State v. Evans, 21751 (9-21-2007)State v. Evans, 21751 (9-21-2007)
{¶ 1} Defendant-appellant Daryl L. Evans appeals from a judgment of conviction and sentence, following a jury trial, for Assault, a fifth-degree felony. Evans‘s sole contention is that the trial court did not correctly calculate the jail-time credit. The record reflects that the trial court, in its sentencing entry, incorporated a calculation of a jail-time
{¶ 2} The record does not portray the error asserted. Consequently, the judgment of the trial court must be Affirmed. If there is, in fact, some error in the calculation of Evans‘s jail-time credit, he may raise this issue in the trial court and make up a suitable record. Our disposition of this appeal is without prejudice to any motion Evans may wish to make in the trial court to correct an error in the calculation of his jail-time credit.
I
{¶ 3} On July 10, 2006, a jury found Evans guilty of Assault. The jury found that the offense occurred on the grounds of a state correctional institution, that the complainant was an employee of the Ohio Department of Rehabilitation and Correction, and that Evans was incarcerated in a state correctional institution at the time of the offense.
{¶ 4} The transcript of docket entries supplied by the Montgomery County Clerk of Courts reflects that an “Entry and Warrant to Transport Prisoner to the Ohio Department of Rehabilitation and Corrections” was filed in this cause on August 18, 2006, but this entry is not included in the record on appeal. Nevertheless, Evans has attached what appears to be a photocopy of this one-page entry to his brief, and the State does not challenge its accuracy. We will therefore assume that it is accurate and
{¶ 5} In that entry of August 18, 2006, the following statements appear: “Defendant was held in custody prior to conviction and sentencing for 2 days.” “Defendant was held in custody subsequent to conviction and sentencing for 76 days.”
{¶ 6} The termination entry is in our record. That entry, filed August 21, 2006, besides rendering the judgment of conviction and sentencing Evans to incarceration for six months, includes the following paragraph: “The number of days for which the defendant should receive jail time credit is indicated in the entry and warrant to transport filed in this case.”
{¶ 7} On August 21, 2006, the same day that the termination entry was filed, Evans filed his notice of appeal “from the adverse judgment rendered against him on August 21, 2006.”
II
{¶ 8} Evans‘s sole assignment of error is as follows:
{¶ 9} “THE TRIAL COURT BELOW PREJUDICIALLY ERRED IN FAILING TO GIVE THE APPELLANT AN ADDITIONAL FOUR AND ONE-HALF MONTHS JAIL TIME CREDIT, INCLUDING 25 DAYS IN THE `HOLE’ FOR THIS CASE WHILE AWAITING TRIAL ON THE CHARGES HEREIN IN ADDITION TO THE ALLEGED 77 DAYS JAIL TIME CREDIT GIVEN APPELLANT BETWEEN THE FINDING OF GUILTY HEREIN AND HIS SENTENCING HEREIN, INTER ALIA.”
{¶ 10} The State contends that the issue of Evans‘s jail-time credit is not properly before us. It contends that the trial court‘s “calculation of jail time credit was not filed
{¶ 11} Evans argues that he should have been given jail-time credit for an additional four and one-half months, but he does not indicate why he is entitled to this additional jail-time credit, or how the record supports his claim. A defendant is entitled to jail-time credit for days confined for any reason arising out of the offense for which he is convicted and sentenced, but not for days confined for an unrelated reason. State v. Brown (January 26, 2001), Montgomery App. No. 18427.
{¶ 12} The State contends that Evans was confined, during the four and a half months at issue, on unrelated charges. Evans appears to be arguing, by implication, at least, that during this four and a half month period he was confined as a result of this Assault charge. There is nothing in the record from which we can resolve this factual issue.
{¶ 13} It is the duty of an appellant to portray error in the record. If the trial court has, in fact, miscalculated the jail-time credit to which Evans is properly entitled, it is not apparent from this record. Accordingly, we must overrule Evans‘s sole assignment of error.
{¶ 14} In view of the State‘s assertion that this appeal is premature, and that Evans ought, properly, to raise the issue of the correctness of his jail-time credit initially
III
{¶ 15} Parenthetically, we conclude that current procedures for awarding jail-time credit are incomplete, and that the problems caused thereby should in some way be addressed by the Ohio Supreme Court.
{¶ 16} “[W]here, for whatever reason, a defendant remains in jail prior to his trial he must be given credit on the statutorily fixed sentence ultimately imposed for all periods of confinement.” White v. Gilligan (1972), 351 F.Supp. 1012, 1014. The requirement is grounded in the Equal Protection Clause of the Fourteenth Amendment. Id.
{¶ 17} The General Assembly addressed the requirement by enacting
{¶ 18} “The department of rehabilitation and correction shall reduce the stated prison term of a prisoner or, if the prisoner is serving a term for which there is parole eligibility, the minimum and maximum term or the parole eligibility date of the 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, and confinement while awaiting transportation to the place where the prisoner is to serve the prisoner‘s prison term.”
{¶ 19}
{¶ 20} Regulations promulgated by the department of rehabilitation and correction appear at
{¶ 21} The reference to the sheriff in
{¶ 22} Missing from these procedures is any requirement that the sentencing court calculate and report the number of days of jail time credit, if any, to which a defendant is entitled.
{¶ 23}
{¶ 24}
{¶ 25} In State v. Aliane, 2004-Ohio-3730, the defendant was resentenced following a sentencing error, but the court failed to allow him a jail time credit it had granted in its previous sentence. On that record, the defendant and the State agreed that defendant was entitled to the credit. The Tenth District Court of Appeals therefore sustained error that the defendant had assigned and remanded the case for calculation and award of jail time credit.
{¶ 26} Unlike in Aliane, there is no basis in the record before us to find that Evans is entitled to jail time credit that he was denied by the trial court‘s failure to award the credit in its judgment of conviction and sentence, or “termination entry,” as it is called in Montgomery County. Therefore, a reversal and remand for that purpose is not a form of relief we can offer. We suggest, based on the State‘s assertion that the issue is premature, that Evans can yet seek relief in the trial court. However, it is unclear what procedure can be invoked for that purpose.
{¶ 27} We suggest that, with respect to this particular question, and in view of the constitutional right involved, the mandate of
{¶ 28} A more comprehensive solution is yet available, however. The Ohio Supreme Court may wish to consider amending its Rules of Superintendence by requiring sentencing courts to specify in the judgment of conviction and sentence whether the defendant is entitled to jail-time credit for purposes of
IV
{¶ 29} Evans‘s sole assignment of error is overruled. The judgment of the trial court is Affirmed, without prejudice to any motion that Evans may make in the trial court to seek to correct an alleged error in his jail-time credit calculation.
WOLFF, P.J., and GRADY, J., concur.