State v. Walker , 2013 Ohio 3522 ( 2013 )

[Cite as State v. Walker, 2013-Ohio-3522.]
[Please see vacated opinion at 2013-Ohio-3148.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99239
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
QUINTINE M. WALKER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED; REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-545422
BEFORE: Blackmon, J., Boyle, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: August 15, 2013
-i-
ATTORNEY FOR APPELLANT
Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: James Hofelich
Milko Cecez
Daniel T. Van
Assistant County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
ON RECONSIDERATION1
PATRICIA ANN BLACKMON, J.:
{¶1} Appellant Quintine M. Walker (“Walker”) appeals his convictions for
aggravated robbery and having a weapon while under disability, and assigns six errors for
our review.2
{¶2} Having reviewed the record and relevant law, we affirm Walker’s
convictions but remand the matter for the trial court to calculate the jail-time credit to
which Walker is entitled. The apposite facts follow.
Facts
{¶3} The Cuyahoga County Grand Jury indicted Walker on 11 counts: two
counts for aggravated robbery, four counts for kidnapping, two counts for felonious
assault, one count for theft, one count for having a weapon while under disability, and one
count for contributing to the delinquency of a minor. The charges arose from the robbery
of two pizza delivery men at gunpoint by Walker and his codefendants: L.B.3, Emmanual
Jackson (“Jackson”), and Oliver Finklea (“Finklea”).
{¶4} L.B., Jackson, Finklea, and Walker were socializing the evening of
December 16, 2010 at L.B.’s house, when they came up with the plan to commit a
robbery. Around 1:00 a.m., on December 17, 2010, L.B. ordered several pizzas, wings,
1
The original announcement of decision, State v. Walker, 8th Dist. Cuyahoga
App. No. 99239, 2013-Ohio-3148, released July 18, 2013, is hereby vacated. This
opinion, issued upon reconsideration, is the court’s journalized decision in this
appeal. See App.R. 22(C); see also S.Ct.Prac.R. 7.0(1).
2
See appendix.
3
Codefendant L.B. is a minor; therefore, she is referred to by her initials.
and pop from Arcade Pizza, the only pizza shop in the area that would deliver late at
night. She gave the delivery address as 6717 Fullerton Road, which was a house where
no one was home across from L.B.’s house. The plan was for L.B. to act like she was
the customer, while the other three robbed the delivery man. Walker had a .9mm
handgun that Jackson took from him to use during the robbery.
{¶5} Two Arcade Pizza delivery employees delivered the pizza, Joseph Salatino
(“Salatino”) and Sam Jeffrey (“Jeffrey”). Salatino removed the pizzas from the car and
walked towards L.B. who was walking from the back of the house. As Salatino
approached L.B., Jackson pulled out the gun and ordered L.B. and Salatino to get on the
ground. While Jackson searched Salatino, Finklea and Walker went to the car and
ordered Jeffrey to exit. Because the passenger door was not working, Finklea pulled him
out through the driver’s side. Both Finklea and Walker searched the victims’ pockets
and the car.
{¶6} Once the group retrieved the men’s cell phones, Salatino’s jacket, wallet
and gloves, Jackson shot the gun in the air and ordered the men to run. The delivery men
ran towards the field next to the home. Jeffrey turned to look back at the men twice and
each time Jackson fired a shot at him. Jeffrey and Salatino eventually returned to the car
when they saw the group had left. They drove back to the pizza shop where they called
the police.
{¶7} After the robbery, the group ran across the street to return to L.B.’s house.
However, after hearing the gunshots, L.B.’s mother told them to leave. After gathering
their property, they left and went to DeWayne McClough’s (“McClough”) house, which
was located down the street, where they divided the proceeds from the robbery. L.B. and
Jackson then left, while Walker and Finklea spent the night at McClough’s house. The
next day, Walker and Finklea were arrested at McClough’s house, while L.B. and Jackson
were arrested at another house.
{¶8} Prior to the pizza delivery men calling the police, the police had already
been called by a resident on Fullerton who heard the shots fired. The police had also
received an anonymous call directing them to L.B.’s house. The police recovered two
.9mm shell casings from the outside area of the house where the pizzas were delivered.
