State v. Redmond

[Cite as State v. Redmond, 2015-Ohio-3830.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, ) CASE NO. 14 BE 58
)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
TROY REDMOND, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Belmont County, Ohio
Case No. 14CR184
JUDGMENT: Remanded.
APPEARANCES:
For Plaintiff-Appellee: Atty. J. Kevin Flanagan
Assistant Prosecuting Attorney
147-A West Main St.
St. Clairsville, Ohio 43950
For Defendant-Appellant: Atty. Brent A. Clyburn
The Law Office Of Brent A. Clyburn
3521 Fairmont Pike Road Suite B
Wheeling, West Virginia 26003
JUDGES:
Hon. Carol Ann Robb
Hon. Cheryl L. Waite
Hon. Mary DeGenaro Dated: September 18, 2015
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ROBB, J.
{¶1} Defendant-Appellant Troy Redmond appeals the decision of the
Belmont County Common Pleas Court giving him credit for 93 days served. The
issue in this case is whether the trial court should have credited him for 29 more
days.
{¶2} For the reasons expressed below, the record before this court does not
contain enough information to determine whether the trial court should have credited
him for 29 more days. Currently pending before the trial court is a motion for jail time
credit. The trial court has not ruled on it because this appeal divested it of
jurisdiction. We remand and instruct the trial court to rule on the motion. Appellant
may be entitled to more jail time credit if the charges upon which he was ultimately
convicted and sentenced were first brought in county court and he was held in jail
pending the resolution of those charges.
Statement of the Case
{¶3} On August 6, 2014, the Belmont County Grand Jury indicted Appellant.
The indictment contained four counts. The first count was for trafficking crack
cocaine in violation of R.C. 2925.03(A)(1)(C)(4)(a), a fifth-degree felony. The second
count was for trafficking crack cocaine in violation of R.C. 2925.03(A)(1)(C)(4)(a)(b),
a fourth degree felony. This count contained a specification that the alleged offense
occurred within the vicinity of a school. The third count was for possession of
methadone in violation of R.C. 2925.11(A)(C)(1)(a), a fifth-degree felony. The fourth
count was for possession of crack cocaine in violation of R.C. 2925.11(A)(C)(4)(a), a
fifth-degree felony. All four drug offenses were alleged to have occurred on May 17,
2014. This case was assigned case number 14CR184.
{¶4} Appellant was arrested and released on a recognizance bond on
August 14, 2014. 8/21/14 J.E. The state moved to revoke Appellant’s bond because
on August 21, 2014, Appellant was charged in the Belmont County Court with three
more counts of fifth-degree felony drug trafficking that allegedly occurred on the date
he was released on bond. 8/26/14 Motion. That case was assigned number
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14CRA684. The motion to revoke bond in case number 14CR184 was granted.
9/5/14 J.E.
{¶5} The three charges in case number 14CRA684, however, were
dismissed by the County Court Judge on September 17, 2014. Thereafter, Appellant
moved to have his bond reinstated in case number 14CR184. 9/22/14 Motion. The
motion was withdrawn on October 17, 2014.
{¶6} The state filed a motion to consolidate case number 14CR184 with
case number 14CR230. 10/30/14 Motion. Case number 14CR230 resulted from an
October 1, 2014 indictment which charged Appellant with three counts of drug
trafficking. 10/30/14 Motion. The trial court granted the motion to consolidate.
10/30/14 J.E.
{¶7} In early November 2014, the state and Appellant reached a plea
agreement in case number 14CR184. Appellant plead guilty to fifth-degree felony
drug trafficking, the first count of the August 6, 2014 indictment. The state agreed to
dismiss counts 2, 3, and 4. The state and Appellant agreed that they would jointly
recommend Appellant receive a 12-month sentence for the fifth-degree felony drug
trafficking offense and that sentence would run consecutive to the sentence imposed
in case number 14CR230. 11/14/14 Plea of Guilty. The trial court accepted the
guilty plea.
{¶8} Sentencing occurred on November 24, 2014. The trial court followed
the agreed sentencing recommendation and sentenced Appellant to 12 months for
the drug trafficking offense. The trial court ordered that sentence to be served
consecutive to any sentence imposed in case number 14CR230. At sentencing,
Appellant asked that he be given jail time credit for the time he served. 11/24/14 Tr.
2. The trial court then credited him for 93 days. 11/24/14 J.E.
{¶9} Appellant has filed a timely appeal arguing that the amount of jail time
credit is incorrect. The state has not filed an appellate brief.
Assignment of Error
“The trial court failed to grant the defendant-appellant credit for all days served
in jail prior to sentencing.”
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{¶10} As stated above, the trial court gave Appellant credit for 93 days.
Appellant argues that he actually served 122 days prior to being sentenced. He
asserts that the trial court failed to credit him for 29 days.
