State v. McDonald
| Decision Date | 20 May 2015 |
| Docket Number | C–140305,Nos. C–140303,C–140306.,C–140304,s. C–140303 |
| Citation | 31 N.E.3d 716 |
| Parties | STATE of Ohio, Plaintiff–Appellee, v. Deron McDONALD, Defendant–Appellant. |
| Court | Ohio Court of Appeals |
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman Curran, Assistant Prosecuting Attorney, for Plaintiff–Appellee.
Jeffrey L. Adams, for Defendant–Appellant.
FISCHER
, Judge.
{¶ 1} Defendant-appellant Deron McDonald appeals the trial court's judgments, convicting him of possession of heroin in the case numbered B–1301298 and possession of cocaine in the case numbered B–1401180. McDonald also appeals the trial court's judgments, revoking his community control and imposing concurrent ten-month prison sentences in the cases numbered B–0609239 and B–080724.
{¶ 2} McDonald has not raised any assignments of error challenging his convictions in the cases numbered B–1301298 and B–1401198, so we treat his appeals in those cases, numbered C–140303 and C–140304 respectively, as having been abandoned and we dismiss them. See State v. Thomas, 1st Dist. Hamilton Nos. C–100411
and C100412, 2011-Ohio-1331, 2011 WL 1004919, ¶ 4, citing State v. Benson, 152 Ohio App.3d 495, 2003-Ohio-1944, 788 N.E.2d 693, ¶ 8 (1st Dist.).
{¶ 3} In the case numbered B–080724, McDonald argues that his sentence is contrary to law because the trial court failed to award him any jail-time credit. In the case numbered B–0609239, McDonald argues that the trial court erred in sentencing him for cocaine possession as a fourth-degree felony, because he is entitled to the reduced penalty of a fifth-degree felony. We find both arguments meritorious.
{¶ 4} Under the Ohio Supreme Court's opinion in State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440
, because the trial court had credited McDonald with 158 days of jail-time credit in the case numbered B–0609239, he was entitled to the same number of days of jail-time credit in the case numbered B–080724, since the trial court had ordered the sentences in the two cases to be served concurrently. Further, because McDonald's prison sentence for his community-control violation was not imposed until after the effective date of Am.Sub.H.B. 86, he was entitled to be convicted of a fifth-degree-felony offense under Am.Sub.H.B. 86 and the amended version of R.C. 2925.11 and to be sentenced for a fifth-degree felony.
{¶ 5} On April 16, 2008, McDonald was convicted in the case numbered B0609239 of possession of cocaine, a fourth-degree felony. The trial court sentenced him to community control for three years, which included a condition of 75 days' confinement in the Hamilton County Justice Center, credited him with 75 days, and imposed a one-year driver's license suspension. That same day, McDonald was convicted in the case numbered B–080724 of possession of cocaine, a fourth-degree felony. The trial court sentenced him to community control for three years, which included a condition of 75 days' confinement in the Hamilton County Justice Center, credited him with 75 days, and imposed a one-year driver's license suspension.
{¶ 6} On March 11, 2013, while McDonald was still on community control in the cases numbered B–0609239 and B–080724, he was indicted in the case numbered B1301298 for possession of heroin and possession of cocaine, both fifth-degree felonies. McDonald was released on bond.
{¶ 7} McDonald's indictment in the case numbered B–1301298 caused the probation department to file a complaint on March 21, 2013, charging him with violating the conditions of his community control in the cases numbered B–0609239 and B080724. That same day, the trial court issued warrants for his arrest.
{¶ 8} The following day, when McDonald failed to appear for arraignment in the case numbered B–1301298, the trial court ordered his bond forfeited and issued a capias for his arrest. McDonald was arrested on March 8, 2014, and confined in the Hamilton County Justice Center on all three cases.
{¶ 9} On March 13, 2014, McDonald was charged in the case numbered B1401180, with trafficking in cocaine and possession of cocaine, both fifth-degree felonies. The trial court set all four cases for hearing on April 18, 2014.
{¶ 10} On April 18, 2014, McDonald's counsel informed the trial court that McDonald and the state had reached plea agreements in the cases numbered B–1301298 and B–1401180. In the case numbered B–1301298, McDonald agreed to plead guilty to one count of possession of heroin, a fifth-degree felony, in exchange for the state's dismissal of the cocaine-possession charge. In the case numbered B–1401180, McDonald agreed to plead guilty to one count of possession of cocaine, a fifth-degree felony, in exchange for the state's dismissal of the trafficking charge. Following a thorough Crim.R. 11 colloquy, the trial court accepted McDonald's guilty pleas.
