State v. Haley , 2013 Ohio 4531 ( 2013 )

[Cite as State v. Haley, 2013-Ohio-4531.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
CASE NO. CA2012-10-212
Plaintiff-Appellee, :
OPINION
: 10/14/2013
- vs -
:
STEVEN J. HALEY, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2007-06-1023
Michael T. Gmoser, Butler County Prosecuting Attorney, Kimberly L. McManus, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Charles M. Conliff, 5145 Pleasant Avenue, Suite 18, P.O. Box 18424, Fairfield, Ohio 45018-
0424, for defendant-appellant
S. POWELL, J.
{¶ 1} Defendant-appellant, Steven J. Haley, appeals from the Butler County Court of
Common Pleas decision sentencing him to serve 12 months in prison for violating his
community control obligations. For the reasons outlined below, we affirm.
{¶ 2} On September 26, 2007, the Butler County grand jury returned an indictment
charging Haley with one count of receiving stolen property and one count of forgery, both
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fifth-degree felonies. After entering into a plea agreement, Haley pled guilty to forgery and
the receiving stolen property charge was merged. Following his guilty plea, the trial court
then sentenced Haley to serve a two-year period of community control. The two-year
community control sentence was to be served consecutive to his three-year prison term
resulting from an unrelated burglary conviction. Haley did not appeal from his conviction or
sentence.
{¶ 3} On November 8, 2010, the trial court was notified that Haley had allegedly
violated his community control obligations by engaging in a physical altercation with another
resident at the Community Correctional Center. After holding a hearing on the matter, the
trial court found Haley in violation of his community control obligations and sentenced him to
serve a three-year period of community control.
{¶ 4} On April 12, 2012, the trial court was once again notified that Haley had
allegedly violated his community control obligations after being indicted on charges of child
endangering and felony murder resulting from the death of James Smith, his fiancé's infant
son. Haley was subsequently found guilty of the murder and sentenced to serve an indefinite
term of 15 years to life in prison. This court recently affirmed Haley's felony murder
conviction and resulting sentence in State v. Haley, 12th Dist. Butler No. CA2012-10-211,
2013-Ohio-4123.
{¶ 5} On October 25, 2012, the trial court found Haley had again violated the terms of
his community control obligations as a result of his felony murder conviction. The trial court
then sentenced Haley to the maximum 12 months in prison to be served consecutive to his
indefinite term of 15 years to life resulting from his felony murder conviction. The trial court
also determined Haley was entitled to 172 days of jail time credit. Haley now appeals from
the trial court's decision, raising a single assignment of error for review.
{¶ 6} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY
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SENTENCING HIM TO PRISON.
{¶ 7} A trial court's decision revoking community control may only be reversed if the
trial court abused its discretion. State v. Hughes, 12th Dist. Warren No. CA2002-11-124,
2003-Ohio-3449, ¶ 7. Whether an offender can remain on community control depends on
compliance with the community control conditions and is a decision that rests "within the
sound discretion of the court." State v. Wolpert, 12th Dist. Butler No. CA2006-10-244, 2007-
Ohio-4734, ¶ 10. Haley does not appeal from the trial court's decision revoking his
community control. Instead, Haley argues the trial court erred by sentencing him to serve 12
months in prison after revoking his community control. Haley also argues the trial court erred
by finding he was only entitled to 172 days of jail time credit. Finding no merit to either of
Haley's claims, we affirm the trial court's decision.
{¶ 8} As we recently stated in State v. Crawford, 12th Dist. Clermont No. CA2012-12-
088, 2013-Ohio-3315, "the standard of review set forth in R.C. 2953.08(G)(2) shall govern all
felony sentences." Id. at ¶ 6, quoting State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-
Ohio-2525, ¶ 7; see also State v. Cochran, 10th Dist. Franklin No. 11AP-408, 2012-Ohio-
5899, ¶ 52. Pursuant to R.C. 2953.08(G)(2), when hearing an appeal of a trial court's felony
sentencing decision, such as the case here, "[t]he appellate court may increase, reduce, or
otherwise modify a sentence that is appealed under this section or may vacate the sentence
and remand the matter to the sentencing court for resentencing." However, as explicitly
stated in R.C. 2953.08(G)(2), "[t]he appellate court's standard for review is not whether the
sentencing court abused its discretion."
{¶ 9} Rather, the appellate court may take any action authorized under R.C.
2953.08(G)(2) only if the court "clearly and convincingly finds" that either: (1) "the record
does not support the sentencing court's findings under division (B) or (D) of section 2929.13,
division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised
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Code, whichever, if any, is relevant;" or (2) "[t]hat the sentence is otherwise contrary to law."
