State v. McDonaldState v. McDonald
Jeffrey L. Adams, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
O P I N I O N.
{¶1} Defendant-appellant Deron McDonald appeals the trial court‘s judgments, convicting him of possession of heroin in the case numbered B-1301298 and possession of cocaine in the case numbered B-1401180. McDonald also appeals the trial court‘s judgments, revoking his community control and imposing concurrent ten-month prison sentences in the cases numbered B-0609239 and B-080724.
{¶2} McDonald has not raised any assignments of error challenging his convictions in the cases numbered B-1301298 and B-1401198, so we treat his appeals in those cases, numbered C-140303 and C-140304 respectively, as having been abandoned and we dismiss them. See State v. Thomas, 1st Dist. Hamilton Nos. C-100411 and C-100412, 2011-Ohio-1331, ¶ 4, citing State v. Benson, 152 Ohio App.3d 495, 2003-Ohio-1944, 788 N.E.2d 693, ¶ 8 (1st Dist.).
{¶3} In the case numbered B-080724, McDonald argues that his sentence is contrary to law because the trial court failed to award him any jail-time credit. In the case numbered B-0609239, McDonald argues that the trial court erred in sentencing him for cocaine possession as a fourth-degree felony, because he is entitled to the reduced penalty of a fifth-degree felony. We find both arguments meritorious.
{¶4} Under the Ohio Supreme Court‘s opinion in State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, because the trial court had credited McDonald with 158 days of jail-time credit in the case numbered B-0609239, he was entitled to the same number of days of jail-time credit in the case numbered B-080724, since the trial court had ordered the sentences in the two cases to be served concurrently. Further, because McDonald‘s prison sentence for his community-control violation was not imposed until after the effective date of Am.Sub.H.B. 86, he was
Factual and Procedural Posture
{¶5} On April 16, 2008, McDonald was convicted in the case numbered B-0609239 of possession of cocaine, a fourth-degree felony. The trial court sentenced him to community control for three years, which included a condition of 75 days’ confinement in the Hamilton County Justice Center, credited him with 75 days, and imposed a one-year driver‘s license suspension. That same day, McDоnald was convicted in the case numbered B-080724 of possession of cocaine, a fourth-degree felony. The trial court sentenced him to community control for three years, which included a condition of 75 days’ confinement in the Hamilton County Justice Center, credited him with 75 days, and imposed a one-year driver‘s license suspension.
{¶6} On March 11, 2013, while McDonald was still on community control in the cases numberеd B-0609239 and B-080724, he was indicted in the case numbered B-1301298 for possession of heroin and possession of cocaine, both fifth-degree felonies. McDonald was released on bond.
{¶7} McDonald‘s indictment in the case numbered B-1301298 caused the probation department to file a complaint on March 21, 2013, charging him with violating the conditions of his community control in the cases numbered B-0609239 and B-080724. That same day, the trial cоurt issued warrants for his arrest.
{¶8} The following day, when McDonald failed to appear for arraignment in the case numbered B-1301298, the trial court ordered his bond forfeited and issued a capias for his arrest. McDonald was arrested on March 8, 2014, and confined in the Hamilton County Justice Center on all three cases.
{¶10} On April 18, 2014, McDonald‘s counsel informed the trial court that McDonald and the state had reached plea agreements in the cases numbered B-1301298 and B-1401180. In the case numbered B-1301298, McDonald agreed to plead guilty to one count of possession of heroin, a fifth-degree felony, in exchange for thе state‘s dismissal of the cocaine-possession charge. In the case numbered B-1401180, McDonald agreed to plead guilty to one count of possession of cocaine, a fifth-degree felony, in exchange for the state‘s dismissal of the trafficking charge. Following a thorough
{¶11} The trial court then addressed the community-control violations in the cases numbered B-0609239 and B-080724. McDonald waived a probable-cause hearing in both cases, and pleaded no contest to violating the terms and conditions of his community control. The trial court found him guilty. It ordered a presentence investigation report, and deferred sentencing to a later date.