{¶ 11} The trial court then addressed the community-control violations in the cases numbered B–0609239 and B–080724. McDonald waived a probable-cause hearing in both cases, and pleaded no contest to violating the terms and conditions of his community control. The trial court found him guilty. It ordered a presentence-investigation report, and deferred sentencing to a later date.
{¶ 12} On May 14, 2014, the trial court held a sentencing hearing on all four cases. The trial court terminated McDonald's community control and imposed sentences of ten months in prison in the cases numbered B–0609239 and B–080724, to be served concurrently. The trial court imposed sentences of 12 months in prison in the cases numbered B–1301298 and B–1401198, to be served consecutively. The trial court ordered the concurrent ten-month prison sentences in the cases numbered B–0609239 and B–080724 to be served consecutively to the 12–month prison sentences imposed in the cases numbered B–1301298 and B–1401180, for an aggregate sentence of 34 months' incarceration. The trial court awarded McDonald jail-time credit of 158 days in the case numbered B–0609239 and no days of jail-time credit in the case numbered B–080724.
{¶ 13} In his first assignment of error, McDonald argues that his sentence in the case numbered B–080724, appeal numbered C–140305, is contrary to law because the trial court awarded him no jail-time credit. McDonald, however, did not object to the trial court's jail-time-credit award at the time of his sentencing hearing. As a result, he has waived all but plain error for purposes of appeal. See State v. Hargrove, 1st Dist. Hamilton No. C–120321, 2013-Ohio-1860, 2013 WL 1908682, ¶ 9
.
requires the Ohio Department of Rehabilitation and Correction to “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 awaiting trial * * *.” While the Ohio Department of Rehabilitation and Correction must credit a prisoner with his pretrial confinement, it is the trial court's responsibility to calculate the number of days the defendant served prior to being sentenced. State ex rel. Rankin v. Ohio Adult Parole Auth., 98 Ohio St.3d 476, 2003Ohio-2061, 786 N.E.2d 1286, ¶ 7.
{¶ 15} The trial court is required to include the amount of pretrial-confinement credit, commonly referred to as jail-time credit, in the sentencing entry. See State v. Morgan, 1st Dist. Hamilton No. C–140146, 2014-Ohio-5325, 2014 WL 6783082, ¶ 5–6
, citing R.C. 2929.19(B)(2)(g)(i) ; State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, fn. 1. Any error in the trial court's calculation “may be raised by way of a direct appeal * * *.” State ex rel. Rankin at ¶ 10; Hargrove at ¶ 8.
{¶ 16} McDonald argues that because the trial court awarded him 158 days of jail-time credit in the case numbered B–0609239, the trial court was required, under the Ohio Supreme Court's holding in State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440
, to credit him with the same number of days in the case numbered B080724, since it ordered the ten-month prison sentences in these cases to be served concurrently. The state concedes the error.
{¶ 17} In Fugate, the defendant was charged with burglary and theft while he was on community control for a prior conviction for receiving stolen property. Id. at ¶ 2. As a result of his indictment, the probation department filed a motion to revoke his community control. Following a jury trial, Fugate was found guilty of theft and a lesser charge of burglary.
{¶ 18} Prior to sentencing Fugate on the new charges, the trial court held a hearing on the state's motion to revoke his community control. Id. at ¶ 3. At the hearing, Fugate admitted that his new convictions for theft and burglary had violated the conditions of his community control. Id. The trial court imposed a 12–month prison term for the community-control violation, and granted Fugate 213 days of jail-time credit against this term. Id. at ¶ 4. The trial court imposed a two-year sentence for the burglary conviction and a six-month sentence for the theft conviction. Id. at ¶ 5. The trial court awarded Fugate 50 days of jail-time credit toward his theft sentence, but awarded no credit against the burglary sentence. The trial court ordered all three sentences to be served concurrently. Id. at ¶ 5.
{¶ 19} On appeal, Fugate argued that the trial court had violated his equal-protection rights and committed plain error by failing to apply the 213 days of jail-time credit to each of his concurrent prison sentences. Id. at ¶ 6. The Ohio Supreme Court agreed. It noted that “[t]he practice of awarding jail time credit has its roots in the Equal Protection Clauses of the Ohio and United States Constitutions,” and that “the Equal Protection Clause requires that all time spent in any jail prior to trial and committed by [a prisoner who is] unable to make bail because of indigency...
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