STATE OF OHIO v. CONRAD E. DAVIS
Appellate Case No. 27495; Trial Court Case No. 2016-CR-3425
IN THE COURT OF APPEALS OF OHIO, SECOND APPELLATE DISTRICT, MONTGOMERY COUNTY
October 12, 2018
2018-Ohio-4137
(Criminal Appeal from Common Pleas Court)
Rendered on the 12th day of October, 2018.
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
MICHAEL HALLOCK, JR., Atty. Reg. No. 0084630, P.O. Box 292017, Dayton, Ohio 45429 Attorney for Defendant-Appellant
WELBAUM, P.J.
Facts and Course of Proceedings
{¶ 2} On January 6, 2017, Davis was charged by bill of information with one count of involuntary manslaughter and two counts of felonious assault of a peace officer, all felonies of the first degree. One of the felonious assault counts included a three-year firearm specification, a five-year firearm specification, and a seven-year firearm specification. Davis entered a plea agreement and pled guilty as charged in the bill of information in exchange for receiving concurrent sentences for the two counts of felonious assault. After accepting Davis‘s guilty plea, the trial court ordered a presentence investigation report (“PSI“) and scheduled the matter for a sentencing hearing on February 17, 2017. At the sentencing hearing, the trial court sentenced Davis to an aggregate term of 15 years in prison and awarded him 102 days of jail-time credit, as
{¶ 3} On March 10, 2017, Davis filed a timely appeal. Thereafter, on July 21, 2017, Davis‘s assigned appellate counsel filed a brief under the authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating there were no issues with arguable merit for appeal. After reviewing the matter, we issued a decision and entry on December 28, 2017, finding at least one issue with arguable merit for appeal, concerning the trial court‘s jail-time credit calculation of 102 days. Specifically, we found that the trial court relied on the jail-time credit calculation in the PSI, which incorrectly indicated that Davis‘s sentencing hearing occurred on February 10, 2017, as opposed to February 17, 2017. Since the author of the PSI arrived at 102 days by calculating the days between the date Davis was placed in custody, November 1, 2016, and the incorrect sentencing hearing date of February 10, 2017, we found that a non-frivolous issue existed as to whether the jail-time credit calculation was seven days short.
{¶ 4} In light of this finding, we rejected Davis‘s Anders brief and appointed new counsel to file an appellate brief addressing the jail-time credit issue as well as any other issues that counsel deemed appropriate. In response, Davis‘s newly appointed counsel has filed an appellate brief raising a single assignment of error for review.
Assignment of Error
{¶ 5} Davis‘s sole assignment of error is as follows:
THE TRIAL COURT ERRED BY ERRONEOUSLY FAILING TO AWARD DEFENDANT-APPELLANT CONRAD DAVIS (“DAVIS“) HIS APPROPRIATE JAIL TIME CREDIT.
{¶ 7} The State concedes that the trial court erred in awarding Davis 102 days of jail-time credit, but contends that Davis was only entitled to an additional seven days, making the appropriate award of jail-time credit 109 days. According to the State, Davis‘s jail-time credit should have been calculated from the date Davis was placed into custody, November 1, 2016, to the date of his February 17, 2017 sentencing hearing. While the State agrees that Davis was entitled to credit against his sentence for the three days he was confined while awaiting his transportation to prison, the State maintains that those days are to be calculated and awarded by the Department of Rehabilitation and Correction, not the trial court. We agree with the State.
{¶ 8}
{¶ 9}
{¶ 10}
(B) The sentencing court determines the amount of time the offender served before being sentenced. The court must make a factual determination of the number of days credit to which the offender is entitled by law and, if the offender is committed to a state correctional institution,
forward a statement of the number of days of confinement which he is entitled by law to have credited. This information is required to be included within the journal entry imposing the sentence or stated prison term. (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 days, 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.
(D) The number of days, if any, specified in the court‘s journal entry committing the offender to the department is the 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 * * * 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 date of the entry and the date committed to the department, as reflected in the sheriff‘s record.
(Emphasis added.)
{¶ 11} “Pursuant to
{¶ 12} It is clear from the language in
{¶ 13} In State v. Wade, 2d Dist. Clark No. 2015-CA-45, 2015-Ohio-5171, we held that the trial court erred in awarding jail-time credit “from November 30, 2014 until conveyance to the penitentiary system.” Id. at ¶ 14-15. Specifically, we found that awarding jail-time credit in such a manner was erroneous because
{¶ 14} Because the trial court must specify a defendant‘s total number of days of jail-time credit, the trial court‘s factual determination as to jail-time credit is necessarily limited to the amount of time that the defendant was in confinement prior to sentencing. At the time of sentencing, the trial court has no way of knowing how long it will take a defendant to be transported to prison after the defendant has been sentenced; therefore, any days the defendant spends in confinement while awaiting transportation to prison cannot properly be included in the trial court‘s jail-time credit calculation. Accordingly, we agree with the State that the trial court‘s duty was limited to calculating the number of days that Davis was confined as of the date of his sentencing hearing.
{¶ 15} In this case, Davis was sentenced on February 17, 2017, not February 10, 2017. Since Davis was placed in custody on November 1, 2016, we find that the trial court should have awarded Davis 109 days of jail-time credit as opposed to 102 days of credit. Any failure on the part of the Department of Rehabilitation and Correction to credit Davis with the three days he was confined between his sentencing and his transportation to prison is a matter that Davis must raise with the Department of Rehabilitation and Correction.
{¶ 16} That said, we note that an inaccurate determination of jail-time credit at sentencing is not grounds for setting aside the conviction or sentence and does not otherwise render the sentence void or voidable.
{¶ 17}
{¶ 18} Davis‘s sole assignment of error is sustained.
Conclusion
{¶ 19} Having sustained Davis‘s sole assignment of error, the judgment of the trial court is reversed only as to its calculation of jail-time credit, and the matter is remanded for the trial court to issue a corrected sentencing entry nunc pro tunc that credits Davis with 109 days of jail time served.
DONOVAN, J. and HALL, J., concur.
Mathias H. Heck, Jr.
Andrew T. French
Michael Hallock, Jr.
Hon. Dennis J. Langer