State v. Feathers , 2021 Ohio 2886 ( 2021 )

[Cite as State v. Feathers, 2021-Ohio-2886.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NOS. 2020-P-0068
2020-P-0069
Plaintiff-Appellee,
-v- Criminal Appeals from the
Court of Common Pleas
DAVID E. FEATHERS,
Defendant-Appellant. Trial Court No. 2004 CR 00424
OPINION
Decided: August 23, 2021
Judgment: Affirmed in part and affirmed as modified in part
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Thomas Rein, 820 West Superior Avenue, Suite 800, Cleveland, OH 44113 (For
Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, David E. Feathers, appeals from the judgment of the
Portage County Court of Common Pleas, in which the court found he violated the terms
of his community control and ordered him to serve the balance of his prison term for the
underlying offenses. For the following reasons, we affirm in part and affirm as modified
in part the judgment of the lower court.
{¶2} On November 4, 2004, Feathers was indicted on Aggravated Burglary, a
felony of the first degree, in violation of R.C. 2911.11(A)(1) and (2); Felonious Assault, a
felony of the second degree, in violation of R.C. 2903.11(A)(1) and (2); and Domestic
Violence, a felony of the fifth degree, in violation of R.C. 2919.25. He was convicted of
these offenses following a jury trial. On appeal, this court found reversible error and
remanded for a new trial. State v. Feathers, 11th Dist. Portage No. 2005-P-0039, 2007-
Ohio-3024.
{¶3} On remand, an amended indictment was issued, which, inter alia, changed
the level of offense for Domestic Violence to a fourth-degree felony. On May 28, 2008,
Feathers entered a plea of guilty to the offenses as charged in the amended indictment.
Feathers was sentenced to consecutive prison terms of eight years for Aggravated
Burglary, four years for Felonious Assault, and one year for Domestic Violence.
{¶4} On February 9, 2015, the court granted Feathers’ motion for judicial release
and ordered that he be placed on intensive supervision probation for one year and four
additional years of general probation, which was modified in 2017 due to a violation when
he pled guilty to a felony offense.
{¶5} On July 19, 2019, the probation department filed a Motion to Revoke/Modify
Probation on the grounds that Feathers pled guilty to various charges in the Ashland
County Court of Common Pleas. A hearing was held on October 21, 2019, at which the
trial court addressed motions to revoke in this case, Portage County Case No. 2004 CR
00424, and in Portage County Case No. 2016 CR 00695, which involved a conviction for
Failure to Comply. At the hearing, Feathers admitted to violating the terms of his
probation. The court found Feathers “is no longer amenable to community control
sanctions and I’m going to terminate his probation, impose the balance of the prison term
[and] * * * [t]hat will run consecutive to anything from Ashland County that has not been
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fulfilled.” On October 23, 2019, the court issued a judgment ordering Feathers to serve
the balance of his prison term. It stated that Feathers had been given 152 days of jail
credit when originally sentenced in 2005, additional credit for “all the days he served in
jail and prison previously” when he was resentenced in 2008, and was credited with 214
days served from December 6, 2007 (appearing from the record to reference the time he
was returned from Lake Erie Correctional Institution to the Portage County Jail pending
proceedings on remand) until sentencing on July 7, 2008. It further stated that “Defendant
shall receive credit for all the time served in the Portage County Jail and prison in this
matter. That time shall be calculated by the reception facility. (Defendant served five
days in jail after judicial release up to the date of this hearing).”
{¶6} This court granted Feathers’ motion to file a delayed appeal. On appeal,
Feathers raises the following assignments of error:
{¶7} “[1.] The trial court erred by ordering Appellant to serve a consecutive
sentence without making the appropriate findings required by R.C. 2929.14 and HB 86.
{¶8} “[2.] The trial court was without jurisdiction more than nine (9) years later to
correct its improper imposition of post-release control.
{¶9} “[3.] The trial court failed to properly calculate Appellant’s jail time credit
and failed to set forth those numbers in the October 23, 2019 Sentencing Journal Entry.”
{¶10} In his first assignment of error, Feathers argues that the lower court “did not
make the appropriate findings to justify a consecutive sentence in his original Sentencing
Journal Entry or in his October 23, 2019 Sentencing Journal Entry.”
{¶11} “The court hearing an appeal [of a felony sentence] shall review the record,
including the findings underlying the sentence or modification given by the sentencing
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court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce, or otherwise
modify a sentence that is appealed under this section or may vacate the sentence and
remand the matter to the sentencing court for resentencing * * * if it clearly and
convincingly finds * * * [t]hat the record does not support the sentencing court’s findings
under division * * * (C)(4) of section 2929.14, or * * * [t]hat the sentence is otherwise
contrary to law.” R.C. 2953.08(G)(2)(a) and (b).
{¶12} “Under R.C. 2929.14(C)(4), a sentencing court is required to make three
distinct findings in order to require an offender to serve consecutive prison terms: (1)
that consecutive sentences are ‘necessary to protect the public from future crime or to
punish the offender’; (2) that consecutive sentences are ‘not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the public’;
(3) ‘and * * * also’ that one of the circumstances described in subdivision (a) to (c) is
present.” (Citation omitted.) State v. Claar, 11th Dist. Portage No. 2019-P-0091, 2020-
Ohio-1330, ¶ 11. “[A] trial court is required to make the findings mandated by R.C.
2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing
entry, but it has no obligation to state reasons to support its findings.” Id., citing State v.
Bonnell, 140 Ohio St.3d 209, 2104-Ohio-3177, 16 N.E.3d 659, ¶ 37.
{¶13} First, as to Feathers’ argument that the lower court erred in failing to make
consecutive sentencing findings for Aggravated Burglary, Felonious Assault, and
Domestic Violence in its original sentencing entry in 2008, such an argument is barred by
the doctrine of res judicata. A defendant is required to raise errors relating to the
imposition of consecutive sentences in a direct appeal from the sentencing judgment and,
thus, Feathers is precluded from raising this issue here. State v. Raulston, 11th Dist.
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Portage No. 2019-P-0035, 2019-Ohio-5189, ¶ 10 (“[b]ecause appellant could have raised
the consecutive sentence argument in a direct appeal, res judicata precludes raising it in
a motion before the trial court or on an appeal therefrom”); State v. Holdcroft, 137 Ohio
St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 8; State v. Wolke, 4th Dist. Adams No.
17CA1048, 2018-Ohio-2119, ¶ 14 (“because the trial court’s ‘alleged failure to comply
with the consecutive sentencing statute does not render [the] sentence void, res judicata
applies’”) (citation omitted). Further, when the court reimposed the remaining sentence
after revoking community control ordered as part of Feathers’ judicial release, it was not
required to make consecutive sentencing findings as to the running of the sentences for
Aggravated Burglary, Felonious Assault, and Domestic Violence consecutively. State v.
Thompson, 3d Dist. Crawford Nos. 3-16-01 and 3-16-12, 2016-Ohio-8401, ¶ 14 (“[w]hen
the trial court is reimposing the remainder of the defendant’s original sentence after
revoking his judicial release, the trial court need not make the statutory findings that are
required when a felony sentence is originally imposed”).
{¶14} Feathers also contends that the court erred in determining at the sentencing
hearing following revocation that his sentence in the present matter would run
consecutive with the Ashland County case. He contends that the court failed to make
any findings supporting consecutive sentences and did not memorialize any such findings
in its October 23, 2019 Judgment Entry. In this matter, the court held the revocation
hearing for this case as well as Case No. 2016 CR 00695, which involved Feathers’
conviction for Failure to Comply, jointly. At that hearing, the court revoked community
control in both cases, ordered the reinstatement of Feathers’ sentence for this case, and
ordered Feathers to serve a prison term of three years in Case No. 2016 CR 00695. As
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to consecutive sentences, at the hearing, the court stated only that Feathers “is no longer
amenable to community control sanctions and I’m going to terminate his probation,
impose the balance of the prison term [and] * * * [t]hat will run consecutive to anything
from Ashland County that has not been fulfilled.” The court did not specifically reference
to which case this finding related, since two separate matters were addressed at the
revocation hearing. The Judgment Entry in the present matter does not make any finding
or order that the sentence be served consecutively to any other sentence, including the
Ashland County case. “It is well-established that a trial court only speaks through its
judgment entries.” State v. Russell, 11th Dist. Lake No. 2019-L-138, 2020-Ohio-3243, ¶
59. There is no basis to reverse a consecutive sentence that was not ordered through an
entry of the court.
