State v. PainterState v. Painter
Criminal Appeal from the Court of Common Pleas, Case No. 2000 CR 78.
Judgment: Reversed and remanded.
Thomas L. Sartini, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047-1092 (For Plaintiff-Appellee).
Michael A. Partlow, Morganstern, MacAdams & DeVito Co., L.P.A., 623 West St. Clair Avenue, N.W., Cleveland, OH 44113-1204 (For Defendant-Appellant).
Grant Painter, pro se, PID: 562-370, Lake Erie Correctional Institution, P.O. Box 8000, Conneaut, OH 44030-8000 (Defendant-Appellant).
MARY JANE TRAPP, P.J.
{¶1} Mr. Grant Painter appeals from the Ashtabula County Court of Common Pleas judgment, which sentenced Mr. Painter to two one-year terms of incarceration to be served concurrently for failure to pay child support.
{¶2} While Mr. Painter does not contest the terms of his sentence, he argues the trial court erred by refusing to credit jail time he served in Kentucky while awaiting
{¶3} We detеrmine Mr. Painter’s argument has merit insofar as the trial court failed to disclose any basis for its decision regarding the jail time credit or its calculation. No facts surrounding or evidence of his Kentucky jail time, which all acknowledge was served, is in the record. We do not, however, find that the error occurrеd as a result of the ineffective assistance of Mr. Painter’s counsel.
{¶4} Thus, we reverse and remand the matter to the trial court for a calculation of jail time credit and factual findings regarding the calculations.
Substantive and Procedural Facts
{¶5} This case began on May 3, 2000, when Mr. Painter was indicted on two counts of nonsupport оf dependents, one count for each child, in violation of
{¶6} Years later, Mr. Painter was dеtained by the Kentucky authorities on the capias and eventually transported from Hartford, Kentucky to Ohio on October 3, 2008. While awaiting trial, his notice of withdrawal of motion for bond was granted, and he remained incarcerated until the time of his sentencing. The court accepted Mr. Painter’s
{¶7} “*** I think initially Mr. Painter was being held without bond, and under the circumstances, I think I’ll just leave it that way pending the completion of a Presentence Rеport. We’ll ask the Probation Department to get on that as quickly as they can, and as soon as that’s done, then Mr. Cordova will be notified and we’ll be back here for the purpose of sentencing.”
{¶8} Mr. Painter’s sentencing hearing followed approximately two months later. The court found that he was not amenable to community control, sentenced him to serve a one-year term on each count, concurrently, and notified him that he may be subject to a period of post-release control for up to three years. He was given jail credit of 135 days for the time he was incarсerated in Ohio awaiting the resolution of this case.
{¶9} It would appear that the court reviewed the presentence investigation report, as the court spoke of it on the record without going into any specific detail; however, a report is not included in the record, nor did the cоurt mention the report in the sentencing entry.
{¶10} The only mention of the Kentucky jail time credit was at the sentencing hearing, when Mr. Painter’s counsel raised the issue with the court and asked the court to credit the time Mr. Painter was incarcerated in Kentucky while awaiting extradition to Ohio.
{¶11} Mr. Painter’s counsel noted that: “He has now spent a total of 226 days in jail on this matter, 135 of those days here in the county. 91 of those days he spent in the state of Kentucky at different times when Kentucky picked him up on the warrant, on
{¶12} “At this last time, when he was picked up on the warrant, he was held there for several days when the judge there said Ohio’s probably not coming to get you again; issued him a bond. He posted bond, and, then, after the bond was issued and he left the jail, county jail down there, word was that the state -- that Ashtabula County was on their way. He was notified by the court. He returned to jail and awaited, you know pickup.”
{¶13} The state made no comment on the issue of the Kentucky jail time in its sentencing recommendation. The court in calculating jail time credit did nоt appear to even consider the time spent in Kentucky for this case:
{¶14} “*** The time you’re talking about that your attorney’s raised that you’ve spent in custody previously, I’m not too sure you’re entitled to any credit that you served outside the jurisdiction awaiting extradition; but aside from that, I don’t have any verification.
{¶15} “The Presentence Report shows 135 days as of today’s date, so I’ll give you credit for that, but I don’t have any verification of any other time that you spent in jail in connection with this case.”
{¶16} The sentencing judgment entry is also silent as to the jail time served in Kentucky, stating only that “[t]he Court further finds that the Defendаnt has previously served time in a prison for a criminal offense.” And, that “[c]redit is granted for one
{¶17} Following his sentencing hearing, Mr. Painter, pro se, filed a motion for jail time credit when he realized, at the time he was taken to the correctional facility, that he had not received the 911 days of credit for the time he served in Kentucky.
{¶18} On March 2, 2009, the court denied his motion, finding that “the original jail time credit given in the sentencing entry is correct based on the information that was available to the court.” The court further directed Mr. Painter that any claimеd errors in sentencing should be asserted by way of direct appeal from his conviction and sentence.
{¶19} Accordingly, Mr. Painter timely appealed, raising the following assignments of error:
{¶20} “[1.] The trial court erred, as a matter of law, by refusing to give the appellant credit for time served in jail in the state of Kentucky awaiting pick up by the Ashtabula County Sheriff’s Department.
{¶21} “[2.] Appellant received ineffective assistance of trial counsel, in violation of the appellant’s federal and Ohio Constitutional Rights, to wit the Sixth Amendment to the United States Constitution and Section 10, Article I of the Constitution of the state of Ohio.”
