State v. Hodge , 2022 Ohio 2748 ( 2022 )

[Cite as State v. Hodge, 2022-Ohio-2748.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
STATE OF OHIO, :
: Case Nos. 19CA20
Plaintiff-Appellee, : 19CA21
:
v. :
: DECISION AND JUDGMENT
DANITELEEN P. HODGE, : ENTRY
:
Defendant-Appellant. : RELEASED: 8/3/2022
APPEARANCES:
Katherine R. Ross-Kinzie, Assistant State Public Defender, Office of the Ohio
Public Defender, Columbus, Ohio, for Appellant.
Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Andrea M.
Kratzenberg, Assistant Lawrence County Prosecutor, Ironton, Ohio, for Appellee.
Wilkin, J.
{¶1} In this consolidated appeal, Appellant, Daniteleen P. Hodge, appeals
the Lawrence County Court of Common Pleas judgment entry of conviction in
two separate criminal cases. Hodge pleaded guilty to identity fraud, falsification,
and grand theft of a motor vehicle in case number 19-CR-31; and to failure to
appear in case number 19-CR-160. The trial court held a combined sentencing
hearing and imposed a prison term of 11 months for the identity fraud, 6 months
in jail for falsification, and 17 months imprisonment for grand theft of a motor
vehicle. In addition, the trial court ordered Hodge to pay $1,400 in restitution to
Norman E. Gibson, II, the owner of the stolen vehicle. As for the failure to
appear, the trial court sentenced Hodge to 17 months in prison. The trial court
Lawrence App. Nos. 19CA20 & 19CA21 2
ordered all sentences to be served concurrently. Hodge challenges her
sentences and raises four assignments of error for our review.
{¶2} Hodge first claims the trial court committed plain error when it failed
to merge the identity fraud and falsification convictions since they are allied
offenses of similar import. We disagree. Hodge committed two separate acts
with separate animus warranting both convictions. When questioned by law
enforcement, Hodge first denied knowing Mr. Gibson or borrowing a vehicle from
him. But after being informed that the neighbor saw Mr. Gibson’s vehicle at
Hodge’s residence and was driven by her, she recanted her unfamiliarity with Mr.
Gibson by the end of her conversation with law enforcement. Hodge’s denial of
knowing Mr. Gibson was made to obstruct law enforcement’s investigation of the
vehicle’s theft, thus, meeting the elements of the offense of falsification.
{¶3} In the same conversation, Hodge twice gave law enforcement the
social security number of a different individual claiming it was her identifying
information. Hodge did so to avoid being identified because she had an
outstanding arrest warrant. Hodge’s conduct of providing law enforcement with
the identifier of another individual met the elements of identity fraud.
Accordingly, Hodge in separate conduct (different statements) with distinct
purpose committed multiple offenses that do not merge.
{¶4} In the second assignment of error, Hodge maintains the trial court
failed to properly apply the 30-day jail-time credit to all of her concurrent
sentences and is requesting a remand for a nunc pro tunc entry. We disagree
that the jail-time credit was required to be applied to all sentences simply
Lawrence App. Nos. 19CA20 & 19CA21 3
because they were ordered to be served concurrently. This is because Hodge‘s
failure to appear charges were not related to her previously indicted offenses.
We nonetheless remand the matter to the trial court in order to accurately
calculate Hodge’s jail-time credit.
{¶5} In the third assignment of error, Hodge objects to being sentenced to
an offense that was dismissed by the state. Hodge and the state reached a plea
agreement that included dismissing one of the failure to appear offenses.
However, the judgment of conviction entry includes a 17-month prison term for
each count of failure to appear. This is improper. The error is further
compounded by the trial court’s failure at the sentencing hearing to specify which
count it was sentencing Hodge to, Count One, or the dismissed Count Two.
Therefore, we remand the matter for resentencing.
{¶6} In the final assignment of error, Hodge maintains her constitutional
right to equal protection was violated claiming the trial court sentenced her to
prison due to her financial inability to pay restitution. We disagree. First, Hodge
was sentenced for the first time, her sentence was within the sentencing range,
and it was imposed after the trial court considered all the applicable statutory
provisions. Second, a review of the record reveals that any discussion to a
sentence of community control if restitution was paid was pursuant to the state’s
plea offer, not a condition imposed by the trial court.
{¶7} The state initially offered to recommend a sentence of community
control and not to proceed with the filing of new charges relating to Hodge’s
failure to appear, on the condition that she pays restitution at the next pre-trial
Lawrence App. Nos. 19CA20 & 19CA21 4
hearing. The offer was amended after Hodge failed to pay any amount of money
toward restitution. The state’s new offer was to dismiss one of the two counts of
failure to appear if Hodge paid restitution. Hodge failed to pay restitution per the
offer, thus, at disposition, the state and Hodge argued their position as to
sentence. The trial court then imposed the appropriate sentence after
considering the applicable statutory provisions and not because of Hodge’s
financial status. Wherefore, we affirm Hodge’s sentence in case number 19-CR-
31, but based on our resolution of the third assignment of error, we remand for
resentencing in case number 19-CR-160.
FACTS AND PROCEDURAL BACKGROUND
{¶8} In December 2018, Deputy Tyler McGraw responded to a complaint
of a possible theft of a 1993 Oldsmobile Cutless Supreme vehicle owned by
Norman E. Gibson, II. The Deputy made contact with Mr. Gibson at the
Lawrence County Municipal Court parking lot. According to Mr. Gibson, John
Hodge and “Krystal” borrowed the vehicle from him but when he went to retrieve
the vehicle, it was nowhere to be found. After speaking with Mr. Gibson, Deputy
McGraw went to the residence identified by Mr. Gibson as the home of John and
“Krystal.” The Deputy observed an older model van parked in the driveway, but
the license plate was registered to the 1993 Oldsmobile Cutless Supreme.
