State v. Woten ( 2013 )

[Cite as State v. Woten, 2013-Ohio-1394.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-12-40
v.
ASHLEY N. WOTEN, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2011 0419
Judgment Affirmed
Date of Decision: April 8, 2013
APPEARANCES:
Todd D. Wolfrum for Appellant
Jana E. Emerick for Appellee
Case No. 1-12-40
PRESTON, P.J.
{¶1} Defendant-appellant, Ashley N. Woten, appeals the Allen County
Court of Common Pleas’ judgment entry finding her in violation of her
community control and imposing a one-year term of imprisonment consecutive to
a one-year term of imprisonment Woten was serving in a related case out of Van
Wert County with credit for 132 days. We affirm.
{¶2} On December 12, 2011, Woten waived her right to an indictment, and
the State filed a bill of information charging her with one count of receiving stolen
property in violation of R.C. 2913.51(A), a fifth degree felony. (Doc. Nos. 3-4).
The Allen County charges stem from Woten being subsequently caught with credit
cards belonging to Lima Painting and Sandblasting, which was the victim of a
breaking and entering offense. (Jan. 25, 2012 Tr. at 3).1
{¶3} Also on December 12, 2011, the trial court held a hearing on the bill
of information, and Woten entered a plea of guilty pursuant to a plea agreement.
(Doc. Nos. 8-9). In exchange for Woten’s guilty plea, the State asked for a pre-
sentence investigation (“PSI”) report, requested that sentencing occur after
December 21, 2011 when Woten was to be sentenced in Van Wert County, and the
State would consider Woten for placement in the WORTH center. (Doc. No. 8).
1
Apparently, Woten and her boyfriend, Colt Morris, stole from businesses located in Adams County,
Indiana, Van Wert County, and Allen County, including a business owned by Morris’ family to support
their heroin addiction. As a result, Woten had charges/cases in all three jurisdictions pending/proceeding
around the same time. (See Jan. 25, 2012 Tr. at 4, 7; May 2, 2012 Tr. at 8; Aug. 27, 2012 Tr. at 7); (See
also PSI).
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(Dec. 12, 2011 Tr. at 5). The trial court accepted Woten’s plea of guilty, ordered a
PSI, and set sentencing for January 25, 2012. (Dec. 12, 2011 Tr. at 12-13).
{¶4} On January 25, 2012, the trial court held a sentencing hearing. The
State remained silent as the parties agreed. (Jan. 25, 2012 Tr. at 2). The trial court
sentenced Woten to three years of community control, to commence upon her
release from the term of imprisonment imposed in Van Wert County,2 and referred
Woten to the WORTH center. (Id. at 15); (Doc. No. 13). The trial court also
notified Woten that it would impose a one-year term of imprisonment if she
violated her community control. (Jan. 25, 2012 Tr. at 15-16). Woten was given
84 days credit for time served. (Id. at 16); (Doc. No. 13).
{¶5} On April 18, 2012, the State filed a motion to revoke Woten’s
community control, alleging that, on February 22, 2012, she failed to report to the
Adult Parole Authority as ordered and, on or about February 20, 2012, changed
her residence without informing her supervising officer and her whereabouts had
been unknown since that date. (Doc. No. 17).3
{¶6} On May 2, 2012, the trial court held a hearing on the motion, and
Woten admitted to the violations. (May 2, 2012 Tr. at 1-3). The trial court
2
During the hearing, Woten indicated that Van Wert County imposed a one-year term of imprisonment, but
the trial court judge indicated that he would grant her judicial release after she served 90 days. (Jan. 25,
2012 Tr. at 13).
3
For a violation of community control to occur, Woten must have been released from her term of
imprisonment out of Van Wert County as she had represented at the Jan. 25, 2012 hearing in Allen County.
It appears from the record that the Van Wert County trial court placed Woten on three years of community
control after granting her judicial release. See R.C. 2929.20(K); (May 2, 2012 Tr. at 4, 11, 14).