A sentence is not clearly and convincingly contrary to law where the trial court considers the
purposes and principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12,
properly applies postrelease control, and sentences appellant within the permissible statutory
range. State v. Pearce, 12th Dist. Clermont No. CA2013-01-001, 2013-Ohio-3484, ¶ 25;
State v. Elliott, 12th Dist. Clermont No. CA2009-03-020, 2009-Ohio-5926, ¶ 10.
{¶ 10} In making such a determination, it is "important to understand that the clear and
convincing standard used by R.C. 2953.08(G)(2) is written in the negative." State v. Lee,
12th Dist. Butler No. CA2012-09-182, 2013-Ohio-3404, ¶ 9; State v. Venes, 8th Dist.
Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 21. "It does not say that the trial judge must have
clear and convincing evidence to support its findings." Id. Quite the contrary, "it is the court
of appeals that must clearly and convincingly find that the record does not support the court's
findings." Id. Simply stated, the language in R.C. 2953.08(G)(2) establishes an "extremely
deferential standard of review" for "the restriction is on the appellate court, not the trial
judge." Id.{¶ 11} In this case, Haley argues the trial court lacked "a sufficient factual basis" upon
which to impose a maximum 12-month prison term for violating his community control
obligations. In support of this claim, Haley references the fact that he had only been to
prison once, that his forgery conviction was "hardly the worst form of that offense" as it only
involved "cashing a check for $200," and that his felony murder conviction was a "shaken-
baby case" that was "neither pre-meditated or even intentional." Although not explicit, we
find Haley's arguments are nothing more than a challenge to the trial court's decision as an
abuse of discretion.
{¶ 12} However, and as previously noted, the General Assembly has specifically
stated through the passage of R.C. 2953.08(G)(2) that this court's standard for review "is not
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whether the sentencing court abused its discretion." As a result, we are not entitled to review
the trial court's decision under the more lenient abuse of discretion standard. See, e.g.,
Crawford, 2013-Ohio-3315 at ¶ 17; Pearce, 2013-Ohio-3484 at ¶ 27; see also A.H., 2013-
Ohio-2525 at ¶ 15. Nevertheless, in the interest of justice and fairness, we will review the
trial court's decision in accordance with the applicable standard as provided by R.C.
2953.08(G)(2).
{¶ 13} After a thorough review of the record, we find the trial court's decision to
sentence Haley to the maximum 12-month prison term was supported by the record and
otherwise not contrary to law. As the record clearly indicates, Haley's 12-month sentence
was within the statutory range for a fifth-degree felony. See State v. Warren, 12th Dist.
Clermont No. CA2012-12-087, 2013-Ohio-3483, ¶ 9. Moreover, the trial court explicitly
notified Haley that he would be sentenced to the maximum 12-month prison term if he was
found to have violated his community control obligations. As the trial court stated:
Sir, if you violate the terms and conditions of your community
control you'll be brought back before the Court, the Court could
modify, extend, or terminate your community control. If
terminated, the Court will sentence you to 12 months in the Ohio
Department of Rehabilitation and Corrections.
{¶ 14} The trial court also properly imposed postrelease control and sentenced Haley
only after specifically stating it had considered the circumstances of the case, the principles
and purposes of sentencing under R.C. 2929.11, and had balanced the seriousness and
recidivism factors as found in R.C. 2929.12. The trial court also included this as part of its
sentencing entry. Hayley's 12-month prison sentence, therefore, is not clearly and
convincingly contrary to law. See, e.g., State v. Gatliff, 12th Dist. Clermont No. CA2012-06-
045, 2013-Ohio-2862, ¶ 34; State v. Bishop, 12th Dist. Clermont No. CA2010-08-054, 2011-
Ohio-3429, ¶ 16.
{¶ 15} Haley also argues the trial court erred by ordering his sentence to run
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consecutive to his indefinite prison term of 15 years to life resulting from his felony murder
conviction. Pursuant to R.C. 2929.14(C), in order to impose a consecutive sentence, the trial
court must find: (1) that consecutive sentencing is necessary to protect the public from future
crime or to punish the offender; (2) that consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the offender poses to the public; and
(3) that one of the following apply:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or
2929.18 of the Revised Code, or was under post-release control
for a prior offense.
(b) At least two of the multiple offenses were committed as part
of one or more courses of conduct, and the harm caused by two
or more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
See State v. Smith, 12th Dist. Clermont No. CA2012-01-004, 2012-Ohio-4523, ¶ 21.
{¶ 16} The trial court is not required to give reasons explaining these findings, nor is
the court required to recite any "magic" or "talismanic" words when imposing consecutive
sentences. State v. Hubbard, 10th Dist. Franklin No. 11AP-945, 2013-Ohio-2735, ¶ 86; State
v. Jones, 8th Dist. Cuyahoga No. 99230, 2013-Ohio-3003, ¶ 7. However, it must be clear
from the record that the trial court actually made the required statutory findings. State v.