{¶9} The jury found Walker guilty of aggravated robbery and kidnapping, both
with firearm specifications, and petty theft. They found Walker not guilty of the
remaining counts. The trial court conducted a separate hearing that found Walker guilty
of having a weapon while under disability. Upon remand from this court, the trial court
merged all the offenses, except for the weapons while under disability count with the
aggravated robbery count, and merged all the firearm specifications. The trial court
sentenced Walker to concurrent three-year terms for the aggravated robbery and having
weapons while under disability counts to be served consecutively to the three-year firearm
specification, for a total of six years.
Speedy Trial
{¶10} In his first assigned error, Walker argues that the trial court erred by failing
to grant his motion to dismiss for lack of a speedy trial.
{¶11} The Sixth Amendment of the United States Constitution and Section 10,
Article I of the Ohio Constitution guarantee an accused the right to a speedy and public
trial. State v. Ginley, 8th Dist. Cuyahoga No. 90724, 2009-Ohio-30. The standard of
review that appellate courts apply to speedy trial issues is to count days as set forth in
R.C. 2945.71. State v. Stevens, 8th Dist. Cuyahoga No. 87693, 2006-Ohio-5914. Trial
must be held within 270 days of arrest in order to effectuate a speedy trial. R.C.
2945.71(C)(2). However, pursuant to R.C. 2945.71(E), each day spent in jail “on a
pending charge” acts as three days toward speedy trial time, thus 90 days time in jail
would equate to 270 days using the triple-count provision.
{¶12} Walker was arrested on December 17, 2010. Because he was incarcerated
while awaiting trial, the state had 90 days to bring Walker to trial. The date of arrest is
not included in the calculation of days in determining a speedy trial violation. State v.
Steiner, 71 Ohio App.3d 249, 250-51, 593 N.E.2d 368 (9th Dist.1991); State v. Thieshen,
55 Ohio App.2d 99, 379 N.E.2d 622 (3d Dist.1977). Thus, Walker’s speedy trial time
commenced on December 18, 2010.
{¶13} Although the trial did not commence until January 3, 2012, the trial court
had set the matter for trial several other times only to have it continued by various tolling
events. Based on the various tolling events, the trial court denied Walker’s motion to
dismiss because it concluded only 77 days had elapsed. Walker contends the trial court
failed to include 58 days.
{¶14} Pursuant to R.C. 2945.72, a speedy trial time may be tolled by several
events, including the following:
(B) Any period during which the accused is mentally incompetent to
stand trial or during which his mental competence to stand trial is
being determined, or any period during which the accused is physically
incapable of standing trial;
(C) Any period of delay necessitated by the accused’s lack of counsel,
provided that such delay is not occasioned by any lack of diligence in
providing counsel to an indigent accused upon his request as required
by law;
***
(E) Any period of delay necessitated by reason of a plea in bar or
abatement, motion, proceeding, or action made or instituted by the
accused;
***
(H) The period of any continuance granted on the accused’s own
motion, and the period of any reasonable continuance granted other
than upon the accused’s own motion;
{¶15} Walker filed a demand for discovery on January 6, 2011. “A demand for
discovery or a bill of particulars is a tolling event pursuant to R.C. 2945.72(E). State v.
Brown, 98 Ohio St.3d 121, 2002-Ohio-7040, 781 N.E.2d 159, at syllabus. Thus, his
speedy trial time was tolled until the state responded in a “reasonably timely manner.”
State v. McDonald, 153 Ohio App.3d 679, 2003-Ohio-4342 (8th Dist.) We have held
that that a “reasonable time” equates to 30 days. State v. Byrd, 8th Dist. Cuyahoga No.
91433, 2009-Ohio-3283; State v. Barb, 8th Dist. Cuyahoga No. 90768, 2008-Ohio-5877.
Here, the state did not respond to Walker’s discovery demand until June 6, 2011. Thus,
using the reasonableness standard, Walker’s motion tolled the time for 30 days.
Although the court in its entry stated the time was tolled until February 6, the thirtieth day
ends on February 5.
{¶16} On February 14, 2011, Walker filed a motion to disqualify counsel, that
operated to toll the time for trial. R.C. 2945.72(C); State v. Hiatt, 120 Ohio App.3d 247,
259-263, 697 N.E.2d 1025 (4th Dist.1997); State v. Friedlander, 8th Dist. Cuyahoga No.