{¶9} A male subject identified himself as John Hodge and a female who
identified herself as “Krystal F. Hodge” informed Deputy McGraw they did not
know Mr. Gibson and they did not borrow any vehicle from him. The female
provided a social security number that dispatch identified to a different subject
Lawrence App. Nos. 19CA20 & 19CA21 5
from Cleveland, Ohio. The female was again asked by Deputy McGraw to
provide her identification information:
and she gave the same information as before. I told her that we were
having trouble finding her information and she needed to provide the
correct information. She then changed two numbers in the social
security number she had given and it was run through dispatch. This
came back to the Daniteleen Hodge and it was confirmed that there
was a warrant for her arrest. She continued to deny that the name
was her’s however the social security number matched and the date
of birth matched. Daniteleen was taken into custody at this time to
validate what her actual identity is. Once we arrived at the Lawrence
County Jail, [a] picture was used to confirm that the female subject
was in fact Daniteleen Hodge and that she had given false
information including a name and a social security number when she
was asked to identify herself. She also admitted that she provi[ded]
false information and that her actual identity was that of Daniteleen
Hodge.
{¶10} On January 16, 2019, an indictment was issued accusing Hodge of
identity fraud, a fifth-degree felony; falsification, a misdemeanor in the first
degree; and grand theft of a motor vehicle, a fourth-degree felony. Hodge
pleaded not guilty to all three offenses at her arraignment on February 6, 2019.
The trial court continued Hodge’s bond of $2,000 surety cash and $25,000 own
recognizance, but warned Hodge that if she is late, fails to appear to court, or
tests positive for drugs, the court will increase her bond. The matter was then
scheduled for pre-trial on March 13, 2019.
{¶11} At the pre-trial hearing, when Hodge’s case was called by the trial
court, she was not there, although she was present earlier. Because Hodge was
there previously, the trial court did not issue a capias for her arrest and continued
the matter to March 20, 2019. Hodge failed to appear at the pre-trial hearing
scheduled for March 20. This time, the trial court issued a capias “due to her
Lawrence App. Nos. 19CA20 & 19CA21 6
failure to appear before the Lawrence County Court of Common Pleas on March
20, 2019, as Ordered by this Court.”
{¶12} Hodge was arrested per the capias and made her first pre-trial
hearing appearance on March 27, 2019. On May 1, 2019, an indictment was
issued charging Hodge with two counts of failure to appear, both felonies in the
fourth degree. On May 22 Hodge pleaded not guilty to the two new indicted
offenses of failure to appear, and the trial court granted the state’s request to
consolidate the two criminal cases. The matter was continued for another pre-
trial hearing.
{¶13} On June 5, 2019, Hodge appeared before the trial court and
confirmed that she signed a plea agreement and jury waiver forms in both
criminal cases. The state placed on the record that the agreement is for Hodge
to plead guilty to all three offenses in 19-CR-31, and to only one offense of failure
to appear in 19-CR-160, and the state would dismiss the second count of failure
to appear. Hodge expressed her understanding of the plea agreement and the
trial court proceeded with the plea colloquy.
{¶14} The trial court advised Hodge of the constitutional rights she waives
by pleading guilty and the maximum penalty she faces for each offense.
Additionally, the trial court informed Hodge that a guilty plea is a complete
admission she committed the acts as charged. Hodge asserted her
understanding of the court’s notifications and the implications of her guilty plea.
This included Hodge’s understanding that once her guilty plea is accepted, the
Lawrence App. Nos. 19CA20 & 19CA21 7
trial court can proceed to sentencing and is not bound by any sentence
recommendation from the state.
{¶15} Hodge pleaded guilty to the three offenses as charged in 19-CR-31:
identity fraud, falsification, and grand theft of a motor vehicle. She also pleaded
guilty to one count of failure to appear in 19-CR-160. The trial court accepted
Hodge’s guilty pleas and set the matter for sentencing.
{¶16} At sentencing, Hodge’s counsel informed the trial court that she had
some funds as payment for the restitution but she did not have the full amount.
Counsel’s statement prompted the trial court during a bench conference to
communicate the agreement between the parties for a community-control
sanction if Hodge paid the $1,400 restitution, but since she failed to pay, the
parties were free to argue the appropriate sentence.
{¶17} The state requested an aggregate prison term of 34 months: 11
months in prison for the identify fraud conviction, 6 months in jail for the
falsification offense, and 17-month prison term for grand theft of a motor vehicle,
to be served concurrently to each other but consecutively to the 17-month prison
sentence for failure to appear conviction.
{¶18} Hodge’s counsel requested probation and stated “Ms. Hodge did not
show up here empty handed today. She showed up with $600 dollars which is a
significant portion of the agree - - of the restitution that is sought.” Hodge also
addressed the trial court and petitioned for additional time to obtain the
remainder of the restitution, and explained her tardiness to the hearing.
Lawrence App. Nos. 19CA20 & 19CA21 8
{¶19} Before announcing the sentence, the trial court recounted the
history of the case with Hodge failing to appear for court and failing to remit the
full restitution amount even after numerous extensions. The trial court then
imposed the sentence: 11 months for identity fraud, 6 months in jail for
falsification, 17 months for theft of an auto, and 17 months for failure to appear.