{¶12} On May 14, 2014, the trial court held a sentencing hearing on all four cases. The trial court terminated McDonald‘s community control and imposed sentences of ten months in prison in the cases numbered B-0609239 and B-080724, to be served concurrently. The trial court imposed sentences of 12 months in prison in the cases numbered B-1301298 and B-1401198, to be served consecutively. The trial court ordered the concurrent ten-month prison sentences in the cases numbered B-0609239 and B-080724 to be served consecutively to the 12-month prison sentences imposed in the cases numbered B-1301298 and B-1401180, for an аggregate sentence of 34 months’
Jail-Time Credit
{¶13} In his first assignment of error, McDonald argues that his sentence in the case numbered B-080724, appeal numbered C-140305, is contrary to law because the trial court awarded him no jail-time credit. McDonald, however, did not object to the trial court‘s jail-time-credit award at the time of his sentencing hearing. As a result, he has waived all but plain error for purposes of appeal. See State v. Hargrove, 1st Dist. Hamilton No. C-120321, 2013-Ohio-1860, ¶ 9.
{¶14}
{¶15} The trial court is required to include the amount of pretrial-confinement credit, commonly referred to as jail-time credit, in the sentencing entry. See State v. Morgan, 1st Dist. Hamilton No. C-140146, 2014-Ohio-5325, ¶ 5-6, citing
{¶17} In Fugate, the defendant was charged with burglary and theft while he was on community control for a prior conviction for receiving stolen property. Id. at ¶ 2. As a result of his indictment, the probation department filed a motion to revoke his community control. Following a jury trial, Fugate was found guilty of theft and a lessеr charge of burglary.
{¶18} Prior to sentencing Fugate on the new charges, the trial court held a hearing on the state‘s motion to revoke his community control. Id. at ¶ 3. At the hearing, Fugate admitted that his new convictions for theft and burglary had violated the conditions of his community control. Id. The trial court imposed a 12-month prison term for the community-control violation, and granted Fugate 213 days of jail-time credit against this term. Id. at ¶ 4. Thе trial court imposed a two-year sentence for the burglary conviction and a six-month sentence for the theft conviction. Id. at ¶ 5. The trial court awarded Fugate 50 days of jail-time credit toward his theft sentence, but awarded no credit against the burglary sentence. The trial court ordered all three sentences to be served concurrently. Id. at ¶ 5.
{¶19} On appeal, Fugate argued that the trial court had violated his equal-protection rights and committed plain error by failing to apply the 213 days of jail-time credit to each of his concurrent prison sentences. Id. at ¶ 6. The Ohio Supreme Court agreed. It noted that “[t]he practice of awarding jail time credit has its roots in the Equal
{¶20} The Supreme Court then looked to
{¶21} The Supreme Court held that when a defendant is sentenced to concurrent terms, applying credit to one term only would, in effect, negate the credit for time that the offender has been held, and would сonstitute a violation of the Equal Protection Clause. Id. at ¶ 22. The Supreme Court concluded that because the record showed that Fugate had been held in custody simultaneously on each of the charges while awaiting sentencing, he was entitled to have the 213 days of jail-time credit applied to each concurrent prison term. Id. at ¶ 12 and 18.
{¶22} Here, the record reflects that McDonald was held in custody fоr 158 days in the case numbered B-0609239 and, as the state concedes, for 158 days in the case numbered B-080724, pending sentencing. Because McDonald‘s ten-month prison sentence in the case numbered B-080724 was to be served concurrently with the ten-
Am.Sub.H.B. 86 Reduction in Penalty
{¶23} In his second assignment of error, McDonald argues that the trial court erred to his prejudice “by entering a judgment in the case numbered B-0609239 that is contrary to law.” McDonald argues that because his community cоntrol was revoked and he was sentenced to prison after the effective date of Am.Sub.H.B. 86, the trial court should have reduced the degree of his cocaine-possession offense to a fifth-degree felony in accordance with
{¶24} In April 2008, McDonald was cоnvicted for possessing more than one but less than five grams of crack cocaine. At the time, possession of this quantity of crack cocaine was punishable as a fourth-degree felony. See former
{¶25} On September 30, 2011, the legislature amended Ohio‘s sentencing scheme. Am.Sub.H.B. 86 addressed the disparity between crack cocaine and powder cocaine by eliminating the different penalties for crack and powder cocaine, and including both under the definition of cocaine in
{¶26} Section 3 of Am.Sub.H.B. 86 provides that the amendments to