90084, 2009-Ohio-3370, ¶ 19; State v. Halder, 8th Dist. Cuyahoga No. 87974,
2008-Ohio-3345, ¶ 8. Thus, Walker’s motion tolled the time until the court assigned
new counsel on February 23, 2011.
{¶17} The court then tolled the time from February 23 until the scheduled pretrial
on March 7, 2011, stating that both parties agreed that the time was tolled. On appeal,
Walker claims there is no evidence that he agreed to toll that time period; however, at the
November 15, 2011 speedy trial hearing, his counsel stated, “At that time [Feb. 23, 2011],
Regis McGann was assigned. The matter was continued for a pretrial on March 7.
Again, no speedy trial time was applied by me for that continuance.” Tr. 168. Thus, he
did agree to toll the time during that time period. Moreover, because counsel had just
been assigned on February 23, the continuance until March 7, 2011 was reasonable in
order to give counsel time to become familiar with the case. State v. Pirkel, 8th Dist.
Cuyahoga No. 93305, 2010-Ohio-1858.
{¶18} On March 9,4 the final pretrial was continued at defendant’s request until
March 15. On March 15, the pretrial was again continued at defendant’s request until
March 28, and on March 28 it was continued at defendant’s request until March 31, 2011.
4
The record does not show why the pretrial did not go forth on March 7.
Therefore, the two-day delay in holding the hearing does not count against Walker.
All of these continuances at Walker’s request, tolled the calculation of Walker’s speedy
trial time. R.C. 2945.72(H).
{¶19} In addition to the above pretrial continuances, on March 16, 2011, Walker
filed a motion for discovery. As we discussed above, the motion for discovery tolls the
time until the state responds or until a reasonable amount of time has passed. This court
has deemed 30 days as reasonable. Because of the overlap with Walker’s continuances,
only 15 days are tolled based on the discovery request.
{¶20} On April 27, 2011, Walker filed a motion for a grand jury transcript, that
constitutes a tolling event under R.C. 2945.72(E). The court never ruled on the motion.
However, motions filed by the defense toll the speedy trial time under R.C. 2945.72(E)
for a “reasonable period” to allow the state an opportunity to respond and the court an
opportunity to rule. See State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, 853
N.E.2d 283. Therefore, because 30 days has been determined to be a reasonable time,
the motion tolled the time for 30 days.
{¶21} On May 2, 2011, Walker filed another motion for discovery and also filed a
motion to disclose Evid.R. 404(B) evidence prior to trial. The prosecutor responded to
the discovery motions on June 6, 2011. Although this was beyond the 30 days we have
stated constituted a reasonable response time to discovery, the trial court concluded that a
34-day response time was reasonable because Walker’s counsel consented to the
reasonableness of the response time at the November 15, 2011 hearing. Our review of
the hearing, indicates counsel stated, that he did not add the additional days in his
computation of the speedy trial time, although he also stated they “arguably” could be
considered. Tr. 171. Given the overlap with the grand jury transcript request, which
tolled the time until May 27, Walker’s motion for discovery with the state’s response of
34 days, tolled the time an additional nine days.
{¶22} On June 6, 2011, the trial court continued a pretrial at defendant’s request
until June 22, 2011, further tolling the time. On June 6, the state also filed a motion for
reciprocal discovery Walker responded 58 days later. Under these circumstances, the
speedy trial clock was tolled for the reasonable response time of 30 days. State v.
Palmer, 112 Ohio St.3d 457, 2007-Ohio-374, 860 N.E.2d 1011; State v. Winn, 8th Dist.
Cuyahoga No. 98172, 2012-Ohio-5888; In re D.S., 8th Dist. Cuyahoga No. 97757,
2012-Ohio-2213; Barb, 8th Dist. Cuyahoga No. 90768, 2008-Ohio-5877. Given the
overlap with the time tolled for the continued pretrial, this resulted in an additional 14
days being tolled.
{¶23} Additionally, starting June 7, 2011 through August 8, 2011, Walker filed
several motions pro se.5 Walker argues the trial court should not have considered these
motions as tolling events because Walker was represented by counsel. We agree that
most of the motions were moot. The court, however, contended it considered the pro se
motions argued by his counsel at the July and August hearings. However, the only
motion argued by counsel was Walker’s motion to dismiss that he filed on July 18, 2011.