The trial court ordered all sentences to run concurrently and for the grand theft of
a motor vehicle, included a $1,400 restitution order to the victim Mr. Gibson. The
state then reminded the trial court that Hodge was entitled to jail-time credit for
time served, but the state and Hodge’s counsel indicated they were not certain of
the number of days. The trial court ordered that Hodge will receive credit for time
served against her sentence and advised Hodge of her right to appeal.
{¶20} The hearing, however, did not conclude because Hodge interjected
and informed the trial court that her social security benefit was deposited and she
could retrieve $700 for payment toward restitution. The trial court reminded
Hodge there was a deal but she failed to hold up her end, and denied her request
for a second chance: “we did and you didn’t show up, you failed to appear,
you’ve been late twice. You have done everything - - I mean, this Court has been
very, very lenient with you up to this point[.]” Moreover, the trial court noted that
it continues to show leniency by imposing an aggregate prison term of 17 months
and not following the state’s recommendation of 34 months, notwithstanding
Hodge’s failure to appear, coming late to court, and extending the time for her to
remit restitution.
Lawrence App. Nos. 19CA20 & 19CA21 9
{¶21} Hodge continued to plead with the judge for a more lenient sentence
but the trial court emphasized that her sentence has been declared and Hodge
has no more chances, albeit it granted her request for bond pending appeal.
{¶22} A couple of weeks later, on July 24, 2019, the trial court conducted
a hearing solely in case number 19-CR-160, that relates to the failure to appear
conviction, to resolve the issue of jail-time credit. Hodge was not present at the
hearing but her counsel was. Hodge’s counsel advised the trial court that the
record of her only having four days is “impossible for that to be accurate,” but he
has no way of providing an accurate tally of her time in jail while charges were
pending. Similarly, the state agreed that the jail-time credit is more than four
days. After a short discussion, Hodge’s counsel informed the trial court “I think
thirty days would probably be a fair number[.]”
{¶23} The trial court acquiesced to counsel’s 30-day stipulation and
granted Hodge 30 days of jail-time credit. The trial court, however, stated that: “if
she can put proof in front of us that its more than thirty days, I’ll do a Nunc pro
tunc Entry and I’ll give her more than thirty days.” (Emphasis sic.) The judgment
of conviction entries are now before us.
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT ERRED IN VIOLATION OF DANITELEEN
HODGE’S RIGHTS UNDER THE DOUBLE JEOPARDY CLAUSE
OF THE FIFTH AMENDMENT TO THE UNITED STATES
CONSTITUTION, ARTICLE I, SECTION 10 OF THE OHIO
CONSTUTITION, AND R.C. 2941.25, WHEN IT FAILED TO
MERGE FOR SENTENCING OFFENSES THAT HAD A SIMILAR
IMPORT, AROSE FROM SAME CONDUCT, AND WERE NOT
COMMITTED SEPARATELY OR WITH A SEPARATE ANIMUS.
Lawrence App. Nos. 19CA20 & 19CA21 10
II. THE TRIAL COURT ERRED IN FAILING TO GRANT
DANITELEEN HODGE CREDIT TOWARD CASE NO. 19-CR-31
FOR TIME THAT SHE WAS HELD ON BOTH CASE NO. 19-CR-
31 AND CASE NO. 19-CR-160 IN VIOLATION OF THE EQUAL
PROTECTION CLAUSE AND R.C. 2967.191.
III. THE TRIAL COURT ERRED WHEN IT INCLUDED A SENTENCE
FOR A NOLLIED COUNT IN THE JUDGMENT ENTRY FOR
CASE NO. 19-CR-160.
IV. THE TRIAL COURT ERRED WHEN IT CONDITIONED A
SENTENCE OF COMMUNITY CONTROL ON DANITELEEN
HODGE’S PAYMENT OF FULL RESTITUTION IN VIOLATION
OF HER RIGHTS TO EQUAL PROTECTION.
Assignment of Error I
{¶24} Hodge asserts the trial court committed plain error by failing to
merge the identity fraud and falsification convictions because they were based on
the same conduct. Hodge claims her two charges are based on her statement
providing law enforcement a different name associated with a different social
security number than her own. Further, the same conduct was committed with
the same animus and resulted in the same harm of delaying officers to identify
Hodge. Hodge thus argues that the convictions should be merged as allied
offenses of similar import.
{¶25} The state disagrees with Hodge’s contentions that the offenses are
based on the same conduct. The state argues the falsification offense is based
on Hodge informing Deputy McGraw that she was not familiar with Gibson and
did not borrow a vehicle from him. And Hodge providing Deputy McGraw with a
different social security number associated with someone other than her own is
the conduct for the identity fraud offense. Therefore, two statements were made
with separate motivation: to mislead the Deputy about the missing vehicle and to
Lawrence App. Nos. 19CA20 & 19CA21 11
avoid being arrested for an outstanding warrant. Consequently, the state asserts
the convictions are not allied offenses of similar import.
{¶26} Hodge responds to the state’s arguments and concedes that Deputy
McGraw’s “narrative supplement does contain the assertion that Ms. Hodge
initially denied knowledge of Mr. Gibson and denied borrowing his Oldsmobile.”
Hodge urges this court not to parse out her statements as they were made in the
same conversation with Deputy McGraw and were committed with the same
animus to avoid responsibility and caused the same harm of delaying the
investigation.
