State v. Foust ( 2022 )

[Cite as State v. Foust, 2022-Ohio-3187.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
CRAWFORD COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 3-21-27
v.
FINLEY E. FOUST, JR., OPINION
DEFENDANT-APPELLANT.
Appeal from Crawford County Common Pleas Court
Trial Court No. 17-CR-0260
Judgment Reversed and Cause Remanded
Date of Decision: September 12, 2022
APPEARANCES:
Howard A. Elliott for Appellant
Daniel J. Stanley for Appellee
Case No. 3-21-27
SHAW, J.
{¶1} Defendant-Appellant, Finley E. Foust, Jr. (“Foust”), appeals from the
December 2, 2021 judgment entry of the Crawford County Court of Common Pleas.
Facts and Procedural History
{¶2} On September 26, 2017, Foust was charged in a three-count indictment
on the following offenses: receiving stolen property, a fourth degree felony (Count
1); receiving stolen property, a fifth degree felony (Count 2); and engaging in a
pattern of corrupt activity, a second degree felony (Count 3). Foust entered into a
negotiated plea agreement, pled guilty to all three counts, and was sentenced to an
agreed sentence recommendation of a twelve-month prison term on Count 1, an
eleven-month prison term on Count 2, and a three-year prison term on Count 3, all
to be served consecutively for a total prison term of four years and eleven months
(with consideration of judicial release). The trial court granted him 74 days of jail-
time credit up to November 13, 2017, the date of sentencing.
{¶3} Thereafter, on August 21, 2018, Foust filed a motion for judicial
release, which the trial court granted on September 20, 2018. Foust was then placed
on five years of community control. The trial court stated:
Defendant’s Motion is granted and the remainder of the prison
sentence imposed in the above-captioned case(s) be and hereby is
suspended. The Court hereby reserves jurisdiction to reimpose the
remaining prison time, and the Defendant is hereby placed on
Community Control for a period of five (5) years under the
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standard conditions and terms of the Crawford County Probation
Department.
(Emphasis added.) (Doc. No. 23).
{¶4} Subsequently, on November 4, 2020, Foust appeared before the trial
court for a hearing on a community control violation where the trial court continued
his community control. Thereafter, on November 30, 2021, following community
control violations, the trial court revoked his judicial release community control. At
the sentencing hearing, the trial court judge stated: “I’m going to reimpose a prison
sentence, however, I’m not going to reimpose a prison sentence on all three
counts[.]” (Nov. 30, 2021 Tr. at 19). The judge explained: “On Count 1 in which
the Defendant was sentenced to 12 months in prison, I’m going to terminate that as
unsuccessful. So I will not reimpose that 12 month prison sentence.” (Id.). The
judge continued: “Count 2 and Count 3, I will reimpose those two prison sentences,
so that is three years on Count 2, 11 months on Count 3, so I’m reimposing 3 years
and an 11 month prison sentence.” (Emphasis added.) (Id.).
{¶5} The trial court judge further explained: “[T]he reason I’m doing this is
because while I believe a prison sentence needs to be reimposed in this case, I
listened to the Defendant, I do believe he shows remorse, I do believe there’s some
factors and because of that I’m willing to not impose the entire prison sentence
because of that. Now, Mr. Foust, you’ve got a significant amount of time in, jail
and prison, all your jail and prison will go to Counts 2 and Counts 3[.]” (Id.).
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{¶6} The trial court’s December 2, 2021 judgment entry then states that the
following prison sentence is “re-imposed:” “11 months prison on Count 2 and to 3
years prison on Count 3, to be served consecutively for a total of 3 years and 11
months prison, with jail time credit. Count 1 shall be terminated as unsuccessful.”
(Doc. No. 49). The entry further states as follows regarding jail-time credit:
“Defendant has served 74 jail time credit days before being sentenced to prison on
November 13, 2017. Defendant has served 30 jail time credit days including the
date of sentence of November 30, 2021 since judicial release for a total of 104 jail
time credit days.” (Id.). It is from this judgment entry that Foust appeals, asserting
the following assignment of error for our review.
Assignment of Error
The trial court is obligated to determine at the sentencing hearing
how many days of credit the Defendant is entitled to for time
served with respect to the offense at hand. The failure to do so is
error requiring the matter be reversed for an appropriate
determination by the trial court at a sentencing hearing.
{¶7} In his sole assignment of error, Foust contends that the trial court erred
when it failed to determine his jail-time credit at his sentencing hearing. Foust
asserts that the trial court failed to comply with its statutory obligation under R.C.
2929.19(B)(2)(g)(i) by not announcing the number of days of jail-time credit that
he was entitled to for time served at this hearing and has not afforded him a correct
credit for time served. (Appellant’s Brief at 9).
