State v. Olds

[Cite as State v. Olds, 2023-Ohio-1078.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. Nos. 21CA011786
21CA011790
Appellee
v.
APPEAL FROM JUDGMENT
CARL OLDS ENTERED IN THE
COURT OF COMMON PLEAS
Appellant COUNTY OF LORAIN, OHIO
CASE Nos. 18CR098088
20CR102881
DECISION AND JOURNAL ENTRY
Dated: March 31, 2023
SUTTON, Judge.
{¶1} Defendant-Appellant, Carl Olds, appeals the judgments of the Lorain County Court
of Common Pleas. For the reasons that follow, this Court affirms.
I.
Relevant Background Information
{¶2} This appeal arises from a series of cases in which Mr. Olds entered pleas of guilty.
Specifically, Mr. Olds pleaded guilty to domestic violence, violating a protection order, and assault
in Case No. 18CR098089; having weapons under disability, carrying a concealed weapon,
improperly handling a firearm in a motor vehicle, and driving under suspension in Case No.
19CR1000079; and felonious assault and domestic violence in Case No. 18CR098088. On
November 12, 2019, the trial court sentenced Mr. Olds to community control in all three cases.
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{¶3} While on community control, Mr. Olds committed the following offenses: burglary
with a repeat violent offender specification, theft, and menacing in Case No. 20CR102881. After
being arrested on these charges, the trial court ordered Mr. Olds be held at the county jail, on Case
Nos. 18CR098089, 19CR1000079, and 18CR098088, until further order of the court. On August
20, 2020, Mr. Olds was sentenced to concurrent prison terms of 36 months in Case Nos.
18CR098089 and 19CR1000079. Further, due to his incarceration, the trial court tolled Mr. Olds’
community control in Case No. 18CR098088. Mr. Olds then committed the additional crimes of
telecommunications fraud and theft in Case No. 21CR104622 and violating a protection order and
bribery in Case No. 20CR104623, during his time in the county jail. On May 11, 2021, Mr. Olds
was transferred into the custody of the Department of Rehabilitation and Correction.
{¶4} On July 21, 2021, in Case No. 20CR102881, the trial court found Mr. Olds to be a
repeat violent offender and sentenced him to 4-6 years imprisonment, to be served concurrently
with his other sentences, and awarded him 28 days of jail time credit. Moreover, on August 4,
2021, Mr. Olds admitted to probable cause and the trial court found he violated community control
in Case No. 18CR098088. As such, the trial court revoked community control, which had been
previously tolled, and sentenced Mr. Olds to 4 years imprisonment to run concurrently with Case
Nos. 18CR098089, 19CR1000079, 20CR102881, 20CR104623, and 21CR104622. The trial court
also awarded Mr. Olds 42 days of jail time credit.
{¶5} Mr. Olds now appeals from the judgment entries in Case Nos. 18CR098088 and
20CR102881, which were consolidated for purposes of oral argument and decision, raising three
assignments of error for our review.
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II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY TOLLING MR. [OLDS’] COMMUNITY
CONTROL IN CASE NUMBER 18CR098088 WHILE SENTENCING HIM
TO PRISON IN CASE NUMBERS 19CR100079 AND 18CR098089.
{¶6} In his first assignment of error, Mr. Olds argues the trial court erred in tolling his
community control in Case No. 18CR098088 while sentencing him to prison in Case Nos.
19CR100079 and 18CR098089. We disagree.
{¶7} R.C. 2951.07 plainly states:
A community control sanction continues for the period that the judge or magistrate
determines and, subject to the five-year limit specified in section 2929.15 or
2929.25 of the Revised Code, may be extended. If the offender under community
control absconds or otherwise leaves the jurisdiction of the court without
permission from the probation officer, the probation agency, or the court to do so,
or if the offender is confined in any institution for the commission of any offense,
the period of community control ceases to run until the time that the offender is
brought before the court for its further action.
(Emphasis added.) Further, R.C. 2929.15(A)(1) states, in relevant part: “if the offender is confined
in any institution for the commission of any offense while under a community control sanction,
the period of the community control sanction ceases to run until the offender is brought before the
court for its further action.”
{¶8} Here, the record reveals the trial court tolled Mr. Olds’ community control in Case
No. 18CR098088 when a prison sentence was imposed in Case Nos. 19CR100079 and
18CR098089. The trial court then, on August 4, 2021, brought Mr. Olds before it for further action
in Case No. 18CR098088. At that time, Mr. Olds admitted to probable cause and the trial court
found he violated community control. Thus, the trial court revoked Mr. Olds’ community control
in Case No. 18CR098088 and sentenced him to 4 years imprisonment to run concurrently with his
other sentences. Additionally, the trial court retained jurisdiction to revoke Mr. Olds’ community
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control because, at the time of the revocation proceeding on August 4, 2021, his three-year period
of community control, which began on November 12, 2019, had not yet expired. See State ex rel.