STANDARD OF REVIEW
{¶27} “The Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution affords protections against the imposition of multiple criminal
punishments for the same offense.” State v. Rogers, 143 Ohio St.3d 385, 2015-
Ohio-2459, 38 N.E.3d 860, ¶ 16, citing Hudson v. United States, 522 U.S. 93, 99,
118 S.Ct. 488, 139 L.Ed.2d 450 (1997). The prohibition against multiple
punishments is codified in R.C. 2941.25, which provides:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment
or information may contain counts for all such offenses, but the
defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses
of dissimilar import, or where his conduct results in two or more
offenses of the same or similar kind committed separately or with a
separate animus as to each, the indictment or information may
contain counts for all such offenses, and the defendant may be
convicted of all of them.
Lawrence App. Nos. 19CA20 & 19CA21 12
The Supreme Court of Ohio elaborated that
when determining whether offenses are allied offenses of similar
import within the meaning of R.C. 2941.25, courts must ask three
questions when the defendant’s conduct supports multiple offenses:
(1) Were the offenses dissimilar in import or significance? (2) Were
they committed separately? and (3) Were they committed with
separate animus or motivation? An affirmative answer to any of the
above will permit separate convictions. The conduct, the animus, and
the import must all be considered.
State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31.
{¶28} “The defendant bears the burden of establishing his entitlement to
the protection, provided by R.C. 2941.25, against multiple punishments for a
single criminal act.” State v. Mughni, 33 Ohio St.3d 65, 67, 514 N.E.2d 870(1987). We review de novo the trial court’s merger determination of allied
offenses. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d
1245, ¶ 1. In the matter at bar, Hodge failed to object to the trial court sentencing
her to both identity fraud and falsification. Thus, by failing to raise the issue of
allied offenses of similar import, Hodge
forfeits all but plain error, and a forfeited error is not reversible error
unless it affected the outcome of the proceeding and reversal is
necessary to correct a manifest miscarriage of justice. Accordingly,
an accused has the burden to demonstrate a reasonable probability
that the convictions are for allied offenses of similar import committed
with the same conduct and without a separate animus; absent that
showing, the accused cannot demonstrate that the trial court’s failure
to inquire whether the convictions merge for purposes of sentencing
was plain error.
Rogers at ¶ 3.
Lawrence App. Nos. 19CA20 & 19CA21 13
ANALYSIS
{¶29} Hodge was convicted of falsification in violation of R.C.
2921.13(A)(3),1 that provides:
No person shall knowingly make a false statement, or
knowingly swear or affirm the truth of a false statement previously
made, when any of the following applies: * * * (3) The statement is
made with purpose to mislead a public official in performing the
public official’s official function.
{¶30} For the identity fraud, the conviction was based on Hodge violating
R.C. 2913.49(B)(1), which states:
No person, without the express or implied consent of the other
person, shall use, obtain, or possess any personal identifying
information of another person with intent to do either of the following:
(1) Hold the person out to be the other person.
{¶31} As we review Hodge’s multiple statements to Deputy McGraw, we
agree with the state that Hodge’s convictions are not allied offenses of similar
import. Hodge committed two separate acts with separate animus.
“Animus” is defined for purposes of R.C. 2941.25(B) as “
‘purpose’ or ‘more properly, immediate motive.’” “If the defendant
acted with the same purpose, intent, or motive in both instances,
the animus is identical for both offenses.” Animus is often difficult to
prove directly, but must be inferred from the surrounding
circumstances. (Citations omitted).
State v. Fisher, 4th Dist. Washington No. 13CA25, 2014-Ohio-4257, ¶ 17.
{¶32} During Hodge’s interaction with Deputy McGraw, who was
investigating the theft of Mr. Gibson’s Oldsmobile, Hodge denied knowing Mr.
1
In case number 19-CR-31, the indictment, guilty plea judgment form, and the judgment of
conviction entry incorrectly identified the falsification offense numerically as a violation of
subsection (2). The wording used, however, in the indictment and at the change of plea hearing
correspond to the language in subsection (3). Neither party addresses this clerical discrepancy
and based on their arguments, none contest that subsection (3) of R.C. 2921.13(A) is the one
that Hodge violated. Accordingly, we disregard the numerical error for purposes of our analysis.
Lawrence App. Nos. 19CA20 & 19CA21 14
Gibson or having borrowed a vehicle from him. This statement was false.
Hodge acknowledged her false declaration after Deputy McGraw confronted her
with the neighbor reporting previously seeing the Oldsmobile and observing
Hodge driving it. This satisfies the elements of the falsification offense and we
can discern from the surrounding circumstances that Hodge’s animus was to
hinder Deputy McGraw’s investigation of Mr. Gibson’s missing vehicle.
{¶33} Hodge’s criminal conduct did not end there. Hodge continued to
mislead Deputy McGraw but now to avoid being arrested. Hodge provided
Deputy McGraw the social security number of someone else claiming to be her
own. This was not in error in which she provided the same information a second
time. The social security number was identifying information of a different
individual residing in Cleveland, Ohio. Hodge, thus, committed identity fraud.
The animus for this offense was to obscure her identity as there was an
outstanding warrant for Hodge’s arrest.
{¶34} We decline Hodge’s assertion that we consider her complete
interaction with Deputy McGraw as one conduct—one statement. Hodge does
not present any legal authority or persuasive argument why her statement
denying to know Mr. Gibson should not be considered in isolation with her future
proclamation that the social security number she provided was her identifying
information. Rather, we find multiple statements made during one conversation
similar to multiple sexual activity occurring in the same assault. “ ‘[R]ape
involving different types of sexual activity, such as vaginal intercourse, digital
penetration, and oral intercourse, arise from distinct conduct and are not
Lawrence App. Nos. 19CA20 & 19CA21 15
considered allied offenses, even when committed during the same sexual
assault.’ ” State v. Lykins, 4th Dist. Adams No. 18CA1079, 2019-Ohio-3316, ¶
64, quoting State v. Townsend, 8th Dist. Cuyahoga No. 107186, 2019-Ohio-
1134, ¶ 70. Hodge made separate statements with a separate animus for each
statement irrespective they were rendered in the same conversation.
