State v. DearmondState v. Dearmond
Attorney for Plaintiff-Appellee
DAVID R. MILES, Atty. Reg. No. 0013841, 1160 East Dayton-Yellow Springs Road, Fairborn, Ohio 45324
Attorney for Defendant-Appellant
OPINION
Rendered on the 16th day of September, 2022.
LEWIS, J.
{¶ 2} Dearmond appeals from the court‘s judgment entry raising a single assignment of error relating to the imposition of his jail-time credit. The State has conceded error pursuant to
{¶ 3} We agree with Dearmond that the trial court erred in failing to specify the total number of days of jail-time credit that he earned as of the date of his sentencing. Accordingly, the judgment of the trial court will be reversed as to the grant of jail-time credit, and the matter will be remanded for the trial court to specify the total number of days of jail-time credit that Dearmond had earned up to and including the date of his sentencing. In all other respects, the judgment of the trial court will be affirmed.
I. Facts and Course of Proceedings
{¶ 4} On February 17, 2021, Dearmond was indicted on one count of robbery in violation of
{¶ 5} On January 24, 2022, Dearmond entered a guilty plea to the indictment as charged with no agreement on sentencing. After the trial court accepted the guilty plea,
{¶ 6} Sentencing was held on February 14, 2022; the trial court imposed a prison term of 36 months. The trial court stated that Dearmond would “receive credit for time spent in the Clark County jail towards [his] sentence.” Sentencing Tr., p. 6. The judgment entry filed thereafter granted jail-time credit “from September 5, 2021 until conveyance to ODRC.” Dearmond timely appealed.
I. Jail-Time Credit
{¶ 7} Dearmond‘s sole assignment of error on appeal states that:
THE TRIAL COURT ERRED IN NOT MAKING A PROPER JAIL-TIME CREDIT CALCULATION.
{¶ 8} Dearmond contends that the trial court erred by failing to specify the total number of days of jail-time credit that he earned at the time of sentencing and failing to include that total number in the judgment entry. In response, the State filed a notice of conceded error under
{¶ 9} “Where, for whatever reason, a defendant remains in jail prior to his trial, he must be given credit on the sentence ultimately imposed for all periods of actual confinement on that charge.” State v. Russell, 2d Dist. Montgomery No. 26503, 2015-Ohio-3373, ¶ 37, citing State v. Coyle, 2d Dist. Montgomery No. 23450, 2010-Ohio-2130, ¶ 5. The principal that a defendant is entitled to credit towards his sentence for all time spent in any jail while awaiting trial for that offense is codified in
{¶ 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, [and] as determined by the sentencing court under [R.C. 2929.19(B)(2)(g)(i)] * * *.
{¶ 11} When a trial court imposes a prison sentence for a felony in accordance with
{¶ 12} “The Ohio Administrative Code provides additional details regarding when a prisoner is entitled to jail-time credit and how to calculate a prison term, taking the credit into account.” Fugate at ¶ 9.
(A) The department of rehabilitation and correction shall reduce * * * the stated prison term of an offender by the total number of days specified by the sentencing court in the sentencing entry as required by [
R.C. 2929.19(B)(2)(g)(i) ]; by the number of days the offender was confined as a result of the offense, between the date of the sentencing entry and the date committed to the department, and by 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 offender was convicted and sentenced as determined by [R.C. 2967.191 ].(B) The sentencing court determines the amount of time the offender served locally 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 include this information within the sentencing entry * * *[.]
(Emphasis added.)
{¶ 13} In accordance with
{¶ 14} In this case, at the sentencing hearing, the trial court indicated Dearmond would “receive credit for time spent in the Clark County jail towards [his] sentence,” but it did not identify the total number of days for which Dearmond was entitled to jail-time credit. By the same token, in the judgment entry, the trial court awarded Dearmond jail-time credit “from September 5, 2021 until conveyance to [the Ohio Department of Rehabilitation and Corrections].” Again, the trial court did not identify the total number of days to which Dearmond was entitled to jail-time credit and further erred in including the time for which he would await transportation to the Ohio Department of Corrections. We have previously held that similar language used by the trial court that does not specify the total number of days and includes conveyance time in the jail-time credit calculation
{¶ 15} Nevertheless, 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.
{¶ 16} “[D]ue process requires that a defendant be given notice of, and an opportunity to be heard regarding, the findings the court intends to make on jail-time credit if an opportunity to be heard did not occur during the sentencing hearing.” State v. Flemings, 2d Dist. Montgomery No. 24615, 2011-Ohio-4286, ¶ 33. Here, Dearmond was not informed at his sentencing hearing of the total number of days of jail-time credit to which he was entitled, and it appears that he did not have an opportunity to be heard on that issue at any other time. Recently, in State v. Windsor, 2d Dist. Clark No. 2021-CA-25, 2022-Ohio-1785, we held that because the trial court‘s award of jail-time credit “from February 12, 2021 until conveyance to [the Ohio Department of Rehabilitation and Correction]” was specified only in the sentencing entry, and Windsor was not given the opportunity to be heard on the issue of jail-time credit at his sentencing hearing, that it was appropriate to remand the matter to the trial court in order for the court to specify the total number of days of jail-time credit that Windsor earned as of the date of his
II. Conclusion
{¶ 17} Having sustained Dearmond‘s sole assignment of error, the judgment of the trial court is reversed in part, as to the imposition of jail-time credit, and this matter is remanded to the trial court to specify the total number of days of jail-time credit that Dearmond is entitled to receive as of the date of his sentencing consistent with this opinion. In all other respects, the judgment of the trial court is affirmed.
DONOVAN, J. and EPLEY, J., concur.
Copies sent to:
Ian A. Richardson
David R. Miles
Hon. Douglas M. Rastatter