5
Walker filed the tolling motions: a motion requesting his assigned counsel to
file a motion to suppress statements; a motion indicating he did not give consent for
any continuances; a motion for separate trials from his codefendants; a motion that
he did not consent to any more evidence motions that would toll his speedy trial
time; a motion to inspect the grand jury transcript and a motion to dismiss for lack
of a speedy trial.
This motion was argued on Walker’s behalf by counsel at the August 30, 2011 hearing
and was denied by the court on September 20, 2011. We conclude this was the only pro
se motion that tolled the time. The court also references a motion to suppress, but the
pro se motion only states that Walker requested counsel to file such a motion, and the
record reflects that counsel never argued the motion.
{¶24} On June 30, 2011, Walker filed a motion to compel, and the court conducted
a hearing on the motion on July 17, 2011. The court tolled this time period. We
disagree that this motion should toll the time because the motion to compel discovery was
necessitated by the state’s failure to fully comply with Walker’s earlier discovery request;
thus, any delay caused by the motion was not chargeable to him and does not toll the
speedy trial time. State v. Ferrell, 8th Dist. Cuyahoga No. 93003, 2010-Ohio- 2882;
State v. McDaniel, 2d Dist. Miami No. 93-CA-38, 1994 Ohio App. LEXIS 3141 (July
13, 1994).
{¶25} On July 20, 2011, the trial court continued the final pretrial until July 26 at
defendant’s request, tolling the speedy-trial time. On August 4, 2011, the trial court
continued the final pretrial to August 11 at defendant’s request, tolling the time. Also on
August 4, 2011, Walker filed a motion for separate trials, that tolled the time until it was
granted on August 31, 2011. Given that these events overlap with other tolling events,
they did not add any more time to the tolling of the trial.
{¶26} On September 6, 2011, prior to the commencement of the trial, defense
counsel requested that Walker’s competency be evaluated. Therefore, the trial court
referred Walker to the psychiatry clinic for evaluation. This tolled the time until October
18, 2011, when Walker was found to be competent. State v. Palmer, 84 Ohio St.3d 103,
1998-Ohio-507, 702 N.E.2d 72.
{¶27} On November 7, 2011, Walker filed another motion to dismiss based on his
right to a speedy trial. This tolled the time until the court denied the motion on
November 21, 2011. State v. Hopkins, 8th Dist. Cuyahoga No. 90005, 2008-Ohio-3558,
¶ 33; Byrd, 8th Dist. Cuyahoga No. 91433, 2009-Ohio-3283, ¶ 23.
{¶28} Thereafter, both parties requested that the trial be continued until December
12, 2011 due to scheduling conflicts. The trial court had to further continue the trial until
January 3, 2012 due to a conflict with the court’s schedule. Scheduling and docketing
conflicts are reasonable grounds for extending an accused’s trial date beyond the speedy
trial limit date. State v. Lee, 48 Ohio St.2d 208, 357 N.E.2d 1095 (1976); State v. Saffell,
35 Ohio St.3d 90, 92, 518 N.E.2d 934 (1988).
{¶29} We conclude that although the trial court erred by tolling some days that
should not have been tolled, it did not err by denying Walker’s motion to dismiss.
According to our calculation, only 78 days had expired towards Walker’s speedy trial
time. Walker’s first assigned error is overruled.
Ineffective Assistance of Counsel
{¶30} In his second assigned error, Walker argues that counsel was ineffective for
waiving any speedy trial days that would have counted towards the count.
{¶31} To establish a claim for ineffective assistance of counsel, Walker must show
that his counsel’s performance was deficient and that deficiency prejudiced his defense.
Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Bradley, 423 Ohio St.3d 136, 538 N.E.2d 373 (1989). Under Strickland, our scrutiny of
an attorney’s work must be highly deferential, and we must indulge “a strong presumption
that counsel’s conduct falls within the range of reasonable professional assistance.” Id.
at 688.