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accepted Woten’s admissions, found her in violation of her community control,
and ordered that her community control be continued concurrent with the
community control in Van Wert County. (May 2, 2012 Tr. at 2-3, 11-12).4
During the hearing, the State indicated that Woten had a warrant on a felony case
out of Adams County, Indiana, which disqualified her from the WORTH program
and, therefore, she could not successfully complete the conditions of her
community control. (Id. at 4-6). To address this issue, the trial court ordered that
Woten be returned to Van Wert County and ordered that the Adams County,
Indiana authorities be notified to pick up Woten to dispose of their case. (May 3,
2012 JE, Doc. No. 25). The trial court further ordered that Woten’s community
control would commence upon her release from any term of imprisonment
imposed by Adams County, Indiana or concurrent with any community control
imposed there. (Id.). Finally, the trial court ordered that Woten’s local jail time
credit cease as of May 2, 2012 until her Adams County, Indiana case was
resolved. (Id.).
{¶7} On August 23, 2012, the State filed a second motion to revoke
Woten’s community control for her failure to enter and complete the WORTH
program. (Doc. No. 33).
4
See Fn. 3, supra.
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{¶8} On August 27, 2012, the trial court held a hearing on the motion.
Woten admitted that she had failed to enter and complete the WORTH program,
but the trial court noted that she was ineligible to enter the program due to her
still-pending case in Adams County, Indiana. (Aug. 27, 2012 Tr. at 1-2). The
State recommended that, in light of the fact that Woten was unable to fulfill the
conditions of her community control and Van Wert County had since re-imposed
its prison sentence for this same reason, the trial court impose a prison term. (Id.
at 3). After it became clear that Woten’s Adams County, Indiana case was still
pending, the trial court revoked its previous order of community control and
imposed a one-year term of imprisonment to be served consecutive to the term of
imprisonment imposed in Van Wert County, Ohio, with credit for 132 days. (Id.
at 9-10); (Doc. No. 37).
{¶9} On September 24, 2012, Woten filed a notice of appeal. (Doc. No.
43). Woten now appeals raising two assignments of error for our review.
Assignment of Error No. I
The trial court erred by not giving the Defendant-Appellant full
credit for the jail time she had served under the trial court’s
order in another jurisdiction.
{¶10} In her first assignment of error, Woten argues that the trial court
erred by failing to give her jail time credit from May 10, 2012 to August 27, 2012
(109 days) for time she was concurrently held by Van Wert and Allen Counties.
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Case No. 1-12-40
Woten argues that after she posted bond on her Indiana case on May 11, 2012, she
petitioned the Van Wert County Court of Common Pleas for work release.
According to Woten, the Van Wert County trial court originally granted the
motion, but then denied the motion finding that she was being held by Allen
County as well. She further argues that Allen County subsequently denied the
work release motion she had filed in that court thereafter. Woten argues that, if
Allen County could deny her work release it was obviously holding her
concurrently with Van Wert from May 10, 2012 forward, and she should be given
credit for this time in Allen County.
{¶11} R.C. 2967.191 governs a defendant’s right to jail-time credit, and, in
pertinent part, provides:
The department of rehabilitation and correction shall reduce the
stated prison term of a prisoner * * * 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 * * *.
{¶12} While the Adult Parole Authority has the duty to grant jail time
credit, the trial court has the duty to properly calculate the number of days to be
credited. State v. Pitts, 3d Dist. No. 1-06-106, 2007-Ohio-5197, ¶ 15, quoting
State v. Eaton, 3d Dist. No. 14-04-53, 2005-Ohio-3238, ¶ 9. See also State v.
Dailey, 3d Dist. No. 8-10-01, 2010-Ohio-4816, ¶ 24. However, a defendant is
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Case No. 1-12-40
only entitled to jail-time credit for confinement that is related to the offense for
which he is being sentenced. Dailey at ¶ 25, citing State v. Daughenbaugh, 3d
Dist. No. 16-09-05, 2009-Ohio-3823, ¶ 18.
{¶13} Woten’s arguments rely upon documents attached to her brief
purportedly from the Van Wert County Court of Common Pleas; however, these
documents are not part of the record for appeal purposes, and we cannot consider
them. See App.R. 9(A); State v. Tekulve, 188 Ohio App.3d 792, 2010-Ohio-3604,
¶ 4 (1st Dist.).
{¶14} The trial court’s May 2, 2012 judgment entry continued Woten’s
community control for three years concurrent with the community control in Van
Wert County. (Doc. No. 25). The entry further indicated that Woten was to be
delivered back to Van Wert County; that Adams County, Indiana was to be
notified to pick up Woten to dispose of her case there; and, Woten’s community
control would commence after any sentence imposed in Indiana or concurrent with
any community control imposed in Indiana. (Id.).