{¶11} R.C. 2967.191 requires the Ohio Department of Rehabilitation and
Correction to “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, including confinement in lieu of bail while
awaiting trial * * *.” Although the Ohio Department of Rehabilitation and Correction
must credit a prisoner with his pretrial confinement, it is the trial court's responsibility
to calculate the number of days the defendant served prior to being sentenced. State
ex rel. Rankin v. Ohio Adult Parole Auth., 98 Ohio St. 3d 476, 2003-Ohio-2061, 786
N.E.2d 1286, ¶ 7. “[A] defendant may challenge mathematical errors in calculating
jail-time credit by filing a motion for correction with the trial court, and then by
appealing the resulting judgment.” State v. Mason, 7th Dist. No. 10 CO 20, 2011–
Ohio–3167, ¶ 13. The proper vehicle, however, “for challenging legal errors in the
imposition of jail-time credit is via a direct appeal from the sentencing entry.” State v.
Mason, 7th Dist. No. 10 CO 20, 2011–Ohio–3167, ¶ 13.
{¶12} Appellant was credited for 93 days. On the day of his arrest, August
14, 2014, Appellant was released on his own recognizance. On August 21, 2014,
Appellant was arrested for committing three more trafficking offenses. His bond in
14CR184 was officially revoked on September 2, 2014. He was sentenced on
November 24, 2014. Appellant contends that the 93 days of credit is for his time in
jail from August 21, 2014 until sentencing on November 24, 2014. The number of
days he was in jail from August 21, 2014 until November 24, 2014 does equal 93
days.
{¶13} Appellant argues he is entitled to an additional credit of 29 days that
allegedly occurred from May 19, 2014 to June 16, 2014. As can be seen, the alleged
time in jail occurred prior to the August 6, 2014 indictment and prior to the August 14,
2014 arrest in case number 14CR184. Appellant claims that this time in jail was from
case number 14CRA399, which arose from a complaint out of the Northern Division
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County Court of Belmont County. According to him, that complaint served as the
basis for the indictment in case number 14CR184.
{¶14} Case number 14CRA399 is not a part of the record for case number
14CR184. Therefore, this court cannot determine if he was in jail for 29 days and if
that time in jail is related to 14CR184. The statute on jail time credit specifically
indicates that the Ohio Department of Rehabilitation and Correction is required to
“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 * * *.” R.C. 2967.191 (Emphasis added).
{¶15} Given the language of R.C. 2967.191, if the offenses in 14CRA399 are
the same offenses in 14CR184 and Appellant was confined for 29 days in
14CRA399, then a very good argument could be made that he is entitled to credit for
those 29 days in 14CR184. That conclusion is indirectly supported by a case from
our sister district. The Eighth Appellate District has looked at the above quoted
language in reference to the juvenile jail time credit statute, R.C. 2151.18. In re D.S.,
2015-Ohio-518, 29 N.E.3d 236, ¶ 7 (8th Dist.). Although that case dealt specifically
with a juvenile’s request for confinement credit, the Eighth District’s analysis indicates
that R.C. 2967.191 is broad and permits credit for confinement for any reason arising
out of the offense for which the offender is convicted and sentenced:
Our interpretation of R.C. 2152.18(B) is supported by the maxim of
statutory construction stating that the expression of one thing is the
exclusion of the other. R.C. 2967.191, dealing with the reduction of a
prison term for related days of confinement for adult offenders, instructs
the department of rehabilitation and correction to reduce a state prison
term “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 * * *.” (Emphasis added.) The difference between the
two statutes is manifest: R.C. 2152.18(B) speaks of confinement related
to the “complaint”; R.C. 2967.191 speaks of confinement arising out of
the “offense.” The word “complaint” must be viewed in the context of
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juvenile delinquency proceedings as “the legal document that sets forth
the allegations that form the basis for juvenile court jurisdiction.” Juv.R.
2(F). The use of the word “complaint” in R.C. 2152.18(B) suggests that
confinement credit for juveniles is limited in application to the facts and
circumstances making up the allegations in a complaint.
Id.
{¶16} As stated above, the record in this case does not include 14CRA399.
Therefore, we cannot determine if 14CRA399 is connected with the current case, if
Appellant spent time in jail on 14CRA399, and if so, how many days he served. The
trial court is in a better position to determine these issues. Currently pending before
the trial court is a motion for jail time credit, which makes the same exact arguments
that are presented in this appeal. 2/13/15 Motion. The trial court has appropriately
refused to rule on it because this appeal divested it of jurisdiction. 2/17/15 J.E.
Consequently, based on the above law and reasoning, and because there may be
some merit with Appellant’s argument, we remand the matter to the trial court to rule
on the jail time credit motion.
Waite, J., concurs.
DeGenaro, J., concurs.