State v. CollierState v. Collier
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: September 16, 2021
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Brandon A. Piteo, Assistant Prosecuting Attorney, for appellant.
Flannery | Georgalis, L.L.C., and Paul N. Flannery, for appellee.
EILEEN T. GALLAGHER, J.:
{¶ 1} Plaintiff-appellant, the state of Ohio (“the state“), appeals an order granting jail-time credit to defendant-appellee, Sharon Collier (“Collier“), and claims the following error:
The trial court committed plain error by including post-sentence prison time in its calculation of Collier‘s jail time credit, in contravention of
R.C. 2929.19(B)(2)(h)(i) andR.C. 2967.191(A) .
{¶ 2} We find merit to the appeal and reverse the trial court‘s judgment.
I. Facts and Procedural History
{¶ 3} In March 2018, Collier and her codefendants were charged in a 91-count indictment with one count of aggravated theft; one count of telecommunications fraud; 32 counts of forgery; and 54 counts of money laundering. The indictment alleged that, over a period of three years, Collier made unauthorized withdrawals from company accounts while working as an office manager for Taylored Construction Services. Following several pretrials, Collier pleaded guilty to one count of aggravated theft; two counts of money laundering; and seven counts of forgery. The court sentenced Collier to consecutive prison terms totaling six years, and Collier appealed. This court affirmed Collier‘s convictions but remanded the case to the trial court for resentencing on grounds that the trial court failed to make all the findings required for the imposition of consecutive sentences. See State v. Collier, 8th Dist. Cuyahoga No. 108687, 2020-Ohio-3033.
{¶ 4} On remand, the trial court resentenced Collier to an agreed three-year concurrent sentence. By this time, Collier had served 12 days in the county jail awaiting trial and 438 days in the Ohio Reformatory for Women following her convictions and original sentence. After resentencing, Collier filed a motion for jail-time credit. The trial court granted the motion, that was unopposed, and ordered
II. Law and Analysis
{¶ 5} In its sole assignment of error, the state argues the trial court committed plain error in awarding Collier 438 days of jail-time credit for time served in the Ohio Reformatory for Women. Because the state did not oppose Collier‘s motion for jail-time credit, it forfeited all but plain error. State v. Philpot, 8th Dist. Cuyahoga Nos. 108271, 208272, and 108373, 2020-Ohio-104, ¶ 33 (failure to object to trial court‘s calculation of jail-time credit forfeits all but plain error).
{¶ 6} Under
{¶ 8} Former
[d]etermine, notify the offender of, and include in the sentencing entry the number of days 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 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.
Former
{¶ 9}
if the sentencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall * * * [d]etermine, 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.
{¶ 10}
The department of rehabilitation and correction shall reduce the 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, 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)(h)(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 * * * 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.
{¶ 11} Nevertheless,
{¶ 12} Collier nevertheless contends the trial court was required to include the number of days she served in ODRC custody in its jail-time calculation and that the trial court is only precluded from calculating time served in ODRC custody for
{¶ 13}
{¶ 14} The sole assignment of error is sustained.
{¶ 15} Judgment reversed. Case remanded to the trial court to recalculate Collier‘s jail-time credit without inclusion of time served in ODRC custody.
It is ordered that appellant recover from appellee 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.
EILEEN T. GALLAGHER, JUDGE
MARY J. BOYLE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR