State v. MillsState v. Mills
Rendered on December 1, 2009
Ron O‘Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellee.
Yeura R. Venters, Public Defender, and Allen V. Adair, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
SADLER, J.
{¶1} Defendant-appellant, Brian K. Mills, II (“appellant“), appeals the judgment entry of sentence from the Franklin County Court of Common Pleas, asserting that the trial court improperly calculated his jail-time credit when imposing his sentence. For the following reasons, we find that the record regarding jail-time credit is unclear, and
{¶2} On April 9, 2007, appellant entered a guilty plea to the stipulated lesser included offense of attempted carrying a conсealed weapon, a violation of
{¶3} On October 23, 2008, appellant was arrested on charges of having weapons while under a disability and obstructing official business in Hamilton County. A holder was issued in this matter that sаme day by the Franklin County Probation Department, and a resentencing hearing was held pursuant to
{¶4} The trial court revoked appellant‘s community control. However, the court did not impose the 11-month sentence the court had notified appеllant of during the original sentencing hearing. Instead, the court imposed a six-month determinate sentence to be served at the ODRC and ordered appellant to pay $517 in court costs аnd a $250 fine. Appellant was given ten days of jail-time credit.
{¶5} Appellant filed a timely notice of appeal and raised the following assignment of error:
The trial court erroneously dеnied appellant jail-time credit for time spent in custody after a holder was placed against him for alleged violations of the terms of his community control.
{¶6} By his assignment of error, aрpellant contends that the trial court erred in giving him only ten days of jail-time credit when a holder was placed on October 23, 2008 and he had spent 105 days in jail at the time of the resentencing hearing. He argues that, pursuant to State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, he should be awarded additional jail-time credit.
{¶7}
{¶8} As stated in Fugate, the practice of awarding jail-time credit has its roots in the Equal Protection Clauses of the Ohio and United Stаtes Constitutions. Failure to credit the prisoner who languishes in jail awaiting adjudication violates principles of equal protection because it would strongly favor the non-indigent prisonеr who is capable of posting bail. See State v. Sparks (1990), 69 Ohio App.3d 400, 402.
{¶9} In Fugate, the defendant was convicted of receiving stolen property and placed on community control. He was subsequently charged with burglary and theft, and the probation department requested revocation of community control. At the revocation hearing, the defendant admitted that his new convictions violated the terms оf his community control. The probation officer informed the court that the defendant had 213 days of jail-time credit on the burglary and theft charges, and the prosecutor proposed that the credit be applied only to the sentence for violation of community control. Defense counsel did not object, and the trial court imposed a prison term for the community-control violation and awarded 213 days of jail-time credit. The court stated that the sentence was to be served concurrently with the sentences to be imposed for the burglary and thеft convictions in the new case.
{¶10} The trial court then imposed a concurrent two-year prison term for the burglary conviction. Appellant received no jail-time credit, and defеnse counsel did not object. At a later resentencing, held because the court failed to impose sentence on the theft conviction, the court imposed a six-month prison term to run concurrently with the
{¶11} We find Fugate to be distinguishable from the facts of this case. Fugate involved applying jail-time credit to concurrent prison terms. However, in this case, appellant was arrested on charges in Hamilton County and was being held on a holder issued by the Franklin County Probation Department. Our record does not demonstrate how the Hamilton County charges were resolved, but at the time of sentencing on the probation violation in this case, appellant wаs not facing concurrent sentences.
{¶12} According to appellant, he was in jail for 105 days on a holder issued by the Franklin County Probation Department prior to his resentencing. The state has not objected to this representation. This court has recognized that “days served following arrest on a probation violation can only be credited toward the sentence on the original charge--i.e., the one for which he was sentenced to probation.” State v. Chafin, 10th Dist. No. 06AP-1108, 2007-Ohio-1840, ¶9. When an offender violates probation and may not be permitted to be released on bail, that time between the arrest and the hearing on the probation violation can only be credited against the sentence imposed for the probation violation. Id.
{¶13} A trial court‘s failurе to properly calculate a felony offender‘s jail-time credit, pursuant to
{¶14} In this case, the transcript of the resentencing hearing indicates that the trial court may have intended to recognize appellant‘s jail-time credit by reducing the 11-month sentence announced at the original sentencing hearing to the six-month sentence imposed at the resentencing hearing. The trial court stated, as follows:
THE COURT: Well, you got the -- I don‘t know what Hamilton County is gonna do, but there‘s no way I can put you on community control. The judge there may sentence you to prison and they won‘t give you, you know what I mean? That just won‘t work. I‘m going to modify sentence to six months. I‘m just going tо give him ten days because I‘m taking it from 12 [sic] months to six months, and the Judge there will run you concurrent or I don‘t know what they will do, but you got another weapons case and, you know, you really shouldn‘t have. I mean, weapons just get you in trouble. Get you a lot more time than carrying a concealed weapon unless you shoot somebody.
(Feb. 4, 2009, Tr. 4-5.)
{¶15} However, the entry merely provides that appellant received a six-month sentence, although the court made it clear in the entry that this sentence had been modified from the original 11 months. The court also awarded ten days of jail-time credit. Although it may have been the court‘s intention to have the 105 days of jail-time credit reflected in the shorter sentence imposed, the entry fails to specifically state this intentiоn, and the record otherwise fails to adequately account for the 105 days. Thus, we are remanding the matter for the trial court to clarify the application of jail-time credit in order to ensure that appellant receives the full amount of jail-time credit to which he is entitled.
{¶16} For the reasons set forth in this decision, we sustain appellant‘s assignment of error, and remаnd this matter to the Franklin County Court of Common Pleas with instructions to make a factual determination regarding the calculation and application of jail-time credit in this case, and to issue a sentencing entry that properly reflects that calculation and application.
Judgment reversed; cause remanded with instructions.
FRENCH, P.J., and BROWN, J., concur.
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