Hemsley v. Unruh, 128 Ohio St.3d 307, 2011-Ohio-226, ¶ 13. (“[T]he court was authorized to
conduct proceedings on the alleged community-control violations even though they were
conducted after the expiration of the term of community control, provided that the notice of
violations was properly given and the revocation proceedings were commenced before the
expiration.”)
{¶9} Based upon this record, we cannot say the trial court erred in tolling, and later
revoking, Mr. Olds’ community control in Case No. 18CR098088.
{¶10} Accordingly, Mr. Olds’ first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ACTED CONTRARY TO LAW AND DENIED MR.
OLDS DUE PROCESS WHEN IT HELD HIM INCARCERATED FOR 279
DAYS BEYOND HIS ORIGINAL PROBABLE CAUSE/MERITS HEARING
AND THEN SENTENCED HIM TO FOUR YEARS WITH ONLY 42 DAYS
CREDIT FOR TIME SERVED.
{¶11} In his second assignment of error, Mr. Olds argues the trial court erred in Case No.
18CR098088 by improperly denying him jail time credit and tolling his community control, while
he was incarcerated in other cases, prior to his probable cause/merits hearing.
{¶12} R.C. 2967.191 provides as follows:
The department of rehabilitation and correction shall reduce the prison term of a
prisoner, as described in division (B) of this section, 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, confinement for examination to determine the prisoner’s
competence to stand trial or sanity, confinement while awaiting transportation to
the place where the prisoner is to serve the prisoner’s prison term, as determined
by the sentencing court under division (B)(2)(g)(i) of section 2929.19 of the
Revised Code, and confinement in a juvenile facility. The department of
rehabilitation and correction also shall reduce the stated prison term of a prisoner
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or, if the prisoner is serving a term for which there is parole eligibility, the minimum
and maximum term or the parole eligibility date of the prisoner by the total number
of days, if any, that the prisoner previously served in the custody of the department
of rehabilitation and correction arising out of the offense for which the prisoner was
convicted and sentenced.
“Succinctly stated, ‘a defendant is not entitled to jail-time credit for any period of incarceration
which arose from facts which are separate and apart from those on which his current sentence is
based.’” State v. Brooks, 9th Dist. Lorain No. 05CA008786, 2006-Ohio-1485, ¶ 6, quoting State
v. Goehring, 6th Dist. Ottawa No. OT-03-035, 2004-Ohio-5240, ¶ 10.
{¶13} Further, R.C. 2929.19(B)(2)(g)(i) states, in relevant part:
if the sentencing court determines at the sentencing hearing that a prison term is
necessary or required, the court shall do all of the following: * * * notify the
offender of, and include in the sentencing entry the total number of days, including
the sentencing date but excluding conveyance time, that the offender has been
confined for any reason arising out of the offense for which the offender is being
sentenced and by which the department of rehabilitation and correction must reduce
the definite prison term imposed on the offender as the offender’s stated prison
term[.] * * * The court’s calculation shall not include the number of days, if any,
that the offender served in the custody of the department of rehabilitation and
correction arising out of any prior offense for which the prisoner was convicted and
sentenced.
{¶14} The record reveals on August 4, 2021, at the merits hearing regarding revocation
of his community control in Case No. 18CR098088, Mr. Olds, through counsel, admitted to
probable cause and indicated he was “not arguing that there was not a violation of his community
control sanctions.” Further, as to jail time credit, the following dialogue took place between the
trial court and counsel:
THE COURT: [Mr. Olds] was present with counsel in court today via Zoom for a
merits hearing.
[Mr. Olds] was found in violation of community control sanctions. Sentence of
four years in prison is hereby imposed. No credit for time served awarded. * * *
[COUNSEL]: Your Honor.
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THE COURT: Yes?
[COUNSEL]: When I spoke to Judge Rothgery’s Court, they did say that you
would go along with what Judge Rothgery went along with, which was credit for
time served.
THE COURT: And credit for how much?
[COUNSEL]: Well, I don’t have the numbers in front of me, but we would ask for
credit for time served in this case.
THE COURT: Did Judge Rothgery give, like, 20 some days?
[COUNSEL]: Well, * * * that was on his case. But * * * there would be a different
amount, obviously, in every case. So we would just ask for credit for time served.
THE COURT: No. Judge Rothgery gave 28 days for credit for time served.
[COUNSEL]: In his case.
