State of Ohio v. Cordell Henderson Culp
Court of Appeals No. L-19-1281
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Decided: November 13, 2020
2020-Ohio-5287
Trial Court No. CR0201902009
Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellant.
Autumn D. Adams, for appellee.
MAYLE, J.
{¶ 1} In this appeal, appellant, the state of Ohio, asks us to reverse the November 6, 2019 judgment of the Lucas County Court of Common Pleas that found
I. Background
{¶ 2} On June 10, 2019, Culp was indicted on one count of aggravated robbery in violation of
{¶ 3} Culp and the state reached a plea agreement that allowed Culp to plead no contest to a reduced charge of robbery in violation of
{¶ 4} The primary issue at the sentencing hearing was whether Culp was entitled to jail-time credit against his mandatory prison sentence for the time he was incarcerated prior to sentencing. Culp was held in jail in lieu of bail from the time of his arrest until the time of his sentencing, which amounted to 156 days. In response to questions from the court, Culp explained that he was unable to afford bail, which the court set during Culp‘s arraignment at “$100,000.00 no 10% allowed as to count 1 and supervised own recognizance as to counts 2 and 3 * * *.” Culp claimed that he would have posted bail and been released if he had the money to do so, but he could neither afford to pay the bail outright nor pay a bondsman to post the bail for him. He also said that he did not have any friends or family members who offered to post his bail.
{¶ 5} Culp argued that the trial court was required to award him credit for the days he spent in jail prior to his sentencing, even though the Revised Code expressly provides that mandatory prison terms imposed for firearm specifications cannot be reduced through jail-time credit. As an indigent person, he claimed that he was treated differently than people who were not indigent and could afford bail, and failing to credit him for the time he was confined in lieu of bail would violate his equal protection rights under the U.S. and Ohio Constitutions. Specifically, Culp argued, he spent nearly five months in jail before his sentencing and unless the trial court granted him credit for those days, he would be incarcerated for a total of one year and five months simply because he was indigent, while a wealthier defendant who could afford to post bail and was facing the same one-year mandatory sentence would be incarcerated for only one year. In support of his argument, Culp cited to State v. Dubose, 2d Dist. Montgomery No. 26105, 2015-Ohio-621, an OVI case in which the Second District found that the defendant‘s equal protection rights were violated when the trial court failed to give him credit against a mandatory sentence imposed under
{¶ 6} The state responded that Culp was asking the court to ignore the plain language of the Revised Code, which clearly states that prison time imposed for a firearm specification is mandatory and cannot
{¶ 7} After hearing the parties’ arguments, the trial court determined that it could not apply the statutory prohibition against awarding jail-time credit on mandatory firearm specification prison terms because
if I were not to give Mr. Culp jail credit to the spec in this situation, it would violate both his federal and Ohio equal protection rights as it would treat him differently as an indigent person than someone under the exact same circumstance who had the money to post bail so, therefore, I will be giving him 156 days credit as to the gun spec. I‘m not saying that the gun spec statute is unconstitutional, I‘m only saying I can‘t apply it in this case.
{¶ 8} The court went on to sentence Culp to one year of mandatory prison time under
{¶ 9} The state now appeals, raising one assignment of error:
The trial court erred in finding that
R.C. 2929.14(B)(1)(a) is unconstitutional as applied to the defendant in this case.
II. Law and Analysis
{¶ 10} In its assignment of error, the state argues that the trial court erred because
{¶ 11} We review criminal sentences under
(a) That 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 Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶ 12} Mandatory prison terms are required for certain offenses listed in
{¶ 13} Under
shall impose a prison term * * * for * * * [a]ny offense, other than [carrying concealed weapons], that is a felony, if the offender had a firearm on or about the offender‘s person or under the offender‘s control while committing the felony, with respect to a portion of the sentence imposed pursuant to division (B)(1)(a) of section 2929.14 of the Revised Code for having the firearm[.] (Emphasis added.)
Under the plain language of the statute, when a defendant is convicted of committing any felony (with the exception of carrying concealed weapons) while having or controlling a firearm, the court is required to impose a prison term—not community control sanctions—in addition to the mandatory prison term for the firearm specification required by
{¶ 14} A plea to or conviction of a firearm specification automatically meets the criteria in
{¶ 15} Here, the trial court imposed a sentence that is clearly and convincingly contrary to law. Because Culp pleaded no contest to a firearm specification under
{¶ 16} The parties and the trial court relied on State v. Hamm, 2016-Ohio-2938, 65 N.E.3d 143 (8th Dist.), to support the imposition of a prison sentence for the firearm specification and a concurrent term of community control for the underlying robbery conviction. Hamm is distinguishable, though, because the defendant in that case was convicted of attempted criminal gang activity, intimidation, and attempted felonious assault—none of which require a mandatory prison term under
{¶ 17} We note that the legislature‘s requirement of a prison sentence for an offense committed when the defendant had or controlled a firearm remedies any equal protection concerns in this case. Although
the statute that controls “[c]redit for confinement awaiting trial and commitment.” So, in this case, on remand, when the trial court imposes a prison sentence for Culp‘s robbery conviction—which must be 9, 12, 18, 24, 30, or 36 months under
{¶ 18} Because the trial court‘s sentence is contrary to law, the state‘s assignment of error is well-taken.
III. Conclusion
{¶ 19} In sum, “[j]udges have no inherent power to create sentences. Rather, judges are duty-bound to apply sentencing laws as they are written.” (Internal quotations and citations omitted.) State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 10. In this case, that means that the trial court was duty-bound to impose a prison term for both the firearm specification and the underlying robbery conviction. Because it did not do so, we find that the portion of Culp‘s sentence related to the robbery conviction is clearly and convincingly contrary to law. We therefore vacate the portion of the sentence imposed in the November 6, 2019 judgment of the Lucas County Court of Common Pleas for Culp‘s robbery conviction and remand the matter to the trial court for resentencing on that count only. The trial court‘s sentences on the firearm specification and the weapons under disability
Judgment reversed, in part, and affirmed, in part.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J.
Christine E. Mayle, J.
Gene A. Zmuda, P.J.
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.