STATE OF OHIO v. DARIUS JONES
C.A. No. 12CA0024
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
Dated: December 28, 2012
[Cite as State v. Jones, 2012-Ohio-6150.]
MOORE, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO CASE No. 06-CR-0467
MOORE, Judge.
{1} Defendant, Darius Jones, appeals from the judgment of the Wayne County Court of Common Pleas. This Court affirms in part, reverses in part, and remands this matter to the trial court for further proceedings consistent with this opinion.
I.
{2} In 2006, Mr. Jones was indicted on one count of possession of crack cocaine, a first degree felony, one count of possession of cocaine, a third degree felony, forfeiture specifications attendant to the first and second counts, and one count of falsification, a first degree misdemeanor. These charges stemmed from a traffic stop of Mr. Jones’ car, during which Mr. Jones lied to police officers about his identity, and during which the officers located alleged powder and crack cocaine in his vehicle and on his person. Mr. Jones initially pleaded not guilty to the charges and filed a motion to suppress the evidence, arguing that he did not give the officers consent to search his vehicle. The trial court denied the motion. Thereafter, Mr. Jones
{3} On July 18, 2007, the trial court entered a forfeiture order requiring forfeiture of the cash found on Mr. Jones’ person at the time of his arrest. On June 11, 2008, the trial court issued a nunc pro tunc sentencing entry reflecting a finding of guilt on the forfeiture specifications. Mr. Jones appealed from the nunc pro tunc entry, and this Court affirmed Mr. Jones convictions. State v. Jones, 9th Dist. No. 08CA0033, 2009-Ohio-670.
{4} In 2009, Mr. Jones filed a motion to withdraw his plea, which the trial court denied. Mr. Jones attempted to appeal from the order denying his 2009 motion, but we dismissed his appeal from that order because it was not timely filed.
{5} In 2010, Mr. Jones filed a motion for resentencing, which the trial court denied. Mr. Jones appealed from the order denying his motion. This Court affirmed in part the trial court‘s ruling; however, we determined that postrelease control had not been properly imposed, and we remanded this matter to the trial court for proper imposition of postrelease control. State v. Jones, 9th Dist. No. 10CA0022, 2011-Ohio-1450, ¶ 13. Thereafter, Mr. Jones filed a new motion to vacate his plea. After issuing a resentencing entry on May 19, 2011, which corrected the imposition of postrelease control, the trial court denied Mr. Jones’ motion to vacate his plea. Mr. Jones filed a notice of appeal from the resentencing entry in Case No. 11CA0030 and a notice of appeal from the entry denying his motion to vacate his plea in Case No. 11CA0034. Mr. Jones also filed a motion to reopen his appeal in Case No. 08CA0033. We granted his motion to reopen and consolidated Case Nos. 08CA0033, 11CA0030, and 11CA0034.
{6} On April 6, 2012, the trial court issued a sentencing entry which included a sentence on the forfeiture specifications. Mr. Jones timely appealed, and he now raises eight assignments of error for our review. We have re-ordered certain assignments of error to facilitate our discussion.
II.
{7} Initially, we note that the State has argued that our review of Mr. Jones’ arguments is barred by res judicata. “The doctrine of res judicata prevents repeated attacks on a final judgment and applies to all issues that were or might have been previously litigated.” (Citations omitted.) State v. Lowe, 9th Dist. No. 25475, 2011-Ohio-3355, ¶ 7. However, as set forth above, this Court dismissed Mr. Jones’ last attempted appeal based upon our determination that the trial court had not yet issued a final, appealable order. Accordingly, res judicata does not bar Mr. Jones’ challenges to the April 6, 2012 sentencing entry, and we will proceed to discuss his arguments on the merits.
ASSIGNMENT OF ERROR VI
THE TRIAL COURT ERRED BY OVERRULING THE MOTION TO SUPPRESS EVIDENCE.
{8} In his sixth assignment of error, Mr. Jones argues that the trial court erred in overruling his motion to suppress evidence because he did not give officers consent to search his car, and he instead acquiesced to the search based upon the officers’ claim of lawful authority.
{9} The Supreme Court of Ohio has held that:
[a]ppellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Consequently, an appellate court must accept the trial court‘s findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.
(Internal citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.