[MR. OLDS]: Because I was already doing time on your case.
THE COURT: Okay. So I’ll give the same 28 days of credit. Because he’s not
doing time. He hasn’t been doing time on this case.
[COUNSEL]: Yes, he has, Your Honor. He was in jail from July of ’20 * * * to
May 10th[.]
THE COURT: Okay. And so the understanding, again, was that Judge Rothgery’s
office was working out something * * * in which [Mr. Olds] was to serve five years.
And I believe the way Judge Rothgery’s office worked that out was that he’d
already served a year on my cases[.] * * *
[COUNSEL]: The reason why Judge Rothgery calculated 28 days, because that’s
all he had served on that particular case.
But on your case he had served more time because he was in jail beginning in July
in your case. And he was then released from this case when he went to prison,
which was on 4-29. Its says on 4-29 on this particular case, 4-29-21 the hold placed
on 7-24-20 is hereby released.
THE COURT: Okay. So you’re saying I should give him five years and then credit
for time served awarded instead of four years?
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[COUNSEL]: No. I’m asking the [c]ourt to do what Judge Rothgery did. Judge
Rothgery agreed to four years with credit for time served. I’m asking this [c]ourt
to give him four years with credit for time served.
THE COURT: But then that only makes it three more years[.]
[COUNSEL]: But he’s still serving the time on Judge Rothgery’s case.
THE COURT: I mean, I don’t know that. * * * I don’t know what the future holds
with respect to Judge Rothgery’s case[.] * * * [T]he sentence that was initially
imposed on this case is eight years.
[COUNSEL]: I understand, Your Honor. But there has been so much unfairness
in all these cases. I mean, all we’re asking for in this case is credit from time served,
which is exactly what Judge Rothgery gave.
***
THE COURT: Then I’m not willing to move forward. The I am not willing to
move forward.
***
[COUNSEL]: Will you at least give him credit for the last two weeks that he has
sat that we have been trying to get in front of this [c]ourt? Because now this is an
extra two weeks that he’s going to have to serve.
THE COURT: I don’t know what you mean by “trying to get in front of the
[c]ourt.” Nobody ever asked me. I mean, we could have don’t in on that day if
somebody had even, even just approached us and said, “Hey, listen, could you do
it on this day?” That’s not my fault.
[COUNSEL]: Well, * * * okay. Let’s just proceed, Your Honor.
THE COURT: I don’t know where that leaves us.
[COUNSEL]: Well, I would like to proceed, Your Honor.
[MR. OLDS]: I would too, please.
THE COURT: So you’re saying that you want me to give the 28 days plus the 14
days, four years * * * minus 28 and 14? So four years, and instead, give 42 days
of credit, which would exactly mirror what the sentence was received on Judge
Rothgery’s case, which is 20CR102881.
[COUNSEL]: Thank you, Your Honor. Thank you, Your Honor.
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***
THE COURT: Sentence of four years in prison is imposed. Forty-two days of
credit for time served is awarded.
Sentences to run concurrent with Lorain County Common Pleas cases
19CR100079, 18CR098089, 21CR104622, 21CR104623, and 20CR102881.
***
(Emphasis added.)
{¶15} As this Court has previously stated, “[t]he invited error doctrine precludes a party
from ‘tak[ing] advantage of an error which he himself invited or induced the trial court to make.’”
State v. Jackson, 9th Dist. Lorain No. 14CA010555, 2015-Ohio-2473, ¶ 63, quoting Lester v.
Leuck, 142 Ohio St. 91 (1943), paragraph one of the syllabus. In this regard, even if the trial court
had erred in its calculation of jail time credit, Mr. Olds’ counsel suggested the actual number of
days, 28 days plus the last two weeks of incarceration, totaling 42 days. Mr. Olds’ counsel also
encouraged the trial court to move forward with the hearing. Thus, based upon this record, we
cannot say the trial court erred in its calculation of jail time credit.
{¶16} Notably, Mr. Olds also argues for the first time on appeal he was deprived due
process because the trial court failed to meet the minimum requirements set forth in Morrissey v.
Brewer, 408 U.S. 471 (1972), during his revocation proceedings. However, the record reveals Mr.
Olds did not object to moving forward with the hearing, but instead pressed the trial court to hold
the merits hearing on August 4, 2021. The trial court stated on the record “we don’t have to do
this today,” to which Mr. Olds’ counsel responded:
No. We can do it today, Your Honor. I just want to make sure that I know exactly
what’s going on and what the merits hearing is for.
And Mr. Olds also is waiting to be shipped out to his institution, and he’s very
anxious to be able to get all of these cases wrapped up and get down the road.
