State v. Jones , 2013 Ohio 4802 ( 2013 )

[Cite as State v. Jones, 2013-Ohio-4802.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99648
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ELBERT JONES
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART,
REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-535173
BEFORE: S. Gallagher, P.J., Rocco, J., and Kilbane, J.
RELEASED AND JOURNALIZED: October 31, 2013
ATTORNEY FOR APPELLANT
Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, OH 44113-2098
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Kerry A. Sowul
Assistant Prosecuting Attorney
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, P.J.:
{¶1} Defendant Elbert Jones appeals his conviction for aggravated burglary and
having a weapon while under disability, entered upon his guilty plea. For the following
reasons, we affirm in part and reverse in part the decision of the trial court and remand for
the limited purpose of journalizing Jones’s jail-time credit.
{¶2} Jones pleaded guilty to aggravated burglary and having a weapon while under
disability with an agreed, aggregate prison sentence of three years. Both crimes were
felonies of the second degree and subject to a mandatory term of postrelease control of
three years. At Jones’s sentencing hearing, the trial court incorrectly stated on the record
that Jones was subject to a mandatory five-year term of postrelease control. The court’s
sentencing entry, however, properly imposed the mandatory three-year postrelease control
term. Further, despite the fact that the trial court’s sentencing entry imposed fines and
court costs, the trial court granted Jones’s subsequent motion to waive such in light of his
inability to pay. Finally, at the sentencing hearing, the trial court noted that it would
grant Jones jail-time credit, but omitted the calculation from the final sentencing entry.
Jones’s unopposed motion for jail-time credit, filed after the court journalized its
sentencing entry but prior to this appeal, was never ruled upon.
{¶3} Jones timely appealed the trial court’s entry of conviction, raising three
assignments of error. In his first and third assignments of error, Jones argues that the
trial court erred by imposing postrelease control for a period of five years, rather than
three years for a second-degree felony, and by imposing fines and court costs. Both
those assigned errors are moot. According to our review of the docket, the trial court
granted Jones’s motion to waive the costs and fines, filed after entry of conviction was
journalized but prior to this appeal, and actually imposed postrelease control for a period
of three years, as Jones claims is appropriate.1 Accordingly, his first and third assigned
errors are overruled as moot.
{¶4} In Jones’s second assignment of error, he argues the trial court erred
by failing to include the calculation of his jail-time credit. According to
the record on appeal, Jones claimed to have 1,072 days of jail-time credit to
be applied to his three-year sentence. The state concedes this error,
agreeing that [t]he trial court is responsible for properly calculating
the number of days for which jail-time credit should be given. The trial
court’s failure to properly calculate a felony offender’s jail-time credit
pursuant to R.C. 2967.191 and to include the amount of jail-time credit in
the body of the offender’s sentencing judgment is plain error.
State v. Collier, 184 Ohio App.3d 247, 2009-Ohio-4652, 920 N.E.2d 416, ¶ 18 (10th
Dist.). The trial court erred by not including the amount of jail-time credit in the
sentencing entry. Id.; R.C. 2929.19(B)(2)(g)(i). Accordingly, we sustain Jones’s second
assignment of error and remand the case for the limited purpose of journalizing Jones’s
jail-time credit.
{¶5} The decision of the trial court is affirmed in part and reversed in part, and this
cause is remanded for the limited purpose of journalizing Jones’s jail-time credit.
We acknowledge the fact that the trial court’s oral pronouncement of the term of postrelease
1
control differed from the journalized sentencing entry and that the state concedes that the five-year
term would be error in this particular case. Regardless, because the court’s journal entry correctly
imposed the appropriate term of postrelease control, any error in the oral pronouncement is harmless.
State v. Deal, 8th Dist. Cuyahoga No. 88669, 2007-Ohio-5943, ¶ 62.
It is ordered that appellant and appellee share 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 common
pleas court 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.
SEAN C. GALLAGHER, PRESIDING JUDGE
KENNETH A. ROCCO, J., and
MARY EILEEN KILBANE, J., CONCUR