{10} “When police conduct a warrantless search, the state bears the burden of establishing the validity of the search. Searches and seizures without a warrant are per se unreasonable except in a few well-defined and carefully circumscribed instances.” (Citation omitted.) State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 98. One such exception to the warrant requirement arises when officers obtain consent to search. State v. Posey, 40 Ohio St.3d 420, 427 (1988), citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). “To rely on the consent exception of the warrant requirement, the state must show by clear and positive evidence that the consent was freely and voluntarily given.” (Citations omitted.) Posey at 427; see also State v. Hetrick, 9th Dist. No. 07CA009231, 2008-Ohio-1455, ¶ 23. Whether consent to a search was voluntarily given is determined by the totality of the circumstances. State v. Childress, 4 Ohio St.3d 217 (1983), paragraph one of the syllabus.
{11} The trial court made the following findings of fact. In our discussion of Mr. Jones’ purported consent, we will accept these findings, as they are supported by competent, credible evidence. See Burnside at ¶ 8. On October 14, 2006, a confidential informant reported to the Wooster Police Department that a man would be transporting a large quantity of cocaine to
{12} The officer performed a window tint test on Mr. Jones’ rear window and gave Mr. Jones a written warning regarding the level of tint. He then told Mr. Jones that he was free to leave, unless there was anything further that the officer should be concerned about. In response, Mr. Jones patted his chest and waist, indicated that there was nothing there, and told the officer that he could look. The officer, along with another officer, Officer Rotolo, who had arrived at the scene, ultimately searched Mr. Jones’ car, resulting in the discovery of 43 grams of crack cocaine, 42 grams of powder cocaine, a baggie containing a small amount of cocaine, and $4467 in cash.
{13} At the suppression hearing, Mr. Jones admitted telling Officer Heim that he was his brother, Dearco Jones, and admitted providing the officer with his brother‘s social security number. Mr. Jones explained that he gave the officer his brother‘s identifying information because he did not have a driver‘s license. He also remembered Officer Heim telling him that he was “free to go unless [he had] something on [him] that [Officer Heim] should know about.” Regardless, Mr. Jones maintained that he did not consent to the search of the car. Instead, Mr. Jones contended that Officer Heim opened the door of his car and told him to get out. However, at the hearing, both officers testified that Mr. Jones had offered to let the officers look in his car, and that Mr. Jones opened the door exited the car.
{14} Mr. Jones has argued that he did not voluntarily consent to the search, but he was instead acquiescing to the search based upon the officers’ claim of authority. Whether Mr. Jones voluntarily consented depends on whether he or the officers were more credible as witnesses. Officer Heim‘s and Rotolo‘s statements about the incident were consistent with each other. Mr. Jones, on the other hand, admitted that he lied to Officer Heim twice about his identity. It, therefore, was proper for the trial court to determine that his testimony was less credible. Based on a review of the totality of the circumstances, we conclude that the trial court did not err in determining that Mr. Jones voluntarily consented to the search of his vehicle. His sixth assignment of error is overruled.
ASSIGNMENT OF ERROR I
[MR.] JONES‘[ ]CHANGE OF PLEA WAS NOT MADE KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY.
{15}
Under [
Crim.R. 11 ], the trial judge may not accept a plea of guilty or no contest without addressing the defendant personally and (1) [d]etermining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing, (2) informing the defendant of the effect of the specific plea and that the court may proceed with judgment and sentencing after accepting it, and ensuring that the defendant understands these facts, and (3) informing the defendant that entering a plea of guilty or no contest waives the constitutional rights to a jury trial, to confrontation, to compulsory process, and to the requirement of proof of guilt beyond a reasonable doubt and determining that the defendant understands that fact.
(Internal quotations omitted.) Clark at ¶ 27. See also
{16} “If a trial court fails to literally comply with
{17} If the trial court has not substantially complied with
{18} Here, Mr. Jones argues that the trial court failed to substantially comply with the mandates of
Potential Sentences
{19} Mr. Jones contends that the trial court conflated and confused the then applicable sentencing criteria for the first degree felony of possession of crack cocaine charge with the third degree felony of possession of cocaine charge. Mr. Jones further argues that the trial court misinformed him as to the maximum jail sentence he could receive on the misdemeanor charge of falsification and misinformed him as to the potential total maximum term of incarceration.
{20} Pursuant to former
{21} We conclude that, although the trial court misinformed Mr. Jones as to the minimum sentence applicable to a first degree felony, Mr. Jones was not prejudiced by this error. He was aware of the maximum potential sentence that he faced on this charge, and he has provided us with no indication that he would not have entered this plea had he been aware that the minimum term of incarceration applicable to a conviction on this charge was three years instead of one year. See Nero at 108.
{22} Next, in regard to the third degree felony possession charge, pursuant to the then applicable version of
{23} Mr. Jones also argues that the trial court erred by advising Mr. Jones that he would be subject to a term of incarceration of up to “six months” on the misdemeanor falsification charge. Pursuant to
{24} Mr. Jones further argues that the trial court failed to correctly inform him as to the total maximum sentence that it could impose. Because he faced convictions for a first degree felony, a third degree felony, and a first degree misdemeanor, Mr. Jones faced a potential term of incarceration of up to fifteen years and one hundred eighty days had the sentences been run consecutively. See former
{25} Accordingly, to the extent that Mr. Jones argues that his plea was not voluntarily, intelligently, or knowingly made due to the trial court‘s failure to specify the potential terms of incarceration in terms of the number of days, we overrule his first assignment of error.
References to “Guilty” Plea
{26} Next, Mr. Jones contends that, because the trial court repeatedly referenced his plea as that of “guilty” instead of “no contest,” this prevented him from understanding the consequences of a “no contest” plea.
{27}
{28} During the plea hearing, the Judge engaged in the following exchange with Mr. Jones:
* * *
[TRIAL COURT]: All right. Now have you been promised anything in exchange for your plea of guilty?
MR. JONES: No sir.
[TRIAL COURT]: Anybody promise you anything to get you to plead guilty?
MR. JONES: No sir.
* * *
[TRIAL COURT]: All right. Do you understand that you have certain constitutional rights that you give up when you plead guilty?
MR. JONES: Yes sir.
[TRIAL COURT]: And that your plea of guilty will result in conviction for these crimes?
MR. JONES: Yes sir.
* * *
{29} However, later during the plea hearing, defense counsel informed the trial court that it had misstated Mr. Jones’ plea:
* * *
[TRIAL COURT]: All right. Now having been advised of your rights and of the penalty that you face, do you still wish to plead guilty?
[DEFENSE COUNSEL]: No Your Honor –
[TRIAL COURT]: Or no contest, I‘m sorry.
[DEFENSE COUNSEL]: – no contest
[TRIAL COURT]: Plead no contest.
MR. JONES: Yes sir.
* * *
{30} Mr. Jones argues that, based upon the court‘s repeated references to his “guilty” plea, he did not understand that the trial court could proceed to judgment and sentence upon his entering a “no contest” plea, and thus the trial court failed to comply with
Finding of Guilt
{31} Lastly, Mr. Jones argues that his plea was not knowingly made because the trial court failed to make a finding of guilt on the record at the plea hearing. However, we cannot discern in what way a finding of guilt at the conclusion of the plea hearing would have informed Mr. Jones’ decision to plead no contest to the charges, and Mr. Jones has directed us to no authority to support this portion of his argument. Accordingly, to the extent that Mr. Jones argues that his no contest plea was not made intelligently, voluntarily and knowingly because a finding of guilt was not made on the record at the plea hearing, we decline to address that portion of his assignment of error. See
{32} Accordingly, Mr. Jones first assignment of error is overruled.
ASSIGNMENT OF ERROR V
THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING, WITHOUT A HEARING, TO PERMIT [MR.] JONES TO WITHDRAW HIS PLEA UPON HIS PRE-SENTENCE MOTION.
{33} In his fifth assignment of error, Mr. Jones argues that the trial court abused its discretion in denying his motion to withdraw his no contest plea without a hearing.
{34}
{35} Here, on May 18, 2007, the trial court held a sentencing hearing, and a sentencing entry stemming from this hearing was journalized on May 21, 2007. The trial court held a separate hearing on the forfeiture specifications on June 7, 2007, and a judgment entry stemming from this hearing was journalized on July 18, 2007. On June 11, 2008, the trial court issued another sentencing entry to correct the May 21, 2007 sentencing entry to include that Mr. Jones had pleaded no contest to the forfeiture specifications. On August 21, 2009, Mr. Jones filed a motion requesting the trial court to resentence him because the sentencing entries erroneously set forth that he was subject to “up to three[ ]years of post-release control,” when, by statute, the trial court should have sentenced him to a mandatory period of five years of postrelease control. In a response to Mr. Jones’ motion, the State agreed that the then existing case-law would require resentencing of Mr. Jones because the error in the postrelease control notification caused his sentencing entry to be “void.” The trial court scheduled resentencing for October 28, 2009. On October 27, 2009, Mr. Jones filed his motion to withdraw his no contest plea at issue here. The parties and the trial court proceeded with this motion as a “presentence” motion due to their understanding that Mr. Jones’ original sentence was “void” pursuant to the then existing case-law. On the day of resentencing, the trial court ordered that responsive briefs to Mr. Jones’ motion be filed before November 12, 2009. On November 12, 2009, the State filed a response to Mr. Jones’ motion, arguing that the motion “fail[ed] to state a basis for the withdrawal of his plea,” and that he had “failed to file a brief setting forth the basis[.]” On December 1, 2009, the
{36} As set forth above, the parties and the trial court proceeded on Mr. Jones’ motion pursuant to the standards applicable to a “presentence” motion. The parties do not argue on appeal that the trial court erred in this regard, nor do the parties’ argue that we review this motion under the “postsentence” standards. See State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 26 (“when a judge fails to impose statutorily mandated postrelease control as part of a defendant‘s sentence, that part of the sentence is void and must be set aside” (Emphasis sic.)). However, under the facts and circumstances of this case, the categorization of Mr. Jones’ motion as presentence or postsentence does not affect the result we reach, as we conclude that, even under the more lenient and relaxed standards applicable to presentence motions, any error in the trial court‘s failure to hold a hearing on Mr. Jones’ motion was harmless. State v. Wilborn, 9th Dist. No. 25352, 2011-Ohio-1038, ¶ 16 (finding trial court‘s failure to hold a hearing on a presentence motion to withdraw a plea amounted to harmless error).
{37} Where a defendant files a presentence motion to withdraw a plea, the general rule is that the motion should be “freely and liberally granted.” Id. at ¶ 8, quoting Xie at 527. Even so, it is the defendant‘s burden to demonstrate “a reasonable and legitimate basis for withdrawing a plea[.]” State v. DeWille, 9th Dist. No. 2101, 1992 WL 323896, *1 (Nov. 4, 1992). “One who enters a guilty plea has no right to withdraw it.” (Internal quotations and citations omitted.) Xie at 526. Although a defendant bears the burden of demonstrating a legitimate basis to withdraw his plea, “[a] trial court must conduct a hearing” to determine whether such a basis exists. (Emphasis added.) Xie at paragraph one of the syllabus.
{38} Here, the trial court denied Mr. Jones’ motion, determining, absent hearing, that Mr. Jones had not provided a rational basis for withdrawing his plea. We conclude that, based upon the facts and circumstances of this case, the trial court‘s failure to hold a hearing was harmless.
{39} In Mr. Jones’ motion, he merely set forth that his motion was “made prior to sentencing pursuant to the criminal rules of procedure,” and provided no basis for his request to withdraw his plea. In his merit brief, we can discern of only one basis that Mr. Jones argues that withdrawal of his plea would have been proper, namely that the
{40} This Court must disregard “[a]ny error, defect, irregularity, or variance which does not affect substantial rights[.]”
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED PLAIN ERROR BY CONVICTING AND SENTENCING MR. JONES FOR TWO COUNTS OF POSSESSION WHEN THEY WERE ALLIED OFFENSES OF SIMILAR IMPORT, IN VIOLATION OF THE CONSTITUTIONAL PROTECTION AGAINST DOUBLE JEOPARDY AND/OR STATE LAW.
{42} At sentencing, Mr. Jones did not object to the separate sentences on the two possession counts. Where a party has failed to raise an objection in the trial court, the objection may still be assigned as error on appeal if a showing of plain error is made. State v. Hairston, 9th Dist. No. 05CA008768, 2006-Ohio-4925, ¶ 9;
{43}
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{44} This statute “codifies the protections of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution, which prohibits multiple punishments for the same offenses.” State v. Williams, Slip Opinion No. 2012-Ohio-5699, ¶ 13, quoting State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 23.
{45} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, ¶ 44, the Ohio Supreme Court held that, in determining whether two offenses are allied offenses of similar
{46} Here, Count One of the indictment charged Mr. Jones with possession of “Crack Cocaine,” in an amount that exceeds 25 grams but is less than 100 grams, in violation of
{47} Mr. Jones essentially argues these two possession offenses were allied offense of similar import, subject to merger, because “there was one act of possession, and one substance in different forms.” In addressing this issue in a similar case, the Third District determined that the General Assembly intended to treat possession of crack cocaine and possession of powder cocaine as separate crimes, and such intent is demonstrated by the harsher penalties applicable to possession of crack cocaine than those applicable to powder cocaine under
{48} Accordingly, we conclude that Counts One and Two of the indictment charged Mr. Jones with distinct and separate offenses which were not subject to merger. Therefore, his second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE SENTENCING COURT COMMITTED PLAIN ERROR AND/OR THE JUDGMENT ENTRY OF SENTENCING IS CONTRARY TO LAW BECAUSE THE COURT MAY NOT SENTENCE FOR SIX MONTHS ON A MISDEMEANOR 1.
{49} Mr. Jones argues that the trial court committed plain error in sentencing him to a longer sentence for the falsification charge than is authorized by law. We conclude that this argument is moot.
{50} The Ohio Supreme Court has held:
[W]here a criminal defendant convicted of a misdemeanor, voluntarily satisfied the judgment imposed upon him or her for that offense, an appeal from the conviction is moot unless the defendant has offered evidence from which an inference can be drawn that he or she will suffer some collateral disability or loss of civil rights stemming from that conviction.
(Emphasis sic.) State v. Golston, 71 Ohio St.3d 224, 226 (1994), citing State v. Wilson, 41 Ohio St.2d 236 (1975), and State v. Berndt, 29 Ohio St.3d 3 (1987). In City of Cleveland Heights v.
{51} Here, Mr. Jones began serving his sentence on the misdemeanor conviction concurrent with his sentences on the felony convictions in 2008. He has therefore already completed his term of incarceration on the misdemeanor offense about which he raises argument, and he has offered no evidence from which we could infer that he would suffer collateral disability or loss of civil rights stemming from his falsification conviction. See Berndt at 4.
{52} Further, the circumstances surrounding the misdemeanor conviction indicate that Mr. Jones acquiesced in the conviction. Mr. Jones pleaded no contest to the charges against him in the trial court. As set forth in our recitation of the facts, this Court dismissed Mr. Jones’ first attempted appeal for want of a final, appealable order. Mr. Jones then moved the trial court to issue a new sentencing entry and to stay his sentence. On June 11, 2008, the trial court issued a new sentencing entry and issued an order denying Mr. Jones’ motion to stay his sentence. Mr. Jones did not file a motion to stay his sentence in this Court.
{53} Further, Mr. Jones did not challenge on appeal his misdemeanor sentence prior to completing the term of incarceration to which he was sentenced on this count. In Jones I, Mr. Jones assigned as error the denial of his motion to suppress and the trial court‘s ruling on the forfeiture specifications. Mr. Jones raised no argument in regard to the length of his sentence on the falsification conviction.
{54} Based upon the foregoing, we conclude the Mr. Jones acquiesced in his sentence imposed for the falsification conviction. See Lewis at paragraph one of the syllabus. Accordingly, we decline to address the merits of Mr. Jones’ third assignment of error, and we overrule this assignment of error as moot.
ASSIGNMENT OF ERROR IV
[MR.] JONES RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL RESULTING IN PLAIN ERRORS.
{55} In his fourth assignment of error, Mr. Jones argues that he received ineffective assistance of counsel. We disagree.
{56} We must analyze claims of ineffective assistance of counsel under a standard of objective reasonableness. See Strickland v. Washington, 466 U.S. 668, 688 (1984); State v. Bradley, 42 Ohio St.3d 136, 142 (1989). Under this standard, a defendant must show (1) deficiency in the performance of counsel “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2) that the errors made by counsel were “so serious as to deprive the defendant of a fair trial[.]” Strickland at 687. A defendant must demonstrate prejudice by showing that, but for counsel‘s errors, there is a reasonable possibility that the outcome of the trial would have been different. Id. at 694. In applying this test, “a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance[.]” Id. at 689. This Court need not address
{57} Here, Mr. Jones argues that his counsel was deficient by failing to alert the trial court to the purported errors set forth in his first, second, and third assignments of error, and for allegedly failing to notify Mr. Jones of the significance of these errors.
{58} However, in regard to Mr. Jones’ first assignment of error, we concluded that he had not demonstrated that his plea was not knowingly, voluntarily, and intelligently made. Therefore, we cannot discern of prejudice to Mr. Jones from his attorney‘s purported failure to correct the trial court‘s purported errors at the plea colloquy or from his attorney‘s alleged failure to advise him of the consequences of entering his plea. See Ray at ¶ 10.