{¶15} We note that, in Case No. 2016 CR 00695, the Judgment Entry did order
that the term for Failure to Comply run consecutively to the sentence in the present matter,
Case No. 2004 CR 00424. A consecutive sentence was mandatory in that instance,
where Feathers pled guilty to third-degree felony Failure to Comply. See State v. Lough,
11th Dist. Trumbull No. 2015-T-0093, 2016-Ohio-3513, ¶ 24-26. Such sentence was
permissible and does not impact the validity of the sentence in the present matter. For
the foregoing reasons, we discern no error by the trial court in the present matter relating
to the imposition of consecutive sentences.
{¶16} The first assignment of error is without merit.
{¶17} In his second assignment of error, Feathers argues that the trial court did
not have jurisdiction to correct the improper imposition of post-release control nine years
after sentencing.
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{¶18} Feathers first contends that it was error for the trial court to fail to provide a
correct advisement of mandatory post-release control in its July 9, 2008 sentencing entry
when Feathers was originally sentenced. However, as the Ohio Supreme Court has
explained, an error in imposing post-release control must be corrected on a direct appeal
and a failure to raise it at that stage renders it barred at subsequent stages by the doctrine
of res judicata. State v. Hudson, 161 Ohio St.3d 166, 2020-Ohio-3849, 161 N.E.3d 608,
¶ 17 (“the doctrine of res judicata will apply to collateral attacks on” a sentence on the
grounds of errors in imposing post-release control). This is the case because, provided
the court had “constitutional and statutory power to proceed to judgment,” it does not
render a sentence void. Id. at ¶ 16; State ex rel. Randlett v. Lynch, 2021-Ohio-221, 167
N.E.3d 138, ¶ 26 (10th Dist.) (“the failure [to include language regarding the
consequences of postrelease control] did not invalidate the entry’s imposition of
postrelease control, which was res judicata”). Here, there is no dispute that the trial court
had power to proceed to judgment and sentence Feathers in 2008 and, thus, any alleged
failure relating to post-release control did not render the sentence void and is barred by
res judicata.
{¶19} In an attempt to avoid application of the doctrine of res judicata, Feathers
argues that since the trial court did not properly inform him regarding post-release control
in 2008, it was without jurisdiction to correct this error in its 2019 entry, wherein it advised
that it notified Feathers that, after release from prison, he “will be supervised under
mandatory post release control.” Feathers cites no authority for this proposition. If
Feathers is not entitled to correction of an issue in the imposition of post-release control
due to the doctrine of res judicata, there can be no reasonable argument that we should
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reverse Feathers’ sentence based on a correct advisement given when his sentence is
reimposed. It is not reversible error to give a correct advisement to a defendant when
reimposing a sentence, nor does it appear the court’s advisement was an attempt to
correct a past error as Feathers contends.
{¶20} The second assignment of error is without merit.
{¶21} In his third assignment of error, Feathers argues that the trial court failed to
properly calculate his jail time credit, emphasizing that it did not include in its entry all jail
time served, instead stating that “the time shall be calculated by the reception facility.”
{¶22} “We review the trial court’s determination as to the amount of credit to which
[a defendant] is entitled under the ‘clearly and convincingly’ contrary to law
standard.” State v. Mason, 11th Dist. Lake No. 2019-L168, 2020-Ohio-1561, ¶ 7, citing
State v. Smith, 11th Dist. Geauga No. 2014-G-3185, 2014-Ohio-5076, ¶ 15, quoting R.C.
2953.08(G)(2).
{¶23} R.C. 2967.191(A) requires a reduction of a prison term for days of related
confinement and provides that “[t]he department of rehabilitation and correction shall
reduce the 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 awaiting trial,
confinement for examination to determine the prisoner’s competence to stand trial or
sanity, confinement while awaiting transportation to the place where the prisoner is to
serve the prisoner’s prison term, * * * and confinement in a juvenile facility.”
