State v. HendersonState v. Henderson
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-16-603235-A, CR-17-614549-A and CR-17-615052-A
BEFORE: Celebrezze, J., S. Gallagher, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: August 9, 2018
Brian R. McGraw
55 Public Square, Suite 2100
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
BY: Shannon M. Musson
Frank Romeo Zeleznikar
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{1} Defendant-appellant, Steven Henderson (“appellant“), brings this appeal challenging the trial court‘s calculation of jail-time credit and imposition of consecutive sentences. Specifically, appellant argues that the trial court erred by failing to award him jail-time credit for the time he served at a community-based correctional facility (“CBCF“), and that the trial court‘s consecutive sentence finding under
I. Factual and Procedural History
{2} Appellant pled guilty in three separate criminal cases. First, in Cuyahoga C.P. No. CR-16-603235-A, appellant pled guilty on March 28, 2016, to robbery and abduction. On April 18, 2016, the trial court sentenced appellant to community control sanctions in a CBCF for a period of one year on his robbery and abduction convictions. The trial court issued a journal entry on the same day modifying the term of appellant‘s community control sanctions from one to five years. While appellant was on community control, he was charged in two additional criminal cases.
{3} Second, in Cuyahoga C.P. No. CR-17-614549-A, appellant pled guilty on August 10, 2017, to aggravated burglary, aggravated robbery, and felonious assault with a notice of prior conviction specification. Third, in Cuyahoga C.P. No. CR-17-615052-A, appellant pled guilty to theft on August 10, 2017.
{4} The trial court held a sentencing hearing on September 7, 2017, during which it
{5} On October 6, 2017, appellant filed the instant appeal challenging the trial court‘s judgment.1 He assigns two errors for review:
I. The trial court neglected to credit the appellant with proper jail credit for days served in jail and at the community based correctional facility in his initial case.
II. [Appellant‘s] consecutive sentence was based on a misunderstood application of the consecutive sentencing law, [
R.C. ]2929.14(C)(4)(b) .
II. Law and Analysis
A. Jail-Time Credit
{6} In his first assignment of error, appellant argues that the trial court erred in determining the number of days of jail-time credit to which he was entitled.
{7}
{8} “Confinement” is construed as time in which one is not free to come and go as he or she wishes. State v. Napier, 93 Ohio St.3d 646, 648, 758 N.E.2d 1127 (2001). In Napier, the Ohio Supreme Court held that “all time served in a community-based correctional facility constitutes confinement for purposes of
{9} In the instant matter, the trial court did not determine appellant‘s jail-time credit during the September 7, 2017 sentencing hearing. The trial court determined that appellant was entitled to 198 days of jail-time credit in its sentencing journal entries. The trial court did not specify, however, whether its determination pertained to the days that appellant served in county jail, the CBCF, or both.
{10} It is undisputed that appellant is entitled to jail-time credit for the time he served at the CBCF. Appellant argues that he is entitled to a total of 229 days of jail-time credit — (1) January 29, 2016 through April 21, 2016, the time he spent in jail during the pendency of CR-16-603235-A, and (2) April 21, 2016 through his release on September 13, 2016, the time he spent in jail and/or the CBCF following the trial court‘s April 18, 2016 sentencing hearing in CR-16-603235-A.
{11} Although the state concedes that appellant is entitled to jail-time credit for the time
{12} In Napier, 93 Ohio St.3d 646, 758 N.E.2d 1127, the Ohio Supreme Court rejected the state‘s argument that the defendant was only entitled to jail-time credit for the time that he spent in “lockdown” at the CBCF, not the defendant‘s entire tenure at the CBCF. Id. at 648. As noted above, the court concluded that all time served in a CBCF constitutes “confinement” for purposes of jail-time credit and
{13} For all of the foregoing reasons, appellant‘s first assignment of error is sustained.
B. Consecutive Sentences
{14} In his second assignment of error, appellant argues that the trial court erred in imposing consecutive sentences.
{15} We review felony sentences under the standard set forth in
{16}
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to
section 2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under postrelease control for a prior offense.(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{17} Compliance with
{18} In the instant matter, in making the first finding, the trial court stated, “The Court further finds that the — that consecutive sentences are necessary to protect the public from future crime or to punish the offender[.]” (Tr. 56.) In making the second finding, the trial court
{19} Appellant‘s challenge to the trial court‘s imposition of consecutive sentences pertains to the third finding under
{20} In making the third
The Court also finds that as a part of one or more courses of conduct, and the harm caused in this matter to the elderly victim here, that the offense was so great or unusual, that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflect the seriousness of the offender‘s conduct.
(Tr. 57.) Appellant contends that although
{21} We initially note that “a word-for-word recitation of the language of [
{22} Assuming, arguendo, that the trial court‘s finding under
{23} After reviewing the record, we find that the trial court did not err in imposing consecutive sentences. The record reflects that the trial court made the appropriate consecutive sentence findings, and the trial court engaged in the correct analysis required under
{24} For all of the foregoing reasons, appellant‘s second assignment of error is overruled.
III. Conclusion
{25} After thoroughly reviewing the record, we find that the trial court erred by failing to award appellant jail-time credit for the time he spent in the CBCF. The trial court‘s judgment awarding appellant 198 days of jail-time credit is reversed, and the matter is remanded to the trial court to grant appellant jail-time credit for the time he spent in jail and in the CBCF.
{26} The trial court did not err in imposing consecutive sentences. Accordingly, appellant‘s 11-year and 9-month prison sentence is affirmed.
{27} Judgment affirmed in part, reversed in part, and remanded to the lower court for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share the 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.
FRANK D. CELEBREZZE, JR., JUDGE
SEAN C. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR