State v. Smith , 2022 Ohio 564 ( 2022 )

[Cite as State v. Smith, 2022-Ohio-564.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2021-07-085
: OPINION
- vs - 2/28/2022
:
DEREK SMITH, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR-2019-07-1071
Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael Greer, Assistant
Prosecuting Attorney, for appellee.
Michele Temmel, for appellant.
S. POWELL, J.
{¶ 1} Appellant, Derek Smith, appeals the decision of the Butler County Court of
Common Pleas awarding him 148 days of jail-time credit rather than 230 days of jail-time
credit after he pled guilty and was convicted of one count of improperly handling a firearm
in a motor vehicle. For the reasons outlined below, we reverse the common pleas court's
Butler CA2021-07-085
decision and remand this matter for the limited purpose of issuing a nunc pro tunc
sentencing entry that properly reflects the amount of jail-time credit Smith was entitled to
receive; 230 days of jail-time credit rather than 148 days of jail-time credit, a difference of
82 days.
{¶ 2} On June 30, 2019, Smith was arrested and held in the Butler County Jail on
charges of having a weapon while under disability, improperly handing a firearm in a motor
vehicle, carrying a concealed weapon, receiving stolen property, obstructing official
business, and disorderly conduct. The following day, on July 1, 2019, Smith was arraigned
in the Butler County Area II Court and bond was set at $10,000. The record is devoid of
any evidence to indicate Smith posted the $10,000 bond.
{¶ 3} On July 3, 2019, the Area II Court held a preliminary hearing and bound the
charges over to the Butler County Court of Common Pleas for consideration by the Butler
County Grand Jury.
{¶ 4} On July 31, 2019, the Butler County Grand Jury returned an indictment
charging Smith with single counts of improperly handling a firearm in a motor vehicle,
carrying a concealed weapon, obstructing official business, and disorderly conduct. Smith
was subsequently arraigned in the common pleas court on August 5, 2019. Smith's bond
was thereafter reduced from $10,000 to $5,000. Just like with the $10,000 bond, the record
is devoid of any evidence to indicate Smith posted the $5,000 bond.
{¶ 5} On September 23, 2019, Smith pled guilty to one count of improperly handling
a firearm in a motor vehicle in exchange for the other three charges against him being
dismissed. After Smith entered his guilty plea, the common pleas court scheduled the
matter for a sentencing hearing to take place on October 28, 2019. The common pleas
court also amended the $5,000 bond to an OR, personal recognizance bond. The record
indicates Smith posted the OR bond later that day.
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{¶ 6} On October 28, 2019, the common pleas court sentenced Smith to a five-year
community control term. The conditions of Smith's community control required Smith to
serve 30 days in the Butler County Jail. The conditions of Smith's community control also
required Smith to take corrective thinking classes, to be subject to drug and alcohol usage
monitoring, and to obtain and maintain full-time employment, among others. The common
pleas court further notified Smith that, as of that date, he had accrued 86 days of jail-time
credit. This notice was later included in the common pleas court's October 29, 2019
sentencing entry.
{¶ 7} On February 11, 2020, a notice was filed with the common pleas court alleging
Smith had violated the conditions of his community control by failing to report to his
probation officer as ordered. The notice also alleged Smith had violated the conditions of
his community control by being unsuccessfully terminated from his drug and alcohol
treatment program and for failing to obtain and maintain full-time employment. The notice
further stated that Smith was at that time being held in custody at the Butler County Jail.
{¶ 8} On February 14, 2020, a common pleas court magistrate issued an entry
finding there was probable cause to believe Smith had violated the conditions of his
community control as alleged in the February 11, 2020 notice. Ten days later, on February
24, 2020, the common pleas court provided Smith with another OR, personal recognizance
bond. Smith posted the OR bond later that day.
{¶ 9} On April 6, 2020, the common pleas court held a hearing and determined that
Smith had violated the conditions of his community control as alleged in the February 11,
2020 notice. However, instead of revoking Smith's community control, the common pleas
court placed Smith on GPS monitored house arrest for 30 days. The common pleas court
also ordered Smith to successfully complete an intensive out-patient program at Sojourner
Recovery Services.
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{¶ 10} On September 25, 2020, a notice was filed with the common pleas court
alleging Smith had violated the conditions of his community control because of him being
arrested and charged with single counts of trafficking in drugs and driving under suspension.
Just like the previous notice filed on February 11, 2020, this notice also stated that Smith
was at that time being held in custody at the Butler County Jail.
{¶ 11} On September 30, 2020, a common pleas court magistrate issued an entry
finding there was probable cause to believe Smith had violated the conditions of his
community control as alleged in the September 25, 2020 notice. Shortly thereafter, on
October 8, 2020, Smith moved the common pleas court to provide him with yet another OR,
personal recognizance bond. The common pleas court granted Smith's motion on October
12, 2020. Smith posted the OR bond later that day.
