State of Ohio v. Gerry L. Moore, Sr. aka Gary L. Moore, Sr.
Court of Appeals No. E-16-030
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
February 24, 2017
2017-Ohio-673
Trial Court No. 2015-CR-285
DECISION AND JUDGMENT
Decided: February 24, 2017
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Kevin J. Baxter, Erie County Prosecuting Attorney, and Mary Ann Barylski, Chief Assistant Prosecutor, for appellee.
Terry H. Gilbert and Jacqueline C. Greene, for appellant.
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SINGER, J.
{1} Appellant, Gerry L. Moore, Sr., appeals the April 15, 2015 judgment of the Erie County Court of Common Pleas convicting him of felonious assault with a firearm specification, kidnapping with a firearm specification, failure to comply with the order or signal of police and inducing panic. Finding error on record, we reverse.
{2} Appellant sets forth the following assignment of error:
The trial court erred when it refused to apply Appellant‘s jail time credit to his sentences of one and three years of mandatory, actual incarceration for the firearm specifications.
Background Facts
{3} On July 16, 2015, an indictment was filed charging appellant with ten felony counts. On August 12, 2015, the indictment was amended to include two additional felony counts.
{4} On April 14, 2016, appellant pled guilty to felonious assault (Count 2) in violation of
{5} The trial court‘s April 14, 2016 judgment entry of appellant‘s plea agreement states as follows:
Count 8 Failure to comply, the parties agree and this court finds defendant was fleeing immediately after the commission of a felony which requires consecutive sentence, consecutive to any mandatory term of imprisonment. Defendant and the State agree with this Court finding that
the gun specifications of three years and one year do not merge and are to be served consecutively for a four year term. Defendant agrees to the imposition of and (sic) eight year eleven month sentence. Defendant agrees that the sentence shall be imposed and be imposed to run consecutive as follows * * * Defendant is eligible for judicial release in 4-1/2 years. Providing defendant does not commit medium/major infractions and the overall prison report is positive, the State and the victim will remain mute as to judicial [release].
{6} After accepting the plea, the court found appellant guilty and proceeded to impose sentence. Appellant was sentenced to three-years incarceration for the felonious assault, three years for the kidnapping, one year for the failure to comply, and eleven months for the inducing panic. The accompanying firearm specifications carried an additional four years of incarceration (three and one-year terms), which were imposed as mandatory. The remaining counts were dismissed.
{7} The court ordered the mandatory terms for the firearm specifications to be served consecutively to each other, and prior to and consecutively to the other counts. The sentences imposed for kidnapping and inducing panic were ordered to be served consecutively to each other. The sentence imposed for felonious assault was ordered to be served concurrently to the sentence for kidnapping and inducing panic, and the
{8} Appellant‘s total sentence was stated as “eight (8) years, eleven (11) months.” The trial court noted on record appellant was to receive 283 days credit for the time served as of April 16, 2016. Prior to his plea, appellant moved the trial court to consider applying his confinement credit to the four-year, mandatory sentence imposed for the firearm specifications. However, the court denied the motion and sentenced appellant accordingly.
{9} The court journalized its judgment on April 15, 2016. Appellant notified of his intent to appeal on May 11, 2016, and now timely appeals.
Standard of Review
{10} We review felony sentences under a two-prong approach.
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant; or (b) That the sentence is otherwise contrary to law.
{11} In the sole assignment of error, appellant disputes his sentence arguing the court incorrectly denied his confinement credit from applying to his mandatory, one and three-year prison terms for firearm specifications. Appellee contends the plain language of
{12}
{13} Moreover,
{14} In State v. Furrie, the court reluctantly applied the plain language of
{15} In addressing the issue, the Furrie court stated, “[w]e are tempted to distinguish jail time credit from the other forms of sentence reduction listed in the statute and conclude that credit for time served is simply that - credit.” Id. at ¶ 12. Nevertheless,
{16}
{17} Such credit to be received by the offender is “credit for dead time.” See State v. Webb, 2d Dist. Montgomery No. 17676, 2000 Ohio App. LEXIS 210, *14 (Jan. 28, 2000).
{18} Granting credit for dead time is mandatory under the equal protection clause, which requires that all time spent in any jail prior to trial and commitment must be credited to an offender‘s sentence. State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440; Mallory v. State, 31 Ohio Misc. 113, 281 N.E.2d 860 (C.P.1972); White v. Gilligan, 351 F. Supp. 1012 (S.D.Ohio 1972); Workman v. Cardwell, 338 F.Supp. 893, 901 (N.D.Ohio 1972); Williams v. Ill., 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970).
{19} For example, in State v. Reichelderfer, the court reversed a judgment which ordered a defendant to no credit for his dead time. State v. Reichelderfer, 2d Dist. Montgomery No. 17445, 1999 Ohio App. LEXIS 1905, *8 (Apr. 30, 1999). In doing so, the Reichelderfer court addressed the constitutionality of
{20} The Reichelderfer court found that although the plain language of then
{21} Consistent with Reichelderfer, the General Assembly thereafter amended
Applying Exception for
{22}
{23} To not violate equal protection, we find our court is required to ensure credit is fully given for all offenders’ dead time, which is not to be reduced within a trial court‘s order, but is to be applied by the Department of Rehabilitation and Correction.
{24} In this determination, we also rely on the rationale of Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440. The Fugate court reversed and applied dead
{25} In specific, the Fugate court stated that the overall objective of the directives for which dead time is to be calculated is: “to comply with the requirements of equal protection by reducing the total time that offenders spend in prison after sentencing by an amount equal to the time that they were previously held.” Id. at ¶ 11.
{26} Based on our view, Fugate supports the proposition that giving full credit to an offender may require applying dead time to a mandatory term when otherwise the potential length of the stated prison sentence is not accurately reflective of the time the offender‘s liberty was restrained. See id. at ¶ 22 (“To deny such credit would constitute a violation of the Equal Protection Clause.“).
{27} Here, the record supports that if appellant is successful in seeking judicial release, there is risk the application of
{28} Accordingly, appellant‘s sole assignment of error is well-taken.
Conclusion
{29} The judgment of the Erie County Court of Common Pleas is reversed and remanded for further proceedings consistent with this decision. The trial court is ordered
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to
Arlene Singer, J.
Thomas J. Osowik, J. CONCUR.
JUDGE
JUDGE
James D. Jensen, P.J., DISSENTS.
JENSEN, P.J.
{30} I respectfully dissent from the majority decision for two reasons.
{31} First, the plain language of
{32} Second, while the majority decision is premised on the conclusion that equal protection may be violated where confinement credit is not applied to a mandatory term of incarceration imposed for a firearms specification, Moore did not raise a constitutional challenge on appeal. I express no opinion as to the validity of the conclusion reached by my colleagues, but I believe it imprudent to pass upon the constitutionality of a statute where the appellant has asserted no constitutional challenge.
{33} Accordingly, I would affirm the trial court judgment.