State v. CaccamoState v. Caccamo
THOMAS R. WRIGHT, J.
{¶1} Appellant, Jason V. Caccamo, appeals the trial court‘s determination of his jail-time credit, as set forth in the sentencing judgment issued after the revocation of his community control sanctions. He asserts that he is entitled to additional credit because the trial court failed to consider the days he was incarcerated in another cоunty jail on a detainer. For the following reasons, we reverse the trial court‘s calculation.
{¶2} In November 2012, appellant pleaded guilty to seven charges of identity
{¶3} After serving approximately one year of the community control sanctions, appellant was arrested in Cuyahoga County and charged with passing bad checks, a fifth-degree felony. Beginning January 17, 2014, he was held in the Cuyahoga County Jail until March 4, 2014, at which time the Cuyahoga County Court of Common Pleas accepted his guilty plea to the new charge and sentenced him to eight months in prison. At some point after March 4, 2014, appellant was transferred from the Cuyahoga County Jail to the Lorain County Correctional Institution, where he began to serve the eight-month term.
{¶4} On January 22, 2014, the Lake County probation department caused an arrest warrant to be issued аgainst appellant. However, this warrant was not executed until April 22, 2014, following appellant‘s transfer to the state prison. In conjunction with the warrant, the state moved the trial court to terminate the community control sanctions on the basis that appellant had violated the terms of his release. In addition to asserting that appellant had committed a new criminal offense, the motion further alleged that he had changed his residence without informing his probation officer.
{¶5} On March 22, 2014, the trial court set the motion to terminate for hearing
{¶6} At the outset of that hearing, appellant pleaded guilty to violating the terms of his community control sanctions, consistent with the two grounds set fоrth in the state‘s motion. Upon accepting the guilty plea, the trial court granted the motion to terminate, and the case immediately proceeded to sentencing. As part of its oral argument, the state argued that appellant was entitled to 33 days of jail-time credit. According to the state, this amount consisted of 12 days he was held in 2012 prior to pleading guilty to the seven identity fraud charges and 21 days he was held in the county jail between his conveyance from the state prison and the date of the final hearing. Appellant did not object.
{¶7} For appellant‘s sentence, the trial court imposed an aggregate prison term of 26 months on the seven charges, to be served concurrently with the eight-month term in the Cuyahogа County case. The trial court also adopted the state‘s recommendation on appellant‘s jail-time credit, granting 33 days for time served.
{¶8} Almost one year after the sentencing judgment was rendered, appellant moved this court for leave to submit a delayed appeal from that judgment. We granted the motion for leave and allowed the appeal to go forward. He raises one assignment of error for review:
{¶9} “The trial court‘s sentence imposed on appellant for violating community control was erroneous because the trial court incorrectly calculated jail-time credit.”
{¶11} The calculation of jail-time credit is generally governed by
{¶12} In essence, appellant contends his confinement in the Cuyahoga County Jail was based upon the alleged community control violation in Lake County because, even if the Cuyahoga County charge had been dismissed, he still would have remained incarceratеd in light of the detainer. In support, he relies heavily upon the holding of the Ohio Supreme Court in State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856.
{¶13} In Fugate, the defendant was serving community control sanctions when he was indicted on two new felony offenses. After the defendant was arrested on the
{¶14} On appeal, the Fugate defendant argued that, since the sentences in the two cases were to run concurrently, he was entitled to have the 213 days deducted from eaсh sentence. The Ohio Supreme Court agreed. First, the court generally noted that if a criminal defendant is unable to make bail and is held in jail prior to his trial, he would be denied his constitutional right to equal protection if he was not granted credit for the time already served. Id. at ¶7. The court then recognized that this principle is codified in
{¶15} “Thus, in order to satisfy this objective, when concurrent prison terms are imposed, courts do not have the discretion to select only one term from those that are run concurrently agаinst which to apply jail-time credit.
{¶16} As part of its statement of the underlying facts, the Fugate court quoted a segment of the sentencing hearing in which the prosecutor agrеed that the defendant was incarcerated on both the new charges and the community control violation while the new case was pending. Id. at ¶17-18. Accordingly, since the ultimate sentences in the two cases were to be served concurrently, the defendant would not receive the full benefit of the time served unless the credit was subtracted from both sentences.
{¶17} Thе facts of this matter are quite similar to those in Fugate. First, the trial court in the underlying Lake County case ordered that the aggregate sentence on the identity theft charges be served concurrently with the eight-month term in the Cuyahoga County proceeding. Second, as part of a written submission in the Lake County case, the state admitted that a “community control violation” holdеr was placed on appellant on January 22, 2014, only five days after he was incarcerated in the Cuyahoga County Jail on the new “passing bad check” charge.