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Legal Standard
{¶8} R.C. 2929.19(B)(2)(g)(i) states that:
(B)(2) * * * [I]f the sentencing court determines at the sentencing
hearing that a prison term is necessary or required, the court shall
do all of the following:
***
(g)(i) Determine, notify the offender of, and include in the
sentencing entry the total number of days, including the
sentencing date but excluding conveyance time, that the offender
has been confined for any reason arising out of the offense for
which the offender is being sentenced and by which the
department of rehabilitation and correction must reduce the
definite prison term imposed on the offender as the offender’s
stated prison term * * * . The court’s calculation shall not include
the number of days, if any, that the offender served in the custody
of the department of rehabilitation and correction arising out of
any prior offense for which the prisoner was convicted and
sentenced.
{¶9} Next, R.C. 2929.20, which governs judicial release, provides in
pertinent part:
If the court grants a motion for judicial release under this section,
the court shall order the release of the eligible offender, shall place
the eligible offender under an appropriate community control
sanction, under appropriate conditions, and under the
supervision of the department of probation serving the court and
shall reserve the right to reimpose the sentence that it reduced if
the offender violates the sanction.
R.C. 2929.20(K). Thus, an offender, like Foust, who has been granted judicial
release “ ‘has already served a period of incarceration, and the remainder of that
prison sentence is suspended pending either the successful completion of a period
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of community control or the [offender’s] violation of a community control
sanction.’ ˮ (Emphasis added.) State v. Davis, 3d Dist. Defiance No. 4-21-03, 2021-
Ohio-3790, ¶ 5, quoting State v. Alexander, 3d Dist. Union No. 14-07-45, 2008-
Ohio-1485, ¶ 7.
Legal Analysis
{¶10} A review of the record clearly indicates that the trial court, after
revoking judicial release at the hearing, committed to Foust receiving credit for any
days that he had spent in jail and prison. (Nov. 30, 2021 Tr. at 20). However, in its
judgment entry of sentence, the trial court only noted the prior “jail time” with no
reference to prior “prison time.” Moreover, the record shows that following Foust’s
violation of judicial release, the trial court, with the exception of the charge that was
“dismissed,” imposed the entire original prison terms for his offenses, rather than
reimposing the balance of his prison terms as required by R.C. 2929.20(K).
{¶11} As noted earlier, the record shows that in its judgment granting judicial
release, the trial court specifically suspended the remaining portion of Foust’s
prison sentence and specifically reserved jurisdiction to allow it to reimpose the
remaining prison time. In sum, it is our view that requiring the trial court to
reimpose only the balance of the previously imposed prison sentence, as opposed to
reimposing the entire original sentence and then purporting to deduct credit for both
prior “prison time” served as well as prior “jail time” served, not only avoids
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unnecessary issues as to the calculation of prison time by the trial court instead of
the Department of Rehabilitation and Correction, but is also more consistent with
the language of R.C. 2929.20(K), and our prior case law, as well as the language of
the trial court’s own judgment entry granting judicial release in this case.
{¶12} As for jail-time credit, the number of days of jail-time credit that the
trial court credited Foust when it sentenced him in this case, specifically 104 days,
is reflected in its judgment entry of December 2, 2021. We have recognized that
the Department of Rehabilitation and Correction has the duty to apply jail-time
credit, however, the trial court has the responsibility of determining the number of
days to be credited. State v. Mills, 3d Dist. Auglaize Nos. 2-22-09 and 2-22-10,
2022-Ohio-2821, ¶ 8. It is then consistent for the trial court to determine the number
of days of jail-time credit that Foust is entitled to have credited toward the remaining
balance of his original sentence pursuant to R.C. 2929.19(B)(2)(g)(i), which the trial
court clearly did in this case. To this extent, Foust’s assignment of error is
overruled.
{¶13} However, based on the foregoing analysis regarding the trial court’s
reimposition of Foust’s entire original sentence on Counts 2 and 3 instead of the
balance of the previously imposed sentence, Foust’s sole assignment of error is
sustained. Accordingly, we reverse the sentence imposed by the trial court and
remand this case for the trial court to properly reimpose the balance remaining on
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Foust’s original prison terms on the two counts imposed consistent with its own
judgment entry granting judicial release subject only to the amount of “jail-time”
credit in accordance with R.C. 2929.19(B)(2)(g)(i).
Conclusion
{¶14} Having found error prejudicial to the Appellant in the particulars
assigned and argued, the judgment of the Crawford County Court of Common Pleas
is reversed. This cause is remanded to the trial court for further proceedings
consistent with this opinion.
Judgment Reversed and
Cause Remanded
MILLER and WILLAMOWSKI, J.J., concur.
/jlr
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