{¶35} We find no plain error by the trial court in imposing separate
sentences for Hodge’s identity fraud and falsification offenses. Hodge’s
convictions are affirmed and her first assignment of error is overruled.
ASSIGNMENT ERROR II
{¶36} Under the second assignment of error, Hodge argues the trial court
by awarding the 30-day jail-time credit against one of her concurrent sentences
and not against all of them violated the Equal Protection Clause and R.C.
2967.191. According to Hodge, the trial court is required to apply the jail-time
credit to all prison terms when the sentences are ordered to be served
concurrent to each other. And here, the trial court failed to comply with the law
and only applied the 30-day jail-time credit for the failure to appear sentence in
19-CR-160. The state takes no position as to this assignment of error.
ANALYSIS
{¶37} “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, ¶ 7.
R.C. 2967.191(A) codifies a defendant’s equal protection right to credit for prior
incarceration in which it states:
Lawrence App. Nos. 19CA20 & 19CA21 16
The department of rehabilitation and correction shall reduce
the prison term of a prisoner, as described in division (B) of this
section, 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 (B)(2)(g)(i) of section 2929.19of the Revised Code, and
confinement in a juvenile facility.
The Supreme Court of Ohio held:
when concurrent prison terms are imposed, courts do not have the
discretion to select only one term from those that are run concurrently
against which to apply jail-time credit. R.C. 2967.191 requires
that jail-time credit be applied to all prison terms imposed for charges
on which the offender has been held. If courts were permitted to
apply jail-time credit to only one of the concurrent terms, the practical
result would be, as in this case, to deny credit for time that an
offender was confined while being held on pending charges. So long
as an offender is held on a charge while awaiting trial or sentencing,
the offender is entitled to jail-time credit for that sentence; a court
cannot choose one of several concurrent terms against which to
apply the credit.
Fugate at ¶ 12.
{¶38} Hodge relies blanketly on the holding in Fugate in support of her
claim that she is entitled to the 30-day jail-time credit for all of her concurrent
sentences. But as we have previously held “an offender is not entitled to jail-
time credit for any period of incarceration that arose from facts that are separate
and apart from those on which his current sentence is based.” State v.
Carpenter, 4th Dist. Meigs No. 16CA11, 2017-Ohio-9038, ¶ 34, citing State v.
DeMarco, 8th Dist. Cuyahoga No. 96605, 2011-Ohio-5187, ¶ 10. Accordingly,
“R.C. 2967.191 is inapplicable when the offender is imprisoned as a result of
another unrelated offense.” Id. “This means that there is no jail-time credit for
Lawrence App. Nos. 19CA20 & 19CA21 17
time served on unrelated offenses, even if that time served runs concurrently
during the predetention phase of another matter.” Id.{¶39} In the matter at bar, while Hodge was on bail during her falsification,
identity fraud and grand theft of a motor vehicle criminal proceedings, she left
early in one hearing and failed to appear at another hearing. As a result, a new
indictment was filed in May accusing her of committing two counts of failure to
appear offenses, resulting in a new criminal proceeding. These cases are not
related to each other and the jail-time served under the prior proceeding, 19-CR-
31, should not apply to the failure to appear proceeding, 19-CR-160. See State
v. Keys, 10th Dist. Franklin No. 99AP-1116, 2000 WL 1455308, *3 (Sept. 29,
2000) (“the commission of the first offense (possession of a controlled
substance) did not constitute the second offense (failure to appear). Because the
offenses are unrelated, defendant is not entitled to additional jail time credit
under R.C. 2967.191.”)
{¶40} The trial court here did not apply any jail-time credit in 19-CR-31
and instead found that “All credit for time served has been taken into
consideration in case number 19-CR-60.”2 This was erroneous because “an
offender is not entitled to jail-time credit for any period of incarceration that arose
from facts that are separate and apart from those on which his current sentence
is based.” Carpenter at ¶ 34, citing State v. DeMarco, 8th Dist. Cuyahoga No.
96605, 2011-Ohio-5187, ¶ 10. Therefore, any time served prior to the initiation of
2
The correct case number is 19-CR-160.
Lawrence App. Nos. 19CA20 & 19CA21 18
the failure to appear proceedings should not be calculated as jail-time credit in
that case, but should be calculated for the prior proceedings.
{¶41} We are mindful that calculating jail-time credit can be complicated
when a defendant is charged with multiple crimes committed at different times.
See Id. But a defendant is entitled to credit for all time served and “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 sentence.”
State ex rel. Rankin v. Ohio Adult Parole Auth., 98 Ohio St. 3d 476, 2003-Ohio-
2061, 786 N.E.2d 1286, ¶ 7. Although not argued by Hodge, we must address
the 30-day jail-time credit determination. The calculation is not supported by the
record and we cannot reliably ascertain that it was stipulated to.
