City of Cleveland v. Coleman

• Decision Date: 18 March 2021
• Docket Number: No. 109527,109527
• Citation: 169 N.E.3d 298
• Parties: City of CLEVELAND HEIGHTS, Plaintiff-Appellee, v. Jimmy COLEMAN, Defendant-Appellant.
• Court: Ohio Court of Appeals

169 N.E.3d 298

City of CLEVELAND HEIGHTS, Plaintiff-Appellee,

v.Jimmy COLEMAN, Defendant-Appellant.

No. 109527

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: March 18, 2021

William R. Hanna, Director of Law, City of Cleveland Heights, and Pamela Roessner, Assistant City Prosecutor, for appellee.

Milton A. Kramer Law Clinic, Case Western Reserve University School of Law, Andrew S. Pollis, attorney, Rocco Screnci, P.P.A., Joseph Shell, and David A. Codispoti, certified legal interns, for appellant.

JOURNAL ENTRY AND OPINION

SEAN C. GALLAGHER, P.J.:

{¶ 1} Jimmy Coleman appeals his misdemeanor conviction for disorderly conduct, entered following a plea of no contest after the trial court rejected Coleman's speedy trial violation claims advanced under R.C. 2941.401. For the following reasons, we affirm the conviction.

{¶ 2} Coleman was charged with stealing a pressure washer from a local retail establishment in July 2018, leading to the underlying prosecution in Cleveland Heights, Ohio. At the time he faced several, unrelated felony charges in the Cuyahoga County Court of Common Pleas. Coleman was held in the Cuyahoga County Jail pending the disposition of the felony charges. In January 2019, Coleman filed a "notice of availability" under R.C. 2941.401 claiming to be "incarcerated" at the county jail and that a "certificate of custody" was available "upon request."¹ There is no certificate of service accompanying the filing as required under Crim.R. 49(C), nor does the record contain evidence that Coleman contacted the warden or superintendent having custody of him to either provide a certificate of custody or to forward the notice of availability through the appropriate channels. The municipal court denied Coleman's motion to dismiss, in which he claimed that his trial was not timely under the 180-day limit imposed by R.C. 2941.401.

{¶ 3} Throughout these proceedings, Coleman repeatedly references the fact that he was "incarcerated" at the Cuyahoga County Jail at the time that his January 2019 notice of availability was filed. This phrasing of his status is curious in light of the fact that R.C. 2941.401 entitles a person who "has entered upon a term of imprisonment " to file a notice of availability. (Emphasis added.) There is no statutory definition for the term "incarcerate," which is generally, and quite broadly, defined as "to put in prison" or "to subject to confinement." Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/incarcerate (accessed Mar. 11, 2021). Coleman's repeated usage of the term with respect to R.C. 2941.401 exposes a misnomer — that "incarcerated" is necessarily synonymous with "term of imprisonment."

{¶ 4} R.C. 2941.401 provides that

When a person has entered upon a term of imprisonment in a correctional institution of this state, and when during the continuance of the term of imprisonment there is pending in this state any untried indictment, information, or complaint against the prisoner, he shall be brought to trial within one hundred eighty days after he causes to be delivered to the prosecuting attorney and the appropriate court in which the matter is pending, written notice of the place of his imprisonment and a request for a final disposition to be made of the matter, * * *. The request of the prisoner shall be accompanied by a certificate of the warden or superintendent having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time served and remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the adult parole authority relating to the prisoner.

(Emphasis added.) Thus, the statute creates a fundamental prerequisite. The person seeking to invoke R.C. 2941.401 must be serving a "term of imprisonment," a term of art as used throughout the Revised Code. R.C. 1.05(A) provides that "imprisoned" or "imprisonment" "means being imprisoned under a sentence imposed for an offense or serving a term of imprisonment, prison term, jail term, term of local incarceration , or other term under a sentence imposed for an offense * * *." (Emphasis added.) Id. Thus, a "term of imprisonment" is the length or duration of the final sentence imposed upon an offense, and a term of local incarceration is merely one method of serving such a sentence. See State ex rel. McKee v. Cooper , 40 Ohio St.2d 65, 73, 320 N.E.2d 286 (1974), citing R.C. 5141.01 ("term of imprisonment" is defined as "the duration of the state's legal custody and control over a person sentenced. " (Emphasis added.)). By definition, "term of imprisonment" does not include being detained or confined in lieu of bail pending resolution of an indictment, information, or complaint since the confinement is not a result of a sentence being imposed upon an offense. State v. Trammell , 12th Dist. Butler Nos. CA2016-11-220, CA2016-11-221, and CA2016-11-222, 2017-Ohio-8198, 2017 WL 4616355, ¶ 25, fn. 4 ; see also State v. Black , 142 Ohio St.3d 332, 2015-Ohio-513, 30 N.E.3d 918, ¶ 54 (broadly defining the type of institution under the similarly worded R.C. 2963.30 but concluding that the prisoner must first begin serving the imposed sentence before that statute is properly invoked). Pretrial detention, or "confinement in lieu of bail while awaiting trial" in statutory parlance under R.C. 2967.191 (statutory section providing for the reduction of a prison term for related days of confinement), cannot be considered synonymous with a "term of imprisonment."