Williams, 12th Dist. Warren No. CA2012-08-080, 2013-Ohio-3410, ¶ 45.
{¶ 17} In ordering Haley's 12-month prison sentence to run consecutive to his
indefinite 15-year-to-life prison term, the trial court explicitly stated:
The Court will find that consecutive terms are necessary to
adequately protect the public and to punish the Defendant and
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are not disproportionate. Will find that the Defendant committed
crimes while on community control. Further, the Court will find
that the Defendant's criminal history shows that consecutive
terms are needed to protect the public.
The trial court later memorialized these findings within its sentencing entry.
{¶ 18} As can be seen, the record clearly establishes that the trial court properly
complied with the dictates of R.C. 2929.14(C)(4) when imposing consecutive sentences. See
State v. Oren, 12th Dist. Madison No. CA2012-05-010, 2013-Ohio-531, ¶ 22-31; State v.
Dillon, 12th Dist. Madison No. CA2012-06-012, 2013-Ohio-335, ¶ 6-13. The trial court,
therefore, did not err by imposing consecutive sentences in this matter.
{¶ 19} Finally, Haley argues the trial court erred in calculating his jail time credit.
Specifically, Haley argues he was entitled to an additional 204 days of jail time credit "for the
period he was held in jail on both his probation violation and the pending murder
indictment[.]" We disagree.
{¶ 20} "The equal protection clause requires that all time spent in jail prior to trial and
prior to commitment must be credited to the prisoner's sentence." State v. Reeves, 10th Dist.
Franklin No. 09AP-493, 2010-Ohio-4018, ¶ 23, citing State v. Fugate, 117 Ohio St.3d 261,
2008-Ohio-856, ¶ 7. The trial court makes the factual determination as to the number of
days of confinement that a defendant is entitled to have credited toward his sentence. State
v. Rarden, 12th Dist. Butler Nos. CA2008-08-185 to 187 and CA2008-08-189 to 191, 2009-
Ohio-5637, ¶ 10, citing State ex rel. Rankin v. Ohio Adult Parole Auth., 98 Ohio St.3d 476,
2003-Ohio-2061, ¶ 7. To that end, pursuant to R.C. 2967.191, a prison term shall be
reduced "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[.]"
{¶ 21} "Although the principle of crediting time served seems fairly simple on its face,
in practice, it can be complicated when, inter alia, the defendant is charged with multiple
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crimes committed at different times, or when the defendant is incarcerated due to a probation
violation." State v. Chafin, 10th Dist. Franklin No. 06AP-1108, 2007-Ohio-1840, ¶ 9.
However, such as the case here, an offender is not entitled to jail time credit for any period of
incarceration that arose from facts which are separate and apart from those on which his
current sentence is based. State v. DeMarco, 8th Dist. Cuyahoga No. 96605, 2011-Ohio-
5187, ¶ 10; State v. Williams, 126 Ohio App.3d 398, 399 (2d Dist.1998). "This means that
there is no jail-time credit for time served on unrelated offenses, even if that time served runs
concurrently during the pre-detention phase of another matter." State v. Maddox, 8th Dist.
Cuyahoga No. 99120, 2013-Ohio-3140, ¶ 31; see, e.g., State v. Bradford, 149 Ohio App.3d
586, 2002-Ohio-5508, ¶ 7 (12th Dist.) (finding prisoner was not entitled to any additional jail
time credit as he was confined on unrelated charges "and was not being held solely on the
robbery offense for which he was convicted and sentenced").
{¶ 22} Moreover, it is undisputed Haley's 12-month prison sentence was ordered to
run consecutive to his indefinite 15-year-to-life sentence imposed for his felony murder
conviction. As noted by the Ohio Supreme Court in Fugate:
When a defendant is sentenced to consecutive terms, the terms
of imprisonment are served one after another. Jail-time credit
applied to one prison term gives full credit that is due, because
the credit reduces the entire length of the prison sentence.
Id., 2008-Ohio-856 at ¶ 22.
{¶ 23} Due to the consecutive nature of his sentences, Haley was not entitled to an
additional 204 days of jail time credit resulting from his community control violation. Instead,
the additional jail time he served was properly credited to his indefinite 15-year-to-life prison
sentence resulting from his felony murder conviction. In turn, contrary to Haley's claims
otherwise, he was not denied any jail time credit for which he was entitled. The trial court,
therefore, did not err in refusing to provide Haley with an additional 204 days of jail time
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credit. Accordingly, having found no error in the trial court's sentencing decision, Haley's
single assignment of error is overruled.
{¶ 24} Judgment affirmed.
HENDRICKSON, P.J., and RINGLAND, J., concur.
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