{¶42} At the hearing to address jail-time credit solely on the failure to
appear matter, 19-CR-160, the state informed the trial court that the “jail has
records saying [Hodge] has four days of credit.” Without any contradictory
documentation, both the state and Hodge’s counsel found the number to be
inaccurate based on their recollection and thought it would be more than four
days. The trial court interjected “I’m thinking about just picking a number[,]” but
did not believe “there’d be more than thirty days.” Hodge’s counsel thought 30
days was a fair number and agreed to stipulate to that number. The trial court
then declared: “There we go. Thirty days and I know we’ve got - - she did not
serve thirty days. * * * And I tell ya what, if she can put proof in front of us that its
more than thirty days, I’ll do a Nunc pro tunc Entry and I’ll give her more than
thirty days.” (Emphasis sic.) Hodge’s counsel agreed: “Fill thirty days in and you
Lawrence App. Nos. 19CA20 & 19CA21 19
can just put my signature on it.” The state reiterated that Hodge “deserves credit
for every day she’s served.” The trial court ended the discussion by again finding
that “we tried to err on the side of caution and give her more time.”
{¶43} The trial court did not conduct any hearing to determine the jail-time
credit relating to the initial criminal proceedings, 19-CR-31 (identity fraud,
falsification, and theft of a motor vehicle.) Because the trial court did not apply
any jail-time credit in case number 19-CR-31 and failed to properly ascertain the
number of days Hodge was incarcerated during both proceedings, we remand
the matter for the trial court to accurately calculate the jail-time credit Hodge is
entitled to for each of her criminal cases. Based on our resolution of the issue,
Hodge’s second assignment of error is sustained in part.
ASSIGNMENT OF ERROR III
{¶44} Hodge requests under the third assignment of error for us to remand
the case to the trial court in 19-CR-160 to issue a nunc pro tunc entry. At the
sentencing hearing, the trial court imposed a sentence for only one of the failure
to appear offenses since the state dismissed the second offense, but in the
judgment of conviction entry, the court imposed a sentence for both offenses.
Hodge also notes the guilty plea entry contains a clerical error in which it states
Hodge pleaded guilty to the second count of failure to appear, but Hodge
pleaded guilty to the first count. The state takes no position as to this
assignment of error.
ANALYSIS
Lawrence App. Nos. 19CA20 & 19CA21 20
{¶45} The Supreme Court of Ohio made clear a judgment of conviction
entry “ ‘requires a full resolution of those counts for which there were convictions.
It does not require a reiteration of those counts and specifications for which there
were no convictions, but were resolved in other ways, such as dismissals, nolled
counts, or not guilty findings.’ ” (Emphasis sic.) State ex rel. Davis v. Cuyahoga
Cty. Ct. of Common Pleas, 127 Ohio St. 3d 29, 2010-Ohio-4728, 936 N.E.2d 41,
¶ 2, quoting State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d
163, syllabus. Therefore, “a court cannot sentence a defendant on a count that
has been dismissed.” State v. Smead, 9th Dist. Summit No. 24903, 2010-Ohio-
4462, ¶ 10.
{¶46} In the matter at bar, the trial court committed error by including a
sentence for Count Two, failure to appear, in its judgment of conviction entry
since the count was dismissed. Under normal circumstances, we would simply
remand the matter to the trial court to issue a nunc pro tunc entry to correct the
clerical error when at the disposition hearing the court did not impose a sentence
for the dismissed count. See State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d
353, 2006-Ohio-5795, 856 N.E.2d 296, ¶ 19 (Trial courts retain jurisdiction to
correct judgment entries to reflect what the court actually decided.)
{¶47} We are unable to do so here and must remand the matter in case
number 19-CR-160 for resentencing. This is because at the disposition hearing,
the trial court failed to specify which count of the failure to appear conviction it
sentenced Hodge to: “In 19-CR-160, the Failure to Appear case, I’m sentencing
you to seventeen months in the appropriate penal institution[.]” Further, in the
Lawrence App. Nos. 19CA20 & 19CA21 21
judgment of conviction entry it incorrectly specifies that Hodge pleaded guilty to
both counts of failure to appear and that the trial court found her guilty of both
counts.
{¶48} We are therefore unable to ascertain as to which count of failure to
appear the trial court imposed the 17-month prison term. Accordingly, the matter
is remanded to the trial court for resentencing.3 Based on our resolution of the
issue, Hodge’s third assignment of error is sustained in part.
ASSIGNMENT OF ERROR IV
{¶49} Under the fourth assignment of error, Hodge maintains the trial court
violated her constitutional right to equal protection by conditioning a community-
control sentence to her paying the full $1,400 restitution amount. Thus,
according to Hodge, the trial court imprisoned her based solely on her inability to
pay, and the court failed to consider alternative sentences.
{¶50} The state asserts Hodge’s reliance on Bearden v. Georgia, 461 U.S.
660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), is misplaced since it is limited to a
trial court’s imprisonment of a probationer for failing to make required payments.
Here, Hodge was sentenced for the first time. Further, Hodge was aware of the
maximum sentence she faced by pleading guilty to the four offenses, and her
sentence was less than the maximum 48 months in prison.
3
The remand for resentencing is limited to the sentence imposed in 19-CR-160 because “only the
sentences for the offenses that were affected by the appealed error are reviewed de novo; the
sentences for any offenses that were not affected by the appealed error are not vacated and are
not subject to review by the trial court.” State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669,
951 N.E.2d 381, ¶ 15, citing State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d
824, paragraph three of the syllabus.
Lawrence App. Nos. 19CA20 & 19CA21 22
{¶51} In response, Hodge requests we extend Bearden to the facts of the
case here because the trial court sentenced her to prison “where it otherwise
found community control an appropriate penalty based solely on her inability to
pay full restitution.”