{¶27} In State v. Limoli, 140 Ohio St.3d 188, 2014-Ohio-3072, 16 N.E.3d 641, ¶ 1, the Ohio Supreme Court examined the effect of Am.Sub.H.B. 86 on a defendant whо was convicted of possession of crack cocaine, an offense specified in Section 3 of Am.Sub.H.B. 86, prior to its effective date, but who was not sentenced until after its effective date. The Supreme Court concluded that because Section 3 of Am.Sub.H.B. 86 specifically identified the code section for that particular offense and stated that
{¶29} In Limoli, the Ohio Supreme Court did not expressly address whether Am.Sub.H.B. 86 applies when a defendant is sentenced to prison following a community-control violation. But we believe the plain language of
{¶30} The key phrase in
{¶31} The Ohio Supreme Court has answered this question for us. In State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, ¶ 17, the Supreme Court made clear that “following a community control violation, the trial court conducts a second sentencing hearing. At this second hearing, the court sentences the offender anew and must comply with the relevant sentencing stаtutes.” Thus, because the court sentences the offender anew at the hearing on the community-control violation, the
{¶32} This logic has been followed by the Second, Fourth, Fifth, Sixth, and Tenth Appellate Districts. See State v. West, 2d Dist. Montgomery No. 24998, 2012-Ohio-4615; State v. Tolliver, 4th Dist. Athens No. 12CA36, 2013-Ohio-3681; State v. Fischer, 5th Dist. Stark No. 2012CA00031, 2013-Ohio-2081; State v. Marshall, 6th Dist. Erie No. E-12-022, 2013-Ohio-1481; State v. Nistelbeck, 10th Dist. Franklin No. 11AP-874, 2012-Ohio-1765.
{¶33} Here, McDonald‘s original sentencing entry provided that McDonald had been convicted of possession of cocaine as a fourth-degree felony, and had been sentenced to three years of community control for the cocaine possession offense as a fourth-degree felony. The sentencing entry warned McDonald that, should he violate the conditions of his community control, the court could impose a ten-month prison term for the offense. Thereafter, McDonald violated his community control four times, and his community control was restored each time.
{¶34} In each of the entries restoring his community control, the trial court stated that McDonald could be sentenced to ten months in prison if he violated the conditions of his community control. See Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, at ¶ 19. McDonald was charged with violating his community control a fifth time in March 2013. Because the trial court revoked McDonald‘s community control and sentenced him to prison in May 2014 following the amendment by Am.Sub.H.B. 86 to
Conclusion
{¶35} In sum, we dismiss as abandoned the appeals numbered C-140303 and C-140304. In the appeal numbered C-140305, we reverse McDonald‘s sentence in part in the case numbered B-080724, and we remand the cause to the trial court with instructions to enter a judgment crediting McDonald with 158 days of jail-time credit and to cause the entry to be delivered to the Ohio Department of Rehabilitation and Correction without delay. We further reverse the trial court‘s judgment in the appeal numbered C-140306, and we remand the cause in the case numbered B-0609239 with instructions for the trial court to vacate McDonald‘s fourth-degree felony conviction, to enter a conviction for a fifth-degree felony, and to sentence McDonald for a fifth-degree-felony offense. We affirm the trial court‘s judgments in all other respects.
Judgment accordingly.
DEWINE, J., concurs.
CUNNINGHAM, P.J., concurs in part and dissents in part.
CUNNINGHAM, P.J., dissenting in part.
{¶36} I dissent from the majority‘s resolution of the second assignment of error. I agree that McDonald was sentenced anew in May 2014 in the case numbered B-0609239. See Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, 821 N.E.2d 995, at ¶ 17. At that time, the trial court terminated the community control that had been imposed for the possession-of-cocaine offense, and imposed a ten-month prison term for the violation of community control. But I disagree that McDonаld was
{¶37} When sentencing McDonald for his community-control violation, the trial court was required to follow
{¶38} Thus, to determine the applicable range of prison terms, the trial court was required to look to the range available for the offense fоr which the community-control sanction was imposed. That offense, as indicated in all of McDonald‘s sentencing entries, was “possession of cocaine, a fourth-degree felony.” The range of prison terms available for that offense at the time that community control was imposed was six to 18 months. The fifth-degree-felony range that would now apply for similar criminal conduct was not available.
{¶39} Importantly,
Please note:
The court has recorded its own entry this date.