STATE OF OHIO, Plaintiff-Appellee, v. JUMAINE JONES, Defendant-Appellant.
No. 108438
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
RELEASED AND JOURNALIZED: April 2, 2020
2020-Ohio-1273
EILEEN A. GALLAGHER, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-17-614411-A and CR-17-614412-A
JUDGMENT: AFFIRMED IN PART; VACATED IN PART; REMANDED
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Gittel L. Chaiko, Assistant Prosecuting Attorney, for appellee.
Erin R. Flanagan, Esq., Ltd. and Erin R. Flanagan, for appellant.
EILEEN A. GALLAGHER, J.:
{1} Defendant-appellant Jumaine Jones appeals from the trial court‘s orders in Cuyahoga C.P. Nos. CR-17-614411 (“614411“) and CR-17-614412 (“614412“) imposing previously suspended jail sentences and ordering Jones to pay $2,532.30
Procedural History and Factual Background
{2} On February 16, 2017, a Cuyahoga County Grand Jury indicted Jones in 614411 and 614412. In 614411, Jones was indicted on two counts of criminal nonsupport in violation of
{3} The parties reached a plea agreement and, on August 14, 2018, Jones pled guilty to two amended counts of criminal nonsupport in violation of
{4} The trial court proceeded directly to sentencing. The trial court sentenced Jones to six months in jail on each count and suspended his jail sentences.
{5} Jones did not object to, or appeal, his sentences. On August 15, 2018, Jones was granted permission to travel. Jones failed to comply with the terms and conditions of his community control sanctions and the trial court scheduled a
{6} On April 9, 2019, the trial court held a community control violation hearing. Jones’ probation officer stated that during the time Jones was under community control sanctions he had failed to make any child support payments, had not complied with his reporting obligations to his probation officer and had outstanding fees and costs that he owed to the court. Jones admitted these community control violations.
{7} The trial court found Jones to have violated his community control sanctions, determined that he was not amenable to further community control sanctions, terminated his community control sanctions and imposed the previously suspended sentences. In 614411, the trial court sentenced Jones to an aggregate 12-month jail sentence, i.e., six months in the Cuyahoga County jail on each of the two counts to be served consecutively to each other and concurrently with the sentences in 614412.
{8} In 614412, at the April 9, 2019 hearing, the trial court sentenced Jones to an aggregate 24-month jail sentence, i.e., six months in the Cuyahoga County jail on each of the four counts to be served consecutively to each other and concurrently with the sentences in 614411. In its April 15, 2019 sentencing journal entry, the trial
{9} In both cases, the trial court granted Jones 104 days of jail-time credit, ordered him to pay $2,532.30 in “extradition fees” or “extradition costs”2 and entered judgment against him “in an amount equal to the costs of this prosecution.” Jones did not object to trial court‘s assessment of the extradition expenses against him.
{10} Jones appealed, raising the following three assignments of error for review:
First Assignment of Error: The trial court erred when it ordered consecutive service of the jail terms imposed within Case Numbers CR-17-614411 and CR-17-614412 after revoking appellant‘s community control because it was without authority to modify its prior sentencing judgments, which did not validly impose consecutive sentences.
Second Assignment of Error: The trial court abused its discretion in sentencing appellant to maximum consecutive terms of imprisonment for failure to adhere strictly to the terms of his criminal nonsupport orders.
Third Assignment of Error: The trial court plainly erred in ordering appellant to pay $2,532.30 in “extradition fees” after finding him indigent and, further, sentencing him as a misdemeanant.
