State v. Thomas ( 2023 )

[Cite as State v. Thomas, 2023-Ohio-1668.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
No. 111703
v. :
JEFFERY THOMAS, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED IN PART AND REMANDED
RELEASED AND JOURNALIZED: May 18, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-658493-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Gregory J. Ochocki, Assistant Prosecuting
Attorney, for appellant.
Cullen Sweeney, Cuyahoga County Public Defender, and
John T. Martin, Assistant Public Defender, for appellee.
EILEEN A. GALLAGHER, P.J.:
Plaintiff-appellant the state of Ohio appeals the sentence imposed on
defendant-appellee Jeffery Thomas for attempted felonious assault with a one-year
firearm specification. The state argues that the trial court improperly applied jail-
time credit to the mandatory prison term imposed on the firearm specification.
For the reasons that follow, we reverse the trial court’s judgment, in
part, and remand the case for a limited resentencing, with instructions that the trial
court vacate the portion of Thomas’ sentence that applies jail-time credit to the
mandatory prison term imposed on the firearm specification and issue a new
sentencing journal entry that does not include a request to apply jail-time credit to
the mandatory prison term imposed on the firearm specification.
Factual Background and Procedural History
On April 15, 2021, a Cuyahoga County Grand Jury indicted Jeffery
Thomas on three counts: one count of felonious assault with one-, three- and five-
year firearm specifications and notice-of-prior-conviction, repeat-violent-offender
and forfeiture-of-weapon specifications (Count 1); one count of having a weapon
while under disability with a forfeiture-of-weapon specification (Count 2) and one
count of improperly handling firearms in a motor vehicle with a forfeiture-of-
weapon specification (Count 3).
The parties reached a plea agreement. Thomas pled guilty to an
amended count of attempted felonious assault in violation of R.C.
2903.11(A)(2)/2923.02, a third-degree felony, with a one-year firearm specification
and a forfeiture-of-weapon specification (amended Count 1) and one count of having
a weapon while under disability in violation of R.C. 2923.13(A)(2), a third-degree
felony, with a forfeiture-of-weapon specification (Count 2). In exchange for
Thomas’ guilty pleas, the remaining count was nolled.
On June 6, 2022, the trial court sentenced Thomas to an aggregate
prison term of four years. On Count 1, as amended, the trial court sentenced Thomas
to one year on the firearm specification to be served prior to, and consecutive with
36 months on the underlying offense. On Count 2, the trial court sentenced Thomas
to 24 months, to be served concurrently with the sentence imposed on Count 1.1 The
trial court credited Thomas with 430 days of jail-time credit.2
At the sentencing hearing, Thomas’ counsel made the following
request:
I’m going to ask you a couple of things and I know this has been done
before because of COVID. He’s got [a] firearm specification in 658493,
and I believe these cases would have been resolved much sooner had
we not been in the COVID situation. And I’d ask the Court to consider
crediting the time that he served in the county jail, that year, towards
that time. I think that’s fair and proper under the COVID
circumstances, Judge.
The trial court addressed the request as follows during the sentencing
hearing:
Due to the COVID pandemic and its effect on the criminal justice
system, I will put in the journal entry, and I hope that the ODRC
complies with this order, Mr. Thomas will receive credit that he spent
in the county jail to be applied towards the mandatory one-year firearm
specification.
1
The sentences were also ordered to be served concurrently with sentences
imposed in two other cases, CR-20-653007-A and CR-21-658838-A.
2 The parties do not dispute the amount of jail-time credit credited by the trial
court.
The state objected to the allocation of jail-time credit to the firearm
specification. Consistent with its statement at the sentencing hearing, in its June 7,
2022 sentencing journal entry, the trial court included a request that jail-time credit
be applied to the one-year firearm specification as follows: “Due to COVID
pandemic, court is requesting jail time credit to be applied to 1 year firearm spec.”
The state sought leave to appeal pursuant to App.R. 5(C) and R.C.
2945.67. On August 27, 2022, this court granted the state’s motion for leave to
appeal. The state raises the following sole assignment of error for review:
The trial court erred when it requested that defendant’s jail-time credit
be applied to the portion of the sentence imposed for a firearm
specification.
Law and Analysis
The state argues that, pursuant to R.C. 2929.14(B) and the Ohio
Supreme Court’s decision in State v. Moore, 154 Ohio St.3d 94, 2018-Ohio-3227, 111
N.E.3d 1146, jail-time credit cannot be applied toward the portion of a sentence
imposed for a firearm specification. The state asks us to reverse the trial court’s
decision and remand the matter “for a limited resentencing hearing to vacate the
portion of Thomas’ sentence applying jail-time credit to the mandatory prison
sentence imposed for the firearm specification.”
Thomas responds that the state’s appeal should be dismissed because
(1) the issue is not ripe for review unless and until the trial court grants Thomas
judicial release before Thomas serves “an actual one year in prison,” i.e., the length
of the mandatory term, and (2) we lack jurisdiction to hear this appeal because the
trial court did not “decide” to apply jail-time credit to the sentence imposed for the
firearm specification but only “request[ed]” that the Ohio Department of
Rehabilitation and Correction do so.
This court recently addressed each of these same issues in full in State
v. Mims, 8th Dist. Cuyahoga No. 111780, 2023-Ohio-1044. For the reasons set forth
in Mims, we find that the issue is ripe for review, that we have jurisdiction to hear
this appeal and that the trial court’s sentence is contrary to law to the extent it
applies jail-time credit to the mandatory prison term imposed for the firearm
specification. Id. at ¶ 12-39.
Because the trial court’s application of jail-time credit is contrary to
law, we sustain the state’s assignment of error.
We reverse the trial court’s judgment, in part, and remand this matter
for a limited resentencing. On remand, the trial court is directed to vacate the
portion of Thomas’ sentence that applies jail-time credit to the mandatory prison
term imposed on the firearm specification and issue a new sentencing journal entry
that does not include a request to apply jail-time credit to the mandatory prison term
imposed on the firearm specification but instead applies that credit to the
underlying felony sentence. See id. at ¶ 41.
Judgment reversed in part and remanded.
It is ordered that appellant recover from appellee the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE
MICHAEL JOHN RYAN, J., and
SEAN C. GALLAGHER, J., CONCUR