Case Information
*1
[Cite as
State v. Worley
,
STATE OF OHIO, BELMONT COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 13 BE 8 V. )
) OPINION JOHNNY J. WORLEY, )
)
DEFENDANT-APPELLANT. ) CHARACTER OF PROCEEDINGS: Criminаl Appeal from Court of Common
Pleas of Belmont County, Ohio Case No. 08CR037 JUDGMENT: Reversed and Remanded APPEARANCES:
For Plaintiff-Appellee Christopher Berhalter
Prosecutor
Helen Yonak Assistant Prosecutor 147-A West Main St.
St. Clairsville, Ohio 43950 For Defendant-Appellant Attorney Peter Galyardt
Asst. Statе Public Defender 250 East Broad Street, Suite 1400 Columbus, Ohio 43215 JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: June 2, 2014
*3
[Cite as
State v. Worley
,
DONOFRIO, J.
{¶1} Defendant-appellant Johnny J. Worley appeals his sentence entered in the Belmont County Common Pleas Court for sexual battery. On March 31, 2008, Worley waived indictment and pleaded guilty to a
bill of information containing one count of sexual battery in violation of R.C. 2907.03(A)(5), a second-degree felony, and was remanded to the county jail awaiting sentencing. Twenty-eight days later at the April 28, 2008 sentencing hearing, the trial court sentenced Worley to a seven-year term of imprisonment, noting the seriousness of the crime and the harm to the two-year-old victim, and designated Worley as a Tier III sex offender. The court made nо mention of court costs or jail- time credit. In its May 20, 2008 sentencing entry, the court again designated Worley a Tier III sex offender. The court again failed to mention jail-time credit, but this time did assess court costs of $331. On August 2, 2013, this court granted Worley’s motion for delayed
appeal and later appointed him appellate counsel. Worley raises four assignments of error. Worley’s first assignment of
error states:
The trial court violated Johnny Worley’s constitutional right to be free from retroactive laws. Section 28, Article II, Ohio Constitution. Sentencing Tr. 5-7; May 20, 2008 Nunc Pro Tunc Journal Entry. As indicated, the trial court designated Worley as a Tier III sex offender.
This would have been done pursuant to the current versiоn of R.C. Chapter 2950,
2007 Am.Sub.S.B. No. 10 (S.B. 10), Ohio’s version of the federal Adam Walsh Act.
Worley cites to the Ohio Supreme Court’s decision in State v. Williams ,
unconstitutionally retroactive when it was applied to an offender who committed a sex
crime about one month prior to the enactment date of S.B. 10. Williams, 129 Ohio
St.3d 344,
1, 2008 enactment date of Senate Bill 10. Accordingly, Senate Bill 10 cannot retroactively be applied to him. At the time of the commission of the sex crime Senate Bill 5, Megan’s Law, was applicable. Accordingly, Worley must be classified under Senate Bill 5, not Sеnate Bill 10. Accordingly, Worley’s first assignment of error has merit. Worley’s second assignment of error states:
The trial court violated Johnny Worley’s constitutional right to equal prоtection when it did not grant him 28 days of jail-time credit. Fourteenth Amendment, United States Constitution; Section 16, Article *5 I, Ohio Constitution. Plea Hearing Tr. 9; Sentencing Tr. 1-9; May 20, 2008 Nunc Pro Tunc Journal Entry.
{¶11} Worley argues that the trial court did not give him jail-time credit for the 28 days he served in jail between the time he pleaded guilty and the time he was sentenced. In response, the state agrees, characterizing it as an oversight on the part of the sentencing court. A defendant is entitled by law to have credited to his sentence of
incarceration the number of days that he was confined prior to conviction and
sentence. R.C. 2949.08(C)(1). The Ohio Supreme Court has also held that “it is the
trial court that makes the fаctual determination as to the number of days of
confinement that a defendant is entitled to have credited toward his sentence.” State
ex rel. Rankin v. Ohio Adult Parole Auth. , 98 Ohio St.3d 476,
credit for the 28 days he served in jail between his conviction and sentence. Accordingly, Worley’s second assignment of error has merit. Worley’s third assignment of error states:
The trial court committed plain error by imposing court costs in the sentencing entry but not at the sentencing hearing. R.C. 2947.23; State v. Joseph ,125 Ohio St.3d 76 ,2010-Ohio-954 ,926 N.E.2d 278 , ¶ 1; Crim.R. 52(B). Sentencing Tr. 1-9; May 20, 2008 Nunc Pro Tunc Journal Entry. Worley argues that the trial court violated his statutory right that court
costs be imposed at the sentencing hearing when it did not impose such costs at his
sentencing hearing but did in its sentencing entry. Worley asks this court to remand
for a hearing concerning costs to afford him the opportunity to seek waiver of them. In
response, the state agrees.
*6
In State v. Joseph,
the Ohio Supreme Court held that it is reversible error under Crim.R. 43(A) for the trial court to impose court costs in its sentencing entry when it did not impose those costs in open court at the sentencing hearing. Id. at ¶ 22. The court reasoned that the defendant was denied the оpportunity to claim indigency and to seek a waiver of the payment of court costs before the trial court because the trial court did not mention costs at the sentencing hearing. Id. The remedy in such a situation is a limited remand to the trial court for the defendant to seek a waiver of court costs. Id. at ¶ 23. In this case, it is clеar that the trial court did not address court costs at Worley’s sentencing hearing, but did assess them in its judgment entry of sentence. Accordingly, Worley’s third assignment of error has merit. Worlеy’s fourth and final assignment of error states:
Johnny Worley was deprived of his constitutional right to the effective assistance of counsel. Fifth, Sixth, and Fourteenth Amendments, United State Constitution; Sections 10 and 16, Article I, Ohio Constitution. Sentencing Tr. 1-9. Under this assignment of error, Worley argues that he received
ineffective assistance of trial counsel by his trial counsel’s failure to inform the trial court of its failure to give him jail-time credit for the 28 days he served between his conviction and sentence. In response, the state contends that Worley was not deprived effective assistance of trial counsel by that counsel’s failure to request jail- time credit. The state contends that jail-timе credit is an “automatic computation” usually handled by the sentencing court and entered by the court in its sentencing entry, but that in this instance the omission was simply an oversight. The state argues that if Worley would have brought it to the attention of his trial counsel, his trial counsel would have notified the sentencing court and it would have correctеd the entry to properly reflect Worley’s jail-time credit. *7 This court has found merit to Worley’s first three assignments of error,
including Worley’s second assignment of error conсerning jail-time credit. Because this court’s resolution of that error necessitates remand to the trial court to correct the error, Worley will not have suffered any resulting prejudice. Accordingly, Worley’s fourth assignment of error has been rendered
moot. App.R. 12(A)(1)(c). The judgment of the trial court is reversed and remanded in three
respects: (1) the trial court’s classification of Worley as a Tier III sex offender is reversed and the case remanded to the trial court to classify Worley pursuant to the law that existed at the time he committed his offenses which was Senate Bill 5, Megan’s Law, R.C. Chapter 2950; (2) the matter is remanded to the trial court for it to give Worley 28-days сredit for the time Worley served in jail between his conviction and sentence; and (3) that portion of the trial court’s judgment imposing court costs is reversed and the matter remanded to allow Worley the opportunity to move the court for a waiver of payment of court costs.
Waite, J., concurs.
DeGenaro, P.J., concurs.