Reduction of Prison Term for Time Served
{¶22} In his first assignment of error, Mr. Painter contends the court erred in failing to credit him for jail time served while he awaited extradition from Kentucky to
{¶23} “The power to determine the amount of jail credit an offender shall receive is generally within the purview of the trial court.” State v. Ashley, 11th Dist. No. 2006-L-134, 2007-Ohio-690, ¶32, citing State v. Struble, 11th Dist. No. 2005-L-115, 2006-Ohio-3417, ¶9. “The trial court’s calculation may only be reversed for plain error. Id. Under the plain terms of
{¶24} Pursuant to
{¶25} There is no basis that can be gleaned from the record for the trial court’s failure to credit Mr. Painter for the 90 days he served awaiting extradition in this case. The state did not object to his assertion. Notably absent from the record is the presentence investigation report that was allegedly reviewed by all the parties. In addition, the court was silent at the sentencing hearing and in its sentencing as to this
{¶26} During the sentencing hearing the court clearly did not consider the time Mr. Painter spent incarcerated in Kentucky awaiting extradition, remarking: “*** The time you’rе talking about that your attorney’s raised that you’ve spent in custody previously, I’m not too sure you’re entitled to any credit that you served outside the jurisdiction awaiting extradition; but aside from that, I don’t have any verification.
{¶27} “The Presentence Report shows 135 days as of today’s date, so I’ll give you credit for that, but I don’t have any verification of any other time that you spent in jail in connection with this case.”
{¶28} It appears to be well-settled that credit is to be given for time spent awaiting extradition on the subject offense. The Second Appellate District explained when credit for served jail timе while awaiting extradition is given in State v. Nunez, 2d Dist. No. 21495, 2007-Ohio-1054, stating: “*** even though credit for time served while awaiting extradition is not listed in the statute, it does not preclude a defendant from receiving credit for that time served as long as the reason for the confinement arose out of the offense for which the prisoner was cоnvicted and sentenced.” Id. at ¶19, quoting State v. Neville, 2d Dist. No. 03 BE 68, 2004-Ohio-6840, see, also, State v. Walker (May 1, 1998), 2d Dist. No. 16599, 1998 Ohio App. LEXIS 1916 (“remanding matter to trial court for determination of the number of days defendant was confined in Montana pursuant to an Ohio detainer, since Defendant ‘had an unquestioned legal right to challenge his extradition***.’”)
{¶30} “By invoking his
{¶31} Accordingly, “[w]hen the record before an appellate court fails to disclose any basis for a trial court’s decision regarding jail time credit, the remedy is to remand the matter to the trial court, for a cаlculation of jail time, and factual findings regarding that calculation.” (Emphasis added.) State v. Navedo, 11th Dist. No. 2007-L-094, 2008-Ohio-2324, ¶24, citing State v. Sodders (Aug. 6, 1999), 2d Dist. No. 98 CA 35, 1999 Ohio App. LEXIS 3634, 1-2, accord, State v. Newport, 2d Dist. No. 2006 CA 49, 2007-Ohio-1678, ¶7. As the record fails to disclose any basis for the trial court’s denial of 90 days of jail time credit to Mr. Painter, we must reverse and remand for a calculation of jail time credit and factual findings regarding the сalculations. Id.
{¶32} Mr. Painter’s first assignment of error is with merit.
Ineffective Assistance of Counsel
{¶34} “‘[W]hen a convicted defendant complains оf the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.’ *** The [Supreme Court of Ohio] recognized that there are ‘(***) countless ways to provide effective assistance in any given сase.’” State v. Sands, 11th Dist. No. 2007-L-003, 2008-Ohio-6981, ¶35, quoting State v. Vinson, Jr., 11th Dist. No. 2006-L-238, 2007-Ohio-5199, ¶29, citing State v. Allen (Sept. 22, 2000), 11th Dist. No. 99-A-0050, 2000 Ohio App. LEXIS 4356, 10, citing State v. Bradley (1989), 42 Ohio St.3d 136, 142, quoting Strickland v. Washington (1984), 466 U.S. 668, 687-689. “‘Therefore, the court stated judicial scrutiny of counsel’s performance must be highly deferential. (***).’” Id.
{¶35} “‘In addition, “because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. (***).” Id. Counsel’s performance will not be deemed ineffective unless and until counsel’s performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel’s performance.’ Id. (Parallel citations omitted.) Thus, ‘[t]o warrant reversal, “the defendant must show that there is a reasonable probability that, but for
{¶36} Quite simply, Mr. Painter’s counsel did not act ineffectively or fall below an objective standard of reasonableness. In fact, during the sentencing hearing, he appropriately raised the issue of the court’s failure to credit Mr. Painter’s time spent incarcerated in Kentucky. It was at this point that the burden shifted to the state and the trial court to investigate the factual nature of Mr. Painter’s claims.
{¶37} As both Mr. Painter and the state concede, Mr. Painter’s trial counsel was not deficient in this regard. It is clear no ineffective assistance of counsel claim has been established in this case. Indeed, we do not even reach the first prong of the Strickland test as no deficiency on the part of counsel has even been alleged.
{¶38} It bears repeating that “[b]y invoking his
{¶39} Mr. Painter’s second assignment of error is without merit.
{¶40} The judgment of the Ashtabula County Court of Common Pleas is reversed and remanded for a determination of the time Mr. Painter served in jail
CYNTHIA WESTCOTT RICE, J., concurs,
COLLEEN MARY O’TOOLE, J., concurs in judgment only.