{¶32} Walker contends his counsel was ineffective for waiving four days in
conjunction with the state’s response to his discovery. The state responded in 34 days
instead of the “reasonable time” of 30 days. “A defendant’s right to be brought to trial
within the time limits expressed in R.C. 2945.71 may be waived by his counsel for
reasons of trial preparation and the defendant is bound by the waiver even though the
waiver is executed without his consent.” State v. McBreen, 54 Ohio St.2d 315, 376
N.E.2d 593 (1978), syllabus.
{¶33} Moreover, even if we add those four days to Walker’s speedy-trial time,
only 81 days would have elapsed. He would still have been tried well before the 90 days
for a speedy trial. Therefore, no prejudice resulted. Accordingly, Walker’s second
assigned error is overruled.
Manifest Weight and Sufficiency of Evidence
{¶34} Walker’s third and fourth assigned errors will be addressed together as they
both concern Walker’s argument that there was no credible evidence that he participated
in the robbery because the victims could not identify him, and his codefendants were no
credible.
{¶35} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,
the Ohio Supreme Court addressed the standard of review for a criminal manifest weight
challenge, as follows:
The criminal manifest-weight-of-the-evidence standard was explained
in State v. Thompkins (1997), 78 Ohio St.3d 380, 1997 Ohio 52, 678
N.E.2d 541. In Thompkins, the court distinguished between sufficiency
of the evidence and manifest weight of the evidence, finding that these
concepts differ both qualitatively and quantitatively. Id. at 386, 678
N.E.2d 541. The court held that sufficiency of the evidence is a test of
adequacy as to whether the evidence is legally sufficient to support a
verdict as a matter of law, but weight of the evidence addresses the
evidence’s effect of inducing belief. Id. at 386-387, 678 N.E.2d 541. In
other words, a reviewing court asks whose evidence is more persuasive
— the state’s or the defendant’s? We went on to hold that although
there may be sufficient evidence to support a judgment, it could
nevertheless be against the manifest weight of the evidence. Id. at 387,
678 N.E.2d 541. “When a court of appeals reverses a judgment of a
trial court on the basis that the verdict is against the weight of the
evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees
with the factfinder’s resolution of the conflicting testimony.” Id. at 387,
678 N.E.2d 541, citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct.
2211, 72 L.Ed.2d 652.
Id. at ¶ 25.
{¶36} An appellate court may not merely substitute its view for that of the jury, but
must find that “in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered.” Thompkins at 387. Accordingly, reversal on manifest weight grounds
is reserved for “the exceptional case that the evidence weighs heavily against the
conviction.” Id.
{¶37} Walker contends that although Finklea and L.B. implicated him in the
robbery, they were not credible witnesses because they had received plea deals in
exchange for their testimony and had been smoking pot the entire day prior to the
robbery. Finklea had testified that Walker had invited him to participate in a robbery and
brought him back to L.B.’s house to help with the planning. He also stated that Walker
initially had the gun, but that Jackson took the gun from Walker prior to robbery; that
Walker was present when they all decided where to hide prior to the delivery of the pizza;
that he and Walker searched the delivery men’s pockets; and that the four of them split
the money after the robbery.
{¶38} L.B. testified that Walker was at her house while the group planned the
robbery. She stated that Finklea was the one that came up with the idea to rob a pizza
delivery man, but that she, Walker, and Jackson were in agreement. She also stated
Walker brought the gun, but that Jackson took it from him; that Walker hid with her
behind bushes prior to the pizza delivery; that she observed Walker searching the delivery
man’s car; and that they split the proceeds at McClough’s house where Finklea also gave
Walker one of the cell phones.
{¶39} This testimony directly implicates Walker in the planning and carrying out
of the robbery. Therefore, he was not merely present at the robbery, but was actively
involved. Whether to believe these witnesses was for the jury to determine. The
testimony of these two witnesses was consistent, and the jury was aware that they had
entered into pleas and had been smoking pot. We defer to the jury as to whether the
witnesses were credible because the jury is best able to weigh the evidence and judge the
credibility of witnesses by viewing the demeanor, voice inflections, and gestures of the
witnesses testifying. See Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461
N.E.2d 1273 (1994); State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967).
We conclude there is no reason to veer from this deference.
{¶40} Additionally, L.B.’s mother, who was not smoking pot and did not
participate in the robbery, testified that she saw Walker, along with the other men at her
home prior to the robbery. She said that when she walked into the kitchen where they
were, “it looked like I had just walked in on something.” She said after the gunshots, all
four of them tried to get back into her house, but she told all four of them to leave.