{¶15} Woten alleges in her brief that, after the May 2, 2012 community
control violation hearing in Allen County, she was arraigned in Adams County,
Indiana and subsequently returned to the Van Wert County jail on May 10, 2012
where she served concurrent jail time. The record on appeal is unclear what
occurred after the May 2, 2012 hearing concerning the Adams County, Indiana
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case or the Van Wert County case. The record only speaks to what occurred in
Allen County. It is not clear how many days Woten was held in Adams County,
Indiana following the May 2, 2012 hearing.
{¶16} An appellant bears the burden of showing error by reference to
matters in the record. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197 (1980).
When the record on appeal fails to demonstrate appellant’s assigned errors, we
must presume the regularity and validity of the lower court’s proceedings, and
affirm. Id. Woten failed to raise the issue of jail-time credit during the sentencing
hearing below, and, as a result, the record was never fully developed on that issue.
Therefore, we must presume the regularity and validity of the trial court’s jail-time
credit calculation, and affirm. Knapp; State v. Woodward, 2nd Dist. No. 24483,
2012-Ohio-632.
{¶17} Woten’s first assignment of error is, therefore, overruled.
Assignment of Error No. II
The trial court erred as a matter of law by sentencing
Defendant-Appellant to a sentence consecutive to the sentence
she received in Van Wert County when initially running the
sentences concurrent and where no further fault of the
Defendant had been committed.
{¶18} In her second assignment of error, Woten argues that the trial court
abused its discretion by imposing its sentence consecutive to the sentence imposed
in Van Wert County.
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{¶19} A trial court’s sentence will not be disturbed on appeal absent a
defendant’s showing by clear and convincing evidence that the sentence is
unsupported by the record; the sentencing statutes’ procedure was not followed or
there was not a sufficient basis for the imposition of a prison term; or that the
sentence is contrary to law. State v. Ramos, 3d Dist. No. 4-06-24, 2007-Ohio-767,
¶ 23 (the clear and convincing evidence standard of review set forth under R.C.
2953.08(G)(2) remains viable with respect to those cases appealed under the
applicable provisions of R.C. 2953.08(A), (B), and (C) * * *); State v. Rhodes,
12th Dist. No. CA2005-10-426, 2006-Ohio-2401, ¶ 4; State v. Tyson, 3d Dist. Nos.
1-04-38; 1-04-39, 2005-Ohio-1082, ¶ 19, citing R.C. 2953.08(G).
{¶20} Clear and convincing evidence is that “which will produce in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus; State v. Boshko, 139 Ohio App.3d 827, 835 (12th Dist.2000). An
appellate court should not, however, substitute its judgment for that of the trial
court because the trial court is ‘“clearly in the better position to judge the
defendant’s dangerousness and to ascertain the effect of the crimes on the
victims.”’ State v. Watkins, 3d Dist. No. 2-04-08, 2004-Ohio-4809, ¶ 16, quoting
State v. Jones, 93 Ohio St.3d 391, 400 (2001).
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{¶21} Woten argues that the trial court abused its discretion by imposing its
one-year term of imprisonment consecutive to that imposed by Van Wert County
since it had previously imposed community control concurrent with Van Wert
County. We disagree. The trial court imposed community control consecutive
with Van Wert County for the purpose of allowing Woten to dispose of the Adams
County, Indiana case, which she failed to do. The trial court’s decision to run the
community control concurrent was after the first violation of community control;
whereas, the subsequent decision to run the sentences consecutive was after a
second violation of community control. Woten’s conviction in Allen County also
stemmed from a separate incident involving a different victim than her Van Wert
County conviction. Beyond that, by the time of the Allen County sentencing
hearing, Woten only had 64 days left on the Van Wert County sentence, and
Woten was given 132 days credit toward her Allen County sentence, leaving her
with a combined total of 297 more days to serve. (See Aug. 27, 2012 Tr. at 9).
According to the PSI, Woten also had a previous 2006 conviction for burglary, a
third degree felony, for which she was sentenced to two years of probation, which
she subsequently violated for testing positive for drugs. (PSI). Based upon our
review of the entire record, we cannot conclude that the trial court abused its
discretion by ordering that Woten’s one-year term of imprisonment be served
consecutive to that imposed by Van Wert County.
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{¶22} Woten’s second assignment of error is, therefore, overruled.
{¶23} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and SHAW, J.J., concur.
/jlr
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