{59} In regard to Mr. Jones’ second assignment of error, we concluded that Mr. Jones’ two possession convictions were not subject to merger. Therefore, trial counsel was not deficient for failing to raise this issue. Further, we cannot discern the prejudice to Mr. Jones arising from his trial counsel‘s failure to request that these sentences merge or from defense counsel‘s purported failure to explain to him the issues raised in the second assignment of error. See id.
{60} In regard to Mr. Jones’ third assignment of error, we concluded that, as he has served his sentence on the misdemeanor conviction, his argument as to this conviction is moot. Likewise, to the extent that he argues trial counsel was ineffective for failing to properly advise him as to the issues raised in his third assignment of error, his argument is moot. See Golston at 226.
{61} Lastly, Mr. Jones argues that his trial counsel was ineffective for failing to file a brief in support of his motion to withdraw his plea of no contest and to re-enter a plea of not guilty. In the motion to withdraw the plea, trial counsel noted that the “request is made prior to
{62} However, we cannot conclude that defense counsel was deficient for failing to submit a “responsive” brief, as this order would not seem to apply to the movant. Further, as set forth above in our response to Mr. Jones’ fifth assignment of error, Mr. Jones has not provided a basis on which he would have been permitted to withdraw his plea. Accordingly, we cannot say that the outcome of the proceeding would have been different had defense counsel submitted a brief in support of the motion, and, thus, Mr. Jones has failed to demonstrate prejudice.
{63} Therefore, Mr. Jones’ fourth assignment of error is overruled.
ASSIGNMENT OF ERROR VII
THE TRIAL COURT ERRED, OR COMMITTED PLAIN ERROR, BY STATING IN THE ENTRY OF SENTENCING, “CREDIT IS GRANTED FOR 2 DAYS OF THE FOREGOING DATE BECAUSE OF TIME SPENT IN CUSTODY IN THIS CASE PRIOR TO SENTENCING * * *” THEREBY FAILING TO GIVE PROPER CREDIT FOR TIME SERVED.
{64} In his seventh assignment of error, Mr. Jones argues that the trial court committed plain error by granting him only two days of jail-time credit in its April 6, 2012 sentencing entry.
{65}
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[.]
{66} Therefore, the Adult Parole Authority has a duty to grant jail time credit. However, the trial court “has a corresponding duty to properly calculate the total number of days credited.” State v. Apple-Wright, 9th Dist. No. 06CA008865, 2006-Ohio-5805, ¶ 16, citing State v. Eaton, 3d Dist. No. 14-04-53, 2005-Ohio-3238, ¶ 9, and State v. Smith, 71 Ohio App.3d 302, 303 (10th Dist.1992).
{67} Here, the 2012 sentencing entry provides that Mr. Jones be credited for two days of jail-time as “of the foregoing date.” The “foregoing date” refers the resentencing date of May 18, 2011. The State does not dispute that Mr. Jones is entitled to jail-time credit for his time of incarceration served between 2008 and 2011. Accordingly, to the extent that the trial court determined his jail time credit consisted of two days as of May 18, 2011, the trial court erred. Mr. Jones’ seventh assignment of error is sustained, and this matter is remanded to the trial court for determination and correction of Mr. Jones’ jail-time credit.
ASSIGNMENT OF ERROR VIII
THE TRIAL COURT, HAVING FAILED LEGALLY TO SENTENCE [MR.] JONES WITHIN A REASONABLE TIME, HAS LOST JURISDICTION TO DO SO, AND THE PRESENT SENTENCE MUST BE VACATED.
{68} In his eighth assignment of error, Mr. Jones argues that the trial court lost jurisdiction to sentence him because it failed to do so within a reasonable time. We disagree.
{69}
{70} Notwithstanding Mr. Jones’ failure to develop this portion of his argument, this court has held that
III.
{71} Mr. Jones’ first, second, third, fourth, fifth, sixth, and eighth assignments of error are overruled. Mr. Jones seventh assignment of error is sustained. The judgment of the trial
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed equally to both parties.
CARLA MOORE
FOR THE COURT
WHITMORE, P. J.
DICKINSON, J.
CONCUR.
CLARKE W. OWENS, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting Attorney, for Appellee.