ANALYSIS
{¶52} “[C]onstitutional guaranties of due process and equal protection
both call for procedures in criminal trials which allow no invidious discriminations
between persons and different groups of persons.” Griffin v. Illinois, 351 U.S. 12,
17, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Therefore, “the aim of our entire judicial
system – all people charged with crime must, so far as the law is concerned,
‘stand on an equality before the bar of justice in every American court.’ ” Id.,quoting Chambers v. Florida, 309 U.S. 227, 241, 60 S.Ct. 472, 84 L.Ed. 716(1940). Wherefore, the United States Supreme Court held that
a State may not constitutionally imprison beyond the maximum
duration fixed by statute a defendant who is financially unable to pay
a fine. A statute permitting a sentence of both imprisonment and fine
cannot be parlayed into a longer term of imprisonment than is fixed
by the statute since to do so would be to accomplish indirectly as to
an indigent that which cannot be done directly. We have no occasion
to reach the question whether a State is precluded in any other
circumstances from holding an indigent accountable for a fine by use
of a penal sanction. We hold only that the Equal Protection Clause
of the Fourteenth Amendment requires that the statutory ceiling
placed on imprisonment for any substantive offense be the same for
all defendants irrespective of their economic status.
Williams v. Illinois, 399 U.S. 235, 243-244, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970).
{¶53} The following year, the United States Supreme Court in Tate v.
Short, held that “the Constitution prohibits the State from imposing a fine as a
sentence and then automatically converting it into a jail term solely because the
Lawrence App. Nos. 19CA20 & 19CA21 23
defendant is indigent and cannot forthwith pay the fine in full.” 401 U.S. 395,
398, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971).
{¶54} Turning now to Bearden in which the United States Supreme Court
was asked to determine “whether the Fourteenth Amendment prohibits a State
from revoking an indigent defendant’s probation for failure to pay a fine and
restitution.” 461 U.S. 660, 661, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). The
court concluded that “if the State determines a fine or restitution to be the
appropriate and adequate penalty for the crime, it may not thereafter imprison a
person solely because he lacked the resources to pay it.” Id. at 667-668. The
court thus held:
in revocation proceedings for failure to pay a fine or restitution, a
sentencing court must inquire into the reason for the failure to pay. If
the probationer willfully refused to pay or failed to make sufficient
bona fide efforts legally to acquire the resources to pay, the court
may revoke probation and sentence the defendant to imprisonment
within the authorized range of its sentencing authority.
Id. at 672.
{¶55} We agree with the state that Bearden is inapplicable. The
defendant in Bearden was sentenced to probation and as a condition was
ordered to pay restitution. Bearden at 662. The state moved to revoke
Bearden’s probation after he failed to pay the full restitution amount, which the
trial court granted. Id. at 663. The court revoked his probation and sentenced
Bearden to prison. Here, on the other hand, Hodge was facing sentencing for
the first time and not as a probation violation. This is a critical distinction as we
find the Twelfth District Court of Appeals’ decision in State v. West persuasive.
In West the court concluded Bearden was limited to imprisonment as a result of a
Lawrence App. Nos. 19CA20 & 19CA21 24
probationer failing to make the required payments and not to defendants facing
sentencing for the first time. 2018-Ohio-640, 106 N.E.3d 96, ¶ 39-40 (12th Dist.).
In West, the Twelfth District reiterated:
“[t]he Supreme Court’s decision in Bearden * * * is limited and ‘stands
only for the proposition that the court cannot imprison a probationer
for failure to make required payments unless the probationer failed
to make bona fide efforts to pay and alternatives to imprisonment are
inadequate in a particular situation.’ ” (Emphasis sic.) State v. Pickett,
12th Dist. Warren No. CA2014-09-115, 2015-Ohio-972, 2015 WL
1159701, ¶ 19, quoting State v. Bell, 264 Or.App. 230, 233, 331 P.3d
1062 (2014).
Unlike the defendant in Bearden, West was not a probationer
being sentenced to a prison term for his failure to pay previously
ordered restitution. Rather, West was a defendant facing sentencing
for the first time after entering a guilty plea to two second-degree
felonies. Prior to June 5, 2017, the court had not imposed a sentence
on West and had not ordered restitution. When West appeared
before the court on that date, the court was required to impose a
sentence in compliance with Chapter 2929 of the Revised
Code. R.C. 2929.13(D)(1) provides a presumption in favor of a
prison term for a second-degree felony offense, and R.C.
2929.14(A)(2) specifies that the adequate remedy for such an
offense is a prison term of “two, three, four, five, six, seven, or eight
years.” Therefore, when the court imposed a six-year prison term on
West after considering the principles and purposes of sentencing
and the seriousness and recidivism factors set forth in R.C. 2929.11
and 2929.12, the court was not penalizing West for not having the
funds to repay his victims. When West appeared before the court on
June 5, 2017, he was in the same position, facing the same potential
sentence, that he had been in when he initially entered his guilty plea
in May 2015. The statutory ceiling placed on imprisonment for West’s
offenses was the same for any defendant convicted of a second-
degree felony, regardless of the defendant’s economic
status. See Williams, 399 U.S. at 244, 90 S.Ct. 2018.
Id.{¶56} Similarly here, Hodge was sentenced for the first time and faced the
same sentencing range as any other defendant with the same convictions. And
Hodge does not dispute that the trial court complied with the statutory provisions
Lawrence App. Nos. 19CA20 & 19CA21 25
before imposing the aggregate prison term of 17 months. An imprisonment that
is within the “authorized range of its statutory authority.” Bearden at 672.