Imposition of Consecutive Sentences
{11} Jones’ first two assignments of error address the trial court‘s imposition of “maximum consecutive” jail sentences within 614411 and 614412 after he violated the terms of his community control sanctions.3 In his first assignment of error, Jones contends that the trial court lacked authority to impose consecutive jail sentences in April 2019 after terminating his community control sanctions because the trial court did not “appropriately specify” that his sentences were to be imposed consecutively when he was originally sentenced in August 2018. Specifically, Jones contends that because the trial court did not make
{12} In his second assignment of error, Jones contends that the trial court‘s imposition of “maximum consecutive terms of imprisonment” for “failure to adhere strictly to the terms of his criminal nonsupport orders” after terminating his community control sanctions was “unreasonable” and an abuse of discretion because (1) “no one is protected by — or benefits from [Jones‘] extended incarceration“; (2) “it bars [Jones] from fulfilling his monetary obligations” and
Challenges to Sentences Imposed in 614411
{13} As an initial matter, we note that Jones’ first and second assignments of error are moot as to 614411. In these assignments of error, Jones challenges only the length of his sentences. In 614411, Jones was sentenced to an aggregate 12-month jail term with 104 days of jail-time credit. There is no indication in the record that this sentence was stayed pending appeal. Accordingly, Jones has already served this sentence, and his assigned errors challenging his sentences in 614411 are, therefore, moot.4 See, e.g., State v. Jones, 8th Dist. Cuyahoga No. 107277, 2019-Ohio-1126, ¶ 2, 13 (“If an individual has already served his sentence, there is no
Challenges to Sentences Imposed in 614412
{14} Turning to Jones’ challenges to the sentences imposed in 614412, this court generally reviews misdemeanor sentences for an abuse of discretion. See, e.g., Lakewood v. Bretzfelder, 8th Dist. Cuyahoga No. 98925, 2013-Ohio-4477, ¶ 35; see also S. Euclid v. Bickerstaff, 8th Dist. Cuyahoga No. 107526, 2019-Ohio-2223, ¶ 11 (“When a misdemeanor sentence is not contrary to law, the sentence is reviewed for an abuse of discretion.“). We likewise review a trial court‘s decision in a community control violation proceeding for abuse of discretion. See, e.g., Oglesby at ¶ 7; State v. Huckaby, 6th Dist. Wood No. WD-14-028, 2015-Ohio-3302, ¶ 14. A trial court abuses its discretion where its decision is unreasonable, arbitrary or
{15} Misdemeanor community control sanctions are governed by
{16} If a defendant violates a term or condition of a community control sanction imposed for a misdemeanor,
(a) A longer time under the same community control sanction if the total time under all of the community control sanctions imposed on the violator does not exceed the five-year limit specified in division (A)(2) of this section;
(b) A more restrictive community control sanction;
(c) A combination of community control sanctions, including a jail term.
{17} In this case, the trial court did not sentence Jones directly to community control sanctions. The trial court chose the second option under
{18}
A jail term or sentence of imprisonment for a misdemeanor shall be served consecutively to any other prison term, jail term, or sentence of imprisonment when the trial court specifies that it is to be served consecutively or when it is imposed for a misdemeanor violation of section 2907.322, 2921.34, or 2923.131 of the Revised Code.
When consecutive sentences are imposed for misdemeanor[s] under this division, the term to be served is the aggregate of the consecutive terms imposed, except that the aggregate term to be served shall not exceed eighteen months.
{19}
{20} In this case, when the trial court originally sentenced Jones in 614412, it sentenced him to six months in jail on each count. Although the trial court did not use the term “consecutive” sentences, it is clear from the trial court‘s August 14, 2018 sentencing journal entry — imposing an aggregate jail sentence “for a term of 24 month(s)” — that consecutive sentences were originally “specified” as to the four counts in 614412. The trial court likewise “specified,” when sentencing Jones in April 2019, that the sentences on the four counts in 614412 were to be served consecutively. At the April 9, 2019 hearing, the trial court expressly stated: “Case 614412, you pled guilty to misdemeanors in Counts 1, 2, 3 and 4, six months on Count 1, six months on Count 2, six months on Count 3, six months on Count 4,
{21} Although the trial court was not required to make
{22} At oral argument, the state conceded that the trial court‘s April 15, 2019 sentencing journal entry requires “clarification” but claimed that the error
{23} Based on the record before us and considering all of the relevant facts and circumstances, we believe the proper remedy is to vacate the consecutive sentences imposed in 614412 and remand for resentencing in that case.
{24} As they relate to 614411, Jones’ first and second assignments of error are moot. As it relates to 614412, Jones’ first assignment of error is sustained in part and overruled in part; based on our resolution of Jones’ first assignment of error, his second assignment of error is also moot as to 614412.
