967.191, including all of the days he was confined at
River City.
4
OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} A felony offender sentenced to prison is entitled to a 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.” R.C. 2967.191. The
trial court has the duty to determine this confinement credit at the sentencing
hearing and include in the sentencing entry the proper amount of the credit. R.C.
2929.19(B)(2)(g)(i). The amount of time served in a community-based correctional
facility qualifies as confinement under R.C. 2967.191 and should be credited towards
a prison sentence after conditions of the community sanctions are violated. See State
v. Napier, 93 Ohio St.3d 646, 648, 758 N.E.2d 1127 (2001); State v. Whited, 12th
Dist. Butler No. CA2018-04-079, 2019-Ohio-18, ¶ 22.
{¶11} The trial court’s failure to properly calculate the amount of
confinement-time credit rises to the level of plain error and renders that part of the
sentence clearly and convincingly contrary to law. See State v. Hargrove, 1st Dist.
Hamilton No. C-120321, 2013-Ohio-1860, ¶ 12. The state concedes that Combs was
not sufficiently credited for all of his confinement, including the time he was
confined at River City, a community-based correctional facility. Consequently, we
sustain the first assignment of error. The cause must be remanded for the trial court
to determine the proper amount of confinement credit to which Combs is entitled.
Conclusion
{¶12} Because the trial court did not properly calculate Combs’s confinement
credit, we vacate that part of Combs’s sentence, and we remand the cause for the trial
court to determine the proper amount of confinement credit to which Combs is
entitled. In all other respects, we affirm.
Judgment affirmed in part, vacated in part, and cause remanded.
MYERS, P.J., and CROUSE, J., concur.
5
OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its own entry on the date of the release of this opinion.
6