Furthermore, at disposition, the trial court advised Hodge that the court continues
to be lenient with her and elected not to follow the state’s recommendation of 34
months imprisonment, despite the fact that Hodge was late to several court
hearings and failed to appear to one of the hearings.
{¶57} Moreover, it was the state that recommended a community-control
sanction if Hodge paid full restitution to Mr. Gibson. The trial court merely
reiterated the state’s offer and its inclination to accept it.
{¶58} The state made the first plea offer at the pre-trial hearing of March
27. During a bench conference, the trial court advised Hodge that new charges
are forthcoming, but then the state exclaimed that restitution is $1,400 and that
an offer is on the table in which the state would recommend a probation sentence
of 28 months. The Court then declared that the alternative sentence would be 17
months in prison. Hodge’s counsel discussed the state’s offer with her and the
bench conference concluded.
{¶59} Counsel notified the court that Hodge “can come up with that money
in about two months.” Hodge’s counsel inquired whether the court wished to
proceed with the plea today and continue the matter for sentencing, or place
Hodge on house arrest or GPS monitoring in order for her to obtain the restitution
money. The trial court scheduled the matter for trial on June 24, with the final
pre-trial hearing on May 22. Before concluding the hearing, the trial court stated
that Hodge
Lawrence App. Nos. 19CA20 & 19CA21 26
can plead that day pursuant to the offer of the State and I will accept
it. If she doesn’t, I would not expect her to plea at that point because
she’s getting seventeen months incarceration in the appropriate
penal institution that’s why I wanted to go ahead and set the trial date
so that we don’t wait two months and then come in no restitution[.]
{¶60} Hodge’s counsel agreed with the trial court’s statement. The trial
court reiterated the state’s interest in getting restitution for the victim in this case.
Hodge was also reminded that the state will file new charges for her failure to
appear in court, but will be inclined to dismiss the charges if restitution is paid.
Hodge responded that she understood the terms of the state’s offer and that on
May 22, if she has the restitution amount, the state will not proceed with the new
charges of failure to appear.
{¶61} On May 22, Hodge pleaded not guilty to the new indicted offenses
of failure to appear. The trial court placed on the record the state’s amended
plea offer:
And then it was my understanding, based on the agreement
that was discussed last time, if full restitution was paid today, this
would end up being a Community Control case and if restitution was
not paid uh, the State would entertain a plea of - - plea to the charges
in 19-CR-31, seventeen months incarceration in the appropriate
penal institution and would dismiss the charges in 19-CR-160. Or if
no agreement, we would just proceed on all cases.
{¶62} Neither Hodge nor her counsel contested the trial court’s recitation
of the state’s plea offer and informed the trial court: “Ms. Hodge does not have
the restitution available.” Hodge explained that she is on a fixed income but she
could obtain $400 by June 1, and the remainder of the money by July 1. Hodge’s
counsel then requested a continuance in order to give Hodge more time to obtain
the money “with the understanding that any prior deal that had been made was
commissioned on her paying today, which has not happened.” The trial court
Lawrence App. Nos. 19CA20 & 19CA21 27
questioned Hodge’s sincerity since if she can obtain $400 a month on her fixed
income, she should have had that amount for the months of April and May. The
following exchange then occurred:
[Hodge]: Well, that’s what I’m saying - - I’ll have - - that’s what I’m
saying, now I will have it Friday. This come - - not this Friday …
[Judge]: You’ll have it all?
[Hodge]: … but the follow - - yeah, I have it in the 1st week of June
is when I’ll have it.
[Judge]: Every bit of it?
[Hodge]: Yeah.
{¶63} At the conclusion of the change of plea hearing, the trial court
scheduled the matter for disposition indicating that the future sentencing date
gives Hodge another chance to obtain the restitution amount. At the sentencing
hearing, the trial court repeated the agreement for community-control sanction if
restitution was paid. But because Hodge failed to obtain the full restitution
amount, “we’ll just argue sentencing.” The trial court proceeded with the hearing
by first evaluating arguments from both counsel of their position on sentencing
and statements from Hodge. The trial court then applied the statutory provisions
to Hodge’s criminal actions and her conduct at the court proceedings before
announcing sentence.
{¶64} We overrule Hodge’s fourth assignment of error since her claims
lack legal merit and are not supported by the record of the case.
CONCLUSION
{¶65} We affirm Hodge’s convictions and her sentence for identity fraud,
falsification, and grand theft of a motor vehicle. With regard to those offenses,
however, we remand the matter for the limited purpose of calculating Hodge’s
Lawrence App. Nos. 19CA20 & 19CA21 28
jail-time credit. We similarly affirm Hodge’s failure to appear conviction, but
remand that case for resentencing.
JUDGMENT IS AFFIRMED IN PART AND REVERSED IN PART AND THE
CAUSE IS REMANDED.
Lawrence App. Nos. 19CA20 & 19CA21 29
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND
REVERSED IN PART and the CAUSE IS REMANDED. Appellant and appellee
shall split equally the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Lawrence County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS
COURT, it is temporarily continued for a period not to exceed 60 days upon the
bail previously posted. The purpose of a continued stay is to allow Appellant to
file with the Supreme Court of Ohio an application for a stay during the pendency
of proceedings in that court. If a stay is continued by this entry, it will terminate at
the earlier of the expiration of the 60-day period, or the failure of the Appellant to
file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court
of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to
expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Smith, P.J. and Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: ____________________________
Kristy S. Wilkin, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.