State v. Berger, L-84-120

• Decision Date: 31 August 1984
• Docket Number: No. L-84-120,L-84-120
• Citation: 477 N.E.2d 473,17 OBR 54,17 Ohio App.3d 8
• Parties: , 17 O.B.R. 54 The STATE of Ohio, Appellee, v. BERGER, Appellant.
• Court: Ohio Court of Appeals

Page 8

17 Ohio App.3d 8

477 N.E.2d 473, 17 O.B.R. 54

The STATE of Ohio, Appellee, v. BERGER, Appellant.

No. L-84-120.

Court of Appeals of Ohio,

Sixth District, Lucas County.

Aug. 31, 1984.

Syllabus by the Court

1. A misdemeanant, sentenced to the county jail or workhouse, shall have his sentence reduced by the number of days equal to the total number of days that he was confined prior to being convicted and sentenced. The trial court shall enter into a misdemeanant's record of conviction the total number of days of confinement served by the misdemeanant prior to conviction and imposition of sentence. The jailer, into whose custody the misdemeanant is delivered with his record of conviction, shall reduce the misdemeanant's sentence by the total number of days specified in said record of conviction. (R.C. 2949.08, construed.)

2. The failure, either of the trial court to specify the total number of days of confinement served pre-conviction in a misdemeanant's record of conviction, or of the jailer to reduce a misdemeanant's sentence in accordance with said record, or both, may be challenged by a writ of mandamus; said writ shall require either the trial court or the jailer, or both, to perform his (their) function(s) under R.C. 2949.08.

3. A motion filed in the trial court, by a misdemeanant, for credit for time served pre-conviction, or a subsequent appeal to the court of appeals assigning as error the trial court's denial thereof, is not the proper vehicle to enforce a misdemeanant's right to have his sentence reduced pursuant to R.C. 2949.08. Mandamus lies to require either the trial court or the jailer, or both, to perform his (their) function(s) under R.C. 2949.08.

Anthony Pizza, Pros. Atty., and George Runner, Toledo, for appellee.

Robert Stoffers, Toledo, for appellant.

DOUGLAS, Judge.

This is an appeal from the Court of Common Pleas of Lucas County, Ohio, wherein James A. Berger, Jr., appellant herein, entered a plea of guilty to the offense of attempted breaking and entering, a first-degree misdemeanor in violation of R.C. 2923.02 and 2911.13(A).

The trial court, on January 5, 1984, accepted appellant's guilty plea and entered judgment against him. On January 25, the trial court sentenced appellant to six months' imprisonment in the Lucas County Correctional Center; appellant was taken into custody on that day. On March 6, 1984, appellant filed a motion in the trial court requesting credit for the time he had served in the county jail prior to entering his guilty plea. Appellant had been found indigent by the trial court and had failed to post bond. He had served fifty-seven days in the county jail prior to entering his guilty plea. The trial court denied appellant's motion on March 28.

On March 30, 1984, appellant filed a notice of appeal in this court, and assigns as error the trial court's denial of his motion for credit for time served. During the pendency of this appeal, appellant completed his sentence and was released from custody. The Supreme Court of Ohio has held the following:

"Where a defendant, convicted of a criminal offense, has * * * completed the sentence for that offense, an appeal is moot when no evidence is offered from which an inference can be drawn that the defendant will suffer some collateral disability or loss of civil rights from such judgment or conviction." (Emphasis added.) State v. Wilson (1975), 41 Ohio St.2d 236, 325 N.E.2d 236 , at the syllabus, certiorari denied (1975), 423 U.S. 936, 96 S.Ct. 295, 46 L.Ed.2d 268.

In the case sub judice, appellant challenges the trial court's denial of credit for time served. This challenge is distinguishable from a challenge to the conviction which underlies appellant's sentence. The length of time served, in and of itself, even though it exceeds the statutory maximum that might be imposed under the sentence, does not give rise to those types of adverse collateral consequences needed to avoid mootness. See, e.g., In re Klepper (1977), 49 Ohio St.2d 211, 361 N.E.2d 427 . We hold, therefore, that appellant has not demonstrated in the record the types of collateral disabilities which are necessary to render his appeal not moot. ¹

We recognize that it is not the function of this court to issue advisory opinions. Furthermore, "it is neither the duty nor the responsibility of the court [of appeals] to answer moot questions." Oakwood v. Sexton (1983), 10 Ohio App.3d 160, 161, 461 N.E.2d 22. We recognize, however, that an important legal issue has been raised by appellant. We present this issue, therefore, for the benefit of any interested readers: "Whether a misdemeanant has the right to have his term of imprisonment reduced by the total number of days that he has served in custody prior to conviction, where he has been found indigent and has failed to post bond, and has been sentenced to the county jail or workhouse to serve his sentence of conviction?" Appellant had received the maximum term of imprisonment for the offense for which he had been convicted.