{¶24} Initially, we note that the State conceded the error in its brief, contending
that while the court did state various periods of jail time credit in its sentencing entry, “a
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review of the record indicates that Feathers was granted judicial release from prison on
February 9, 2015, and his period of incarceration has not been included in the
com[p]utation of his jail-time credit.” At oral argument, however, it stated that it was in
error in its belief that the trial court was required to order prison time credit in addition to
jail time credit. Any period of incarceration in the Lake Erie Correctional Institution would
not properly be included in the trial court’s calculation of credit since calculations for time
served in prison are to be completed by the department of rehabilitation and corrections.
“Under R.C. 2929.19(B)(2)(g)(i), ‘the number of days that the offender has been confined
for any reason arising out of the offense for which the offender is being sentenced,’
otherwise known as jail time, ‘shall not include the number of days, if any, that the offender
previously served in the custody of the department of rehabilitation and correction,’
otherwise known as prison time. R.C. 2929.19(B)(2)(g)(i), therefore, precludes a
sentencing court from calculating the number of days appellant previously served in
prison when determining jail-time credit.” State v. Fisher, 10th Dist. Franklin No. 16AP-
402, 2016-Ohio-8501, ¶ 14; also State v. Price, 4th Dist. Athens Nos. 19CA14, et al.,
2020-Ohio-6702, ¶ 33 (“[T]he trial court did not err or abuse its discretion in failing to
specifically include Price’s days served in the custody of ODRC in its jail-time credit
calculation. Rather, it is the duty of ODRC to determine that figure and reduce Price’s
prison sentence in accordance with R.C. 2967.191.”). Thus, there was no error by the
trial court declining to calculate prison time credit.
{¶25} As to jail time credit, the duty to calculate such credit “lies solely with the
trial court which imposes the actual sentence” and “the final determination of the amount
of credit should be contained in the final sentencing judgment.” (Citations omitted.) State
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v. Ott, 11th Dist. Portage No. 2012-P-0010, 2012-Ohio-4471, ¶ 26; Davis v. Bobby, 11th
Dist. Trumbull No. 2007-T-0063, 2007-Ohio-5610, ¶ 7 (“the duty to complete the
calculation lies solely with the trial court which imposes the actual sentence”). “R.C.
2949.12 provides that the final sentencing order in a criminal case must specify ‘the total
number of days, if any, that the felon was confined for any reason prior to conviction and
sentence.’” Gunther v. Dept. of Corr. & Rehab., 11th Dist. Trumbull No. 2010-T-0010,
2010-Ohio-2405, ¶ 3.
{¶26} Here, the trial court cited various periods of time where Feathers had
received or is entitled to receive jail time credit, including 152 days of credit in 2005, 214
days served from December 6, 2007, to July 7, 2008, and five days “after judicial release,”
although it did not state an overall “total” period of jail time credit. We do not find error in
the individual calculations of jail time credit, nor do the parties take issue with these
numbers. We do emphasize, however, that the total amount of jail time credit should be
clearly stated in order to inform the reception facility of the proper amount of time to be
served.
{¶27} Further, the trial court’s entry stated the following: “Defendant shall receive
credit for all the time served in the Portage County Jail and prison in this matter. That
time shall be calculated by the reception facility.” “[T]he DRC ‘has not been afforded any
discretion to decide what amount of credit must be given; instead, its role is limited to
enforcing the credit as determined by the trial court.’” Ott at ¶ 26, citing Davis at ¶ 6.
While the court may have intended this statement to apply to credit for other matters such
as transportation to the prison, which the department of rehabilitation and correction
calculates, we will not make such an assumption. The order of the court could not require
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the department of rehabilitation and corrections to calculate credit for time served in the
county jail awaiting trial and sentencing.
{¶28} Based on these facts, we modify the trial court’s judgment to clarify that the
total amount of jail time credit to which Feathers is entitled is 371 days. We further modify
the court’s judgment that “Defendant shall receive credit for all the time served in the
Portage County Jail and prison in this matter. That time shall be calculated by the
reception facility,” to require that the reception facility calculate only prison time served
and the number of days of confinement between the entry of sentence and commitment
to the department of rehabilitation and correction.
{¶29} The third assignment of error is with merit, to the extent discussed above.
{¶30} For the foregoing reasons, the judgment of the Portage County Court of
Common Pleas is affirmed in part and affirmed as modified in part. Costs to be taxed
against the parties equally.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.
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