McClough, who also did not participate in the robbery, stated that Walker came to his
house with the other three and that they had pizza and pop. He watched as they split the
money. He noticed Walker had a bulge in his pants by his hip, that looked like a gun.
Thus, these two other witnesses corroborated Finklea’s and L.B.’s testimony.
{¶41} Walker also contends his conviction for aggravated robbery was not
supported by sufficient evidence. Crim.R. 29 mandates that the trial court issue a
judgment of acquittal where the state’s evidence is insufficient to sustain a conviction for
the offense. Crim.R. 29(A) and a sufficiency of the evidence review require the same
analysis. State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386.
{¶42} In analyzing whether a conviction is supported by sufficient evidence, the
reviewing court must view the evidence “in the light most favorable to the prosecution”
and ask whether “any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492(1991), paragraph two of the syllabus; State v. Carter, 72 Ohio St.3d 545,
1995-Ohio-104, 651 N.E.2d 965.
{¶43} Walker simply reiterates his arguments from his manifest weight of the
evidence argument and contends that because the testimony of Walker’s codefendants
was not credible, there was no evidence that Walker committed any criminal conduct
besides receiving a cell phone. However, as we stated, we defer to the jury regarding the
credibility of the witnesses. The jury obviously believed the testimony. Based on the
codefendants’ testimony, L.B.’s mother’s testimony, and McClough’s testimony, there
was evidence that Walker helped plan the robbery, provided the gun for the robbery, and
participated in the robbery by searching the victims’ pockets and car. This evidence
was sufficient to support a conviction for aggravated robbery pursuant to R.C.
2911.02(A)(1). Accordingly, Walker’s third and fourth assigned errors are overruled.
Hearsay
{¶44} In his fifth assigned error, Walker contends the trial court erred by allowing
Officer Messer to testify that McClough told him that a scarf and neck warmer found at
McClough’s house belonged to Walker.
{¶45} Even if this statement was hearsay, we do not see how it was prejudicial.
McClough testified that Walker and Finklea were arrested at his house the morning of
December 17, 2010. Therefore, the jury was aware that Walker was present at
McClough’s house. Error is harmless when there is no reasonable probability that the
jury would have acquitted the defendant had the evidence not been admitted. State v.
Brown, 65 Ohio St.3d 482, 605 N.E.2d 45 (1992). The scarf and neck warmer were not
crucial evidence in the instant case and did not play a part in Walker’s conviction.
Accordingly, Walker’s fifth assigned error is overruled.
Credit for Jail Time
{¶46} In his sixth assigned error, Walker contends the trial court erred by not
giving him credit for jail time. Prior to his sentencing, Walker submitted a motion for
jail-time credit that was never ruled upon by the trial court.
{¶47} R.C. 2967.191 requires that an offender’s prison term be reduced “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 [.]” “Although the
[department of rehabilitation and correction] has a mandatory duty pursuant to R.C.
2967.191 to credit an inmate with the 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 ex rel. Rankin v. Ohio Adult
Parole Authority, 98 Ohio St.3d 476, 2003-Ohio-2061, 786 N.E.2d 1286, ¶ 7. Thus, we
remand the matter for the trial court to calculate the amount of jail-time credit to which
Walker is entitled. Accordingly, Walker’s sixth assigned error is overruled.
{¶48} Judgment is affirmed, and the matter remanded for the calculation of
jail-time credit.
It is ordered that appellant and appellee share the costs herein taxed. The court
finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the court of
common pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
MARY J. BOYLE, P.J., and
KENNETH A. ROCCO, J., CONCUR
APPENDIX
Assignments of Error
I. Defendant was denied due process of law by lapse of his speedy trial
time.
II. Defense counsel was ineffective in failing to properly argue speedy
trial time to the trial court.
III. The manifest weight of the evidence did not support appellant’s
convictions for aggravated robbery, kidnapping, or theft.
IV. Insufficient evidence supported any of appellant’s convictions.
V. The trial court erred in allowing hearsay evidence over defense
counsel objection.
VI. The trial court erred in failing to grant appellant jail time credit.