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Mr. Olds then admitted to probable cause and indicated he was not arguing that he did not violate
his community control sanctions.
{¶17} “It is well-settled that this Court will not address arguments for the first time on
appeal.” State v. Williamson, 9th Dist. Summit No. 29935, 2022-Ohio-185, ¶ 31, citing State v.
Lee, 9th Dist. Summit No. 29597, 2020-Ohio-4970, ¶ 15. “This Court acts as a reviewing court
and will not usurp the role of the trial court by deciding new issues at the appellate level.” Id.,citing Allen v. Bennett, 9th Dist. Summit Nos. 23570, 23573, 23576, 2007-Ohio-5411, ¶ 21. Thus,
because Mr. Olds failed to raise this argument below, this Court will not now address it. Moreover,
even if we were to address this argument, it has no merit because Mr. Olds, through counsel,
actively urged the trial court to move forward with the hearing on that particular date, which, again,
constitutes invited error. See Jackson at ¶ 63.
{¶18} Accordingly, Mr. Olds’ second assignment of error is overruled.
ASSIGNMENT OF ERROR III
MR. OLDS WAS PREJUDICED AND DENIED DUE PROCESS WHEN
THE TRIAL COURT FAILED TO PROPERLY CREDIT HIM WITH 363
DAYS TIME SERVED WHILE HE WAS SIMULTANEOUSLY SERVING
TIME FOR A COMMUNITY CONTROL VIOLATION ARISING OUT OF
THIS OFFENSE.
{¶19} In his third assignment of error, Mr. Olds argues the trial court erred in failing to
credit him with the proper amount of jail time credit in Case No. 20CR102881. Specifically, Mr.
Olds argues Case No. 20CR102881 provided the basis for his community control violation in Case
No. 18CR098088, and, therefore, he is eligible for jail time credit in this case. The record,
however, does not support this argument.
{¶20} At the August 4, 2021 merit hearing in Case No. 18CR098088, the probation officer
read the reasons for the motion to revoke Mr. Olds’ community control into the record as follows:
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***
[Mr. Olds] has failed to comply with rule number one which states: I will obey all
federal, state and local laws and ordinances and rules and regulations of Lorain
County Common Pleas Court.
While [Mr. Olds’] time was tolled on [Case No.] 18CR098088, [Mr. Olds] was
charged and convicted of new felony charges on the following dockets:
20CR102881, 21CR104622, and 21CR104623.
In addition to that, we had had two motions filed by [Mr. Olds] * * * to lift the
protection order [in favor of the victim] in our case.
Those motions were denied[.] * * *
And although the motion[s] [were] denied, [Mr. Olds] still continued to have
contact with the victim through jail phone calls on several occasions.
***
Clearly, the motion to revoke provided several reasons Mr. Olds violated his community control
in Case No. 18CR098088, including felony convictions on two other cases and repeated violations
of a protection order. Therefore, the record does not support Mr. Olds’ contention that Case No.
20CR102881 provided the basis for his community control violation in Case No. 18CR098088,
entitling him to additional jail time credit. Based upon this record, we cannot say the trial erred in
its calculation of jail time credit in Case No. 20CR102881.
{¶21} Accordingly, Mr. Olds’ third assignment of error is overruled.
III.
{¶22} Mr. Olds’ assignments of error are overruled and the judgments of the Lorain
County Court of Common Pleas are affirmed.
Judgments affirmed.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETTY SUTTON
FOR THE COURT
HENSAL, P. J.
CONCURS.
CARR, J.
CONCURRING IN JUDGMENT ONLY.
{¶23} I concur in the majority’s judgment but I write separately in regard to the second
assignment of error. The doctrine of invited error precludes a party from taking advantage of an
error that he himself invited or induced the trial court to commit. State v. Bey, 85 Ohio St.3d 487,
493 (1999). The trial court initially stated that it was inclined to award 28 days of jail time credit
in Case No. 18CR098088. Olds then asked the trial court to award jail time credit for the time he
was incarcerated from July 2020 to April 2021. When the trial court made clear that it was
unwilling to take that step, defense counsel then argued in the alternative that the trial court should
12
“at least” award 14 additional days of jail time credit, for a total of 42 days. The fact that defense
counsel made an alternate argument in this manner is not akin to abandoning his primary argument
for the purposes of appeal. Accordingly, while I do not think that Olds’ jail time credit argument
has merit, I would not refuse to consider it based on the doctrine of invited error.
APPEARANCES:
DENISE G. WILMS, Attorney at Law, for Appellant.
DAVE YOST, Attorney General, and ANDREA K. BOYD, Special Prosecuting Attorney, for
Appellee.