{¶ 12} On December 8, 2020, a motion was filed with the common pleas court
requesting Smith's OR bond be revoked because of Smith being arrested and charged with
single counts of failing to comply with a police officer, obstructing official business, resisting
arrest, and having an open container in a motor vehicle. The common pleas court granted
the motion that same day and ordered Smith be remanded into the custody of the Butler
County Jail. Three days later, on December 11, 2020, a notice was filed with the common
pleas court alleging Smith had violated the conditions of his community control based on
him being arrested and charged with the four above named offenses.
{¶ 13} On March 29, 2021, the common pleas court held a hearing and determined
that Smith had violated the conditions of his community control for a second time. Upon
making this determination, the common pleas court revoked Smith's community control and
sentenced him to 18 months in prison, less 148 days of jail-time credit.
{¶ 14} On June 4, 2021, Smith moved the common pleas court to recalculate its
award of jail-time credit to include the days "that were not credited from prior to the original
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disposition of the case." The common pleas court denied Smith's motion in an entry filed
on July 19, 2021. Smith now appeals the common pleas court's decision, raising the
following single assignment of error.
{¶ 15} THE TRIAL COURT'S DECISION TO GIVE 148 DAYS OF JAIL TIME
CREDIT FOR TIME SERVED WAS CONTRARY TO LAW.
{¶ 16} In support of his single assignment of error, Smith argues the common pleas
court erred by awarding him with 148 days of jail-time credit rather than 230 days of jail-
time credit, a difference of 82 days. We agree.
{¶ 17} "The Equal Protection Clause requires that all time spent in jail prior to trial
and prior to commitment must be credited to the prisoner's sentence." State v. Dobbins,
12th Dist. Butler Nos. CA2019-04-061 thru CA2019-04-063, 2020-Ohio-726, ¶ 18, citing
State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, ¶ 7. This principle is codified in R.C.
2967.191(A). State v. McClellan, 12th Dist. Preble No. CA2018-10-014, 2019-Ohio-5034,
¶ 13. Pursuant to that statute, the department of rehabilitation and correction must reduce
the stated prison term of a prisoner "by the total number of days that the prisoner was
confined for any reason arising out of the offense for which the prisoner was convicted and
sentenced," including confinement in lieu of bail while the prisoner awaited trial.
{¶ 18} However, "[a]lthough the department of rehabilitation and correction 'has a
mandatory duty pursuant to R.C. 2967.191 to credit an inmate with jail time already served,
it is the trial court that makes the factual determination as to the number of days of
confinement that a defendant is entitled to have credited toward his sentence.'" State v.
Brown, 12th Dist. Butler No. CA2020-08-082, 2021-Ohio-997, ¶ 12, quoting State ex rel.
Rankin v. Ohio Adult Parole Auth., 98 Ohio St.3d 476, 2003-Ohio-2061, ¶ 7. "A trial court's
failure to properly calculate an offender's jail-time credit and to include the amount of jail-
time credit in the body of the offender's sentencing judgment amounts to plain error." State
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v. Edmonds, 12th Dist. Warren No. CA2014-03-045, 2015-Ohio-2733, ¶ 9.
{¶ 19} As noted above, to support his single assignment of error, Smith argues the
common pleas court erred by awarding him 148 days of jail-time credit rather than 230 days
of jail-time credit. The state concedes, and we agree, that based on the record properly
before this court the common pleas court erred by awarding Smith with only 148 days of
jail-time credit when it should have instead awarded 230 days of jail-time credit, a difference
of 82 days. We reach this decision based on the following calculation:
1. 86 days between June 30, 2019, the date of Smith's arrest,
and September 23, 2019, the date Smith entered his guilty plea
and was released on an OR bond, as confirmed by the common
pleas court's October 29, 2019 sentencing entry;
2. 14 days between February 11, 2020, the date Smith was in
custody at the Butler County Jail pursuant to the first notice
alleging Smith had violated the conditions of his community
control, and February 24, 2020, the date Smith was again
released on an OR bond;
3. 18 days between September 25, 2020, the date Smith was
in custody at the Butler County Jail pursuant to the second
notice alleging Smith had violated the conditions of his
community control, and October 12, 2020, the date Smith was
once again released on an OR bond; and
4. 112 days between December 8, 2020, the date Smith was in
custody at the Butler County Jail after his OR bond was revoked
by the common pleas court, and March 29, 2021, the date the
common pleas court revoked Smith's community control.
{¶ 20} When added together, this equates to a total of 230 days of jail-time credit
that Smith was entitled to receive, not 148 days of jail-time credit as awarded by the
common pleas court: (86 days + 14 days = 100 days) + (18 days + 112 days = 130 days) =
230 total days. The common pleas court, therefore, erred by awarding Smith 148 days of
jail-time credit rather than 230 days of jail-time credit. Accordingly, because we find error
with the common pleas court's calculation of the days of jail-time credit Smith was entitled
to receive, Smith's single assignment of error is sustained and this matter is remanded to
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the common pleas court for the limited purpose of issuing a nunc pro tunc sentencing entry
that properly reflects the amount of jail-time credit Smith was entitled to receive; 230 days
of jail-time credit rather than 148 days of jail-time credit, a difference of 82 days.
{¶ 21} Judgment reversed and remanded.
PIPER, P.J., and HENDRICKSON, J., concur.
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