{25} In his third assignment of error, Jones contends that the trial court committed plain error in ordering him to pay $2,532.30 in extradition costs associated with extraditing him from Las Vegas to Cuyahoga County, Ohio after he violated community control sanctions. Jones argues that the trial court lacked authority to order him to pay these extradition costs because (1) the trial court was required to impose any misdemeanor “financial sanctions” at the time of his original sentencing in August 2018; (2) Jones is indigent and (3) extradition costs can only be imposed on nonindigent felons under
{26}
In addition to imposing court costs pursuant to section 2947.23 of the Revised Code, the court imposing a sentence upon an offender for a misdemeanor * * * to any financial sanction or combination of financial sanctions authorized under this section. If the court in its discretion imposes one or more financial sanctions, the financial sanctions that may be imposed pursuant to this section include, but are not limited to, the following:
- Unless the misdemeanor offense is a minor misdemeanor or could be disposed of by the traffic violations bureau serving the court under Traffic Rule 13, restitution by the offender to the victim of the offender‘s crime or any survivor of the victim, in an amount based on the victim‘s economic loss. * * *
- A fine of the type described in divisions (A)(2)(a) and (b) of this section payable to the appropriate entity as required by law:
- A fine [limited in amount based on the degree of the offense] * * *.
- A state fine or cost as defined in section 2949.111 of the Revised Code.
- Reimbursement by the offender of any or all of the costs of sanctions incurred by the government, including, but not limited to, the following:
- All or part of the costs of implementing any community control sanction * * *;
- All or part of the costs of confinement in a jail or other residential facility * * *
- All or part of the cost of purchasing and using an immobilizing or disabling device * * *.
{27} The state asserts that the trial court properly ordered Jones to pay the extradition costs, not as a “financial sanction” under
{28}
In all criminal cases, including violations of ordinances, the judge or magistrate shall include in the sentence the costs of prosecution, including any costs under section 2947.231 of the Revised Code, and render a judgment against the defendant for such costs.
{29} Thus, under
{30} The phrase “costs of prosecution,” as used in
{31} The term “costs” has been defined as “‘the statutory fees to which officers, witnesses, jurors, and others are entitled for their services in an action or prosecution, and which the statutes authorize to be taxed and included in the judgment or sentence.‘” Middleburg Hts. at ¶ 8, quoting State ex rel. Franklin Cty. Commrs. v. Guilbert, 77 Ohio St. 333, 338, 83 N.E. 80 (1907); see also
{32} Although extradition costs are no doubt a necessary expense in prosecuting a case against a criminal offender who has left (and fails to return to) the jurisdiction, the state has not identified any “specific statutory authorization” for the taxing of Jones’ “extradition fees” as costs in this case. See State v. Perz, 6th Dist. Lucas No. L-07-1330, 2008-Ohio-2383, ¶ 13-18 (trial court erred in imposing costs of special prosecutor in the “costs of prosecution” where there was no “specific statute” providing that such costs could be charged to the defendant).
Upon conviction of a non-indigent person for a felony, the clerk of the court of common pleas shall make and certify under the clerk‘s hand and seal of the court, a complete itemized bill of the costs made in such prosecution, including the sum paid by the board of county commissioners, certified by the county auditor, for the arrest and return of the person on the requisition of the governor, or on the request of the governor to the president of the United States, or on the return of the fugitive by a designated agent pursuant to a waiver of extradition except in cases of parole violation. The clerk shall attempt to collect the cost from the person convicted.
{33} By its terms,
{34} Further, even if
{35} Accordingly, we sustain Jones’ third assignment of error. We vacate the trial court‘s orders in 614411 and 614412 requiring Jones to pay $2,532.30 in extradition costs.
Conclusion
{36} Because Jones has already served his sentences in 614411, his challenges to the length of his sentences in that case are moot. In 614412, we vacate Jones’ consecutive sentences and remand for resentencing. On remand in 614412, if the trial court, in its discretion, determines that consecutive sentences should be imposed, it should comply with
{37} Judgment affirmed in part; vacated in part; remanded.
It is ordered that appellant recover from appellee 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 Cuyahoga County Court of Common Pleas to carry out this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
PATRICIA A. BLACKMON, J., CONCUR