We turn our attention, first, to R.C. 2945.73. Under division (C) of this section, ² the trial court has the duty to discharge a person accused of a misdemeanor who has served the maximum sentence possible for that offense while awaiting trial. ³ Thus, R.C. 2945.73(C)(1) is more properly a discharging, rather than a crediting, provision. ⁴ In the case sub judice, therefore, R.C. 2945.73 is inapplicable. There remains a question, however, as to whether R.C. 2945.73(C)(1) would apply to appellant even if he had served the statutory maximum possible for this offense prior to conviction. Appellant was originally charged with a felony of the fourth degree, but subsequently entered a plea to a first-degree misdemeanor. R.C. 2945.73(C) addresses only those persons "charged" with misdemeanors. Ostensibly, division (C) would not apply to those "charged" with felonies; however, this division of R.C. 2945.73 has been construed to apply in cases in which "the original charge was a felony and was amended to that of a misdemeanor." Haddox v. Houser (1975), 44 Ohio App.2d 389, 391, 339 N.E.2d 666 .

Next, we move our attention to R.C. 2949.08. Under division (B) of this section, ⁵ while it is not specifically delineated therein, we find that it is the trial court's duty to enter into a person's record of conviction the number of days that person has served prior to his conviction. Under division (C) of R.C. 2949.08, ⁶ it is the jailer's duty to reduce the person's sentence in accordance with the number of days served, and thus specified, in the record. Pursuant to R.C. 2949.08(A), ⁷ the record of conviction, containing the number of days specified as served prior to conviction, must accompany the misdemeanant to his place of confinement. We take notice of the length of time involved in an appeal to this court in light of the statutorily specified maximum term of imprisonment for a first-degree misdemeanor. See R.C. 2929.21(B)(1). We note, further, that this length of time will become even more crucial to a misdemeanant who might appeal to this court for credit for time served prior to conviction in view of the term of imprisonment which may be imposed under R.C. 2929.21(B)(2), (3) or (4). Thus, we note that the issues concerning the trial court's specifying the number of days of confinement by which a misdemeanant's sentence is to be reduced, and/or the jailer's reduction of such sentence, may become moot by reason of the misdemeanant's completion of sentence and discharge. We direct the reader's attention, therefore, to R.C. Chapter 2731: mandamus. ⁸

Third, we call attention to R.C. 2967.191. ⁹ We note, however, that this section applies only to felonies. Even if this court were to "find that there is no logical reason for distinguishing misdemeanor convictions from felony convictions in crediting time in jail prior to sentencing," ¹⁰ Haddox, supra, 44 Ohio App.2d, at 392, 339 N.E.2d 666, R.C. 2967.191 presents two obstacles to its application to misdemeanors. One obstacle which it presents is the setting forth of the duty of the Adult Parole Authority (see R.C. 5149.03); the parole authority is given jurisdiction over state penal and reformatory institutions. See, generally, Ohio Adm.Code Chapter 5120:1-1. As a second obstacle, R.C. 2967.191 applies only to the sentence of a "prisoner," defined in R.C. 2967.01(H) as "a person who is in actual confinement in a state penal or reformatory institution." But, see, R.C. 2929.221(C), wherein a misdemeanant may be "imprisoned in a state penal or reformatory institution pursuant to division (E)(4) of section 2929.41 of the Revised Code." While the duties of the parole authority are clearly set forth under R.C. 2967.191, those of the trial court are not discussed therein. Ohio Adm.Code 5120:1-1-05(H) states that "the sentencing court * * * [is to] specif[y] in its journal entry that the inmate shall receive credit toward both his minimum and maximum sentence by the total number of days the inmate was confined * * *. [S]uch journal entry shall become applicable when the individual becomes confined * * *." But, see, State v. Little (1973), 34 Ohio App.2d 121, 127, 296 N.E.2d 574 ("request for credit should be directed to the parole authorities"). See, also, R.C. 2949.12 (delivery of convict to penal or reformatory institution). Thus, the duties of the trial court are limited. ¹¹

Thus, in summary, we find, first, that it is the trial court's duty to enter into a misdemeanant's record of conviction the number of days that the misdemeanant was confined prior to his conviction. See R.C. 2949.08(B). Second, it is the jailer's (or administrator's or keeper's) duty to reduce the misdemeanant's sentence in accordance with the entry made by the trial court pursuant to division (B) of R.C. 2949.08. See R.C. 2949.08(C). Third, mandamus, rather than a motion in the trial court for credit for time served, is the proper remedy for enforcing a...