{¶ 5} This conclusion is bolstered by the fact that R.C. 2941.401 unambiguously requires the defendant to take steps to cause the warden or superintendent of the inmate's institution to deliver a "certificate of custody" to accompany the "notice of availability." State v. Hairston , 101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471, ¶ 20 (finding R.C. 2941.401 to be unambiguous as a matter of law). A certificate of custody must contain, according to the express language of the statute, the term of commitment the defendant is then serving. A certificate of custody cannot be issued in the case of pretrial confinement — the term of commitment, and all other information that must be contained within the certificate, would be nonexistent in light of the transient nature of the pretrial detention. This distinction is important.

{¶ 6} R.C. 2941.401 in part "allows inmates to resolve the misdemeanor charges against themselves while serving a felony sentence. Since, the misdemeanor sentence would most likely run concurrent to the felony sentence, the misdemeanor sentence may be completed prior to the completion of the felony sentence." State v. Lewis , 7th Dist., 2020-Ohio-5294, 162 N.E.3d 113, ¶ 25. The goal of R.C. 2941.401 is to permit an inmate to have all cases resolved during the inmate's term of imprisonment so the resulting sentences are not aggregated by the passage of time between convictions. But the prerequisite to properly invoking the 180-day speedy trial time period under R.C. 2941.401 begins with the inmate currently serving a term of imprisonment imposed upon an offense at the time of filing a notice of availability. If an offender has not been convicted and not entered a term of imprisonment, R.C. 2941.401 is inapplicable. In that case, the offender's statutory rights are protected and governed by R.C. 2945.71 et seq.

{¶ 7} At the time Coleman filed his notice of availability in the underlying case, he was not serving a term of imprisonment. Coleman was confined in lieu of bail pending resolution of several felony cases. See Appellant's Brief, fn. 2 (noting the four cases that were then "pending" and the cause of Coleman's local "incarceration"). Nothing in the record establishes that Coleman was serving a term of imprisonment imposed in any of the cases in January 2019. His notice of availability was premature, but importantly, R.C. 2941.401 could not be invoked to start the running of the 180-day period thereunder. Coleman's speedy trial rights were governed by R.C. 2945.71 et seq., which provides that a person such as Coleman must be brought to trial "[w]ithin ninety days after the person's arrest or the service of summons," except, if applicable, that period may be extended for "any period during which the accused is unavailable for hearing or trial, by reason of other criminal proceedings against him, within or outside the state * * *." R.C. 2945.71(B)(2) ; 2945.72(A).

{¶ 8} Nevertheless, the foregoing analysis was not the basis of the trial court's decision. The city's sole contention is that even if R.C. 2941.401 applied to Coleman's situation, he did not cause the notice of availability to be served on the prosecutor, nor did he properly seek the certificate of custody through the warden. Under well-settled law, in order to avail himself of R.C. 2941.401, the "inmate must properly complete and forward all necessary information and documents to the warden [or superintendent having custody of the inmate] for processing as prescribed by the statute." State v. Gill , 8th Dist. Cuyahoga No. 82742, 2004-Ohio-1245, 2004 WL 528449, ¶ 17. R.C. 2941.401 "imposes no duty on the state until such time as the incarcerated defendant provides the statutory notice," and the 180-day period does not commence until the prosecutor and the court receive the notice of availability. Hairston , 101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471, at ¶ 20.

{¶ 9} Instead of erring toward the letter of the statute and initiating the statutory process by forwarding the necessary information to the warden or superintendent of the institution where he was held, Coleman simply executed a boilerplate document that he personally sent to the municipal court — a document that omits both an identifying case caption and a certificate of service.² The first time the prosecutor knew or should have known of the notice of...