{¶18} In attempting to distinguish Fugate, some appellate courts have concluded that the Fugate analysis should not be followed when the concurrent prison terms are imposed by different trial courts at different times. See, e.g., State v. Marini, 5th Dist. Tuscarawas No. 09-CA-06, 2009-Ohio-4633, ¶23. However, given that the existence of the holder justifies appellаnt‘s continuing incarceration had the Cuyahoga County charge been dismissed, the foregoing distinction is unpersuasive because it would defeat the underlying principle that a defendant is entitled to credit for all presentencing incarceration based upon the pending charges in the underlying case. Since appellant‘s
{¶19} Finally, the failure to grant appellant this additional credit constitutes plain error.
{¶20} Under the second issue, appellant claims the trial court‘s jail-time credit calculation was also flawed because it did not account for the time between the date the final sentencing judgment was issued, May 12, 2014, and the date he was transferred back to the state prison, May 21, 2014. He appears to contend that the calculation of this post-sentencing period must be set forth in either the sentencing judgment or a separate judgment issued after the defendant has been transferred.
{¶21} As noted above,
{¶22} “(B) The sentencing court determines the amount оf time the offender served before being sentenced. The court must make a factual determination of the
{¶23} “(C) When the sheriff delivers the offender to the department of rehabilitation and correction‘s reception center, he shall present the managing officer with a copy of the offender‘s sentence, stated prison term or combination thereof that specifies the total number of dаys, if any, the offender was confined for any reason prior to conviction and sentence and a record of the days he was confined for the offense between the date of sentencing and the date committed to the reception center.
{¶24} “(D) The number of days, if any, specified in the court‘s journal entry committing the offender to the department is thе court‘s finding of the number of days the offender is entitled to by law, up to and including the date of the journal entry. The bureau of sentence computation shall reduce the offender‘s minimum and maximum, definite sentence or stated prison term by the number of days specified in the entry, plus the number of days the offender was confined as a result of the offense, between the datе of the entry and the date committed to the department, as reflected in the sheriff‘s record.”
{¶25} Obviously, when the trial court issues its final sentencing judgment, it has no way of knowing or determining how many days will elapse before the sheriff will be able to transport the defendant to the state correctional institution. Thus, subsection (D) provides that the trial court‘s duty to calculate the аmount of jail-time credit only extends to the date of the sentencing judgment. Furthermore, subsection (C) places the burden upon the sheriff to keep a record of the number of days between the date of sentencing
{¶26} In order for a trial court to provide a determination regarding the number of days between sentencing and transfer to the state prison, it would be necessary for the court to amend its original sentencing judgment or issue a new judgment solely on that issue.
{¶27} As the trial court was not required to include in its sentencing judgment a determination concerning the amount of appellant‘s post-sentencing jail-time credit, the second issue of his sole assignment is without merit. However, to the extent that the trial court erred in holding that appellant is only entitled to 22 days of presentencing jail-time credit, the assignment has merit. Accordingly, the judgment of the trial court is reversed as to that issue, and the case is remanded for further proceedings consistent with this opinion.
COLLEEN MARY O‘TOOLE, J., concurs,
CYNTHIA WESTCOTT RICE, P.J., dissents with a Dissenting Opinion.
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{¶28} Because I disagree with the disposition of the majority, I respectfully dissent.
{¶29} The majority holds that since appellant‘s confinement in the Cuyahoga County Jail was based in part on a Lake County holder for a community control violation, pursuant to Fugate, supra, he was entitled to three months jail-time credit on the Cuyahoga County case from the date the Lake County holder was issued (1-22-14) until hе was transferred to the Lake County Jail (4-22-14).
{¶30} However, since appellant‘s other sentence was imposed in Cuyahoga County two months before appellant was convicted of his probation violation in Lake County, his Cuyahoga County case was unrelated to his Lake County case and Fugate does not apply. Thus, appellant was not entitled to jail-time crеdit for his Cuyahoga County case, and appellant‘s jail-time credit was limited to his pre-trial detention in Lake County on the identity-theft charge and the holder issued in that county.
{¶31} While on the surface, Fugate appears to support the majority‘s holding, the facts in that case are distinguishable and its holding is inapposite.
{¶32} The Fifth District in Marini, supra, stated that Fugate does not apply when different trial courts impose sentences at sepаrate times since “the sentences at best are only partly concurrent, and there is no requirement that courts arrange their cases in such a way as to maximize concurrency.” Id. at ¶23. The Fifth District further stated:
It is one thing to hold, such as the Supreme Court did in Fugate, [supra,] that jail time credit earned in two cases must be applied to both cases when the sentences are imposed concurrently by the same court. It would be quite another to hold in the present case that confinement while serving non-concurrent jail time must be awarded as “jail time” to reduce a later-imposed felony sentence. (Emphasis added.) Id.
{¶34} Ohio courts have repеatedly recognized that where a defendant was incarcerated on a prior unrelated conviction during the pendency of the present case, he is not entitled to jail-time credit. Marini, supra, at ¶16-21. Accordingly, this court, in State v. Struble, 11th Dist. Lake No. 2005-L-115, 2006-Ohio-3417, held, “[t]here 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.” Id. at ¶11. The Fifth District in Marini adroitly stated: “The language of