Opinion
Nos. 99AP-1180; 99AP-1181; 99AP-1182; 99AP-1183; 99AP-1184; 99AP-1185; 99AP-1186; 99AP-1187.
Rendered on June 30, 2000.
APPEAL from the Franklin County Court of Common Pleas.
Ron O'Brien, Prosecuting Attorney, and Amy H. Kulesa, for appellant.
Cortez F. Thorpe, pro se.
OPINION
Cortez F. Thorpe, defendant-appellant, appeals the September 21, 1999 judgment of the Franklin County Court of Common Pleas denying his motion for jail time credit.
On March 8, 1999, appellant plead guilty in four separate cases to receiving stolen property, in violation of R.C. 2913.51. He also plead guilty in one separate case to theft, in violation of R.C. 2913.51. Further, he plead guilty in four separate cases to possession of cocaine, in violation of R.C. 2925.11. The trial court imposed one six-month determinate sentence, seven six-month sentences to be served consecutively, and a six-month sentence to be served concurrently with one of the cases. The court further found that appellant had one hundred forty days of jail credit.
On September 2, 1999, appellant filed a motion for jail time credit, asserting that he did not receive credit for all the time he was held in jail in lieu of bail prior to his conviction and sentence. On September 21, 1999, the trial court issued a decision and entry denying appellant's motion. Appellant appeals the judgment of the trial court, asserting the following assignment of error:
THE TRIAL COURT COMMITTED ERROR IN FAILING AND REFUSING TO INCLUDE IN THE APPELLANT'S RECORD OF CONVICTION THE TOTAL NUMBER OF DAYS HE WAS CONFINED IN THE FRANKLIN COUNTY JAIL CONTRARY TO R.C. § 2949.12 AND IN VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE UNITED STATES CONSTITUTION.
A defendant is entitled by law to have credited to the sentence of incarceration the number of days that he or she was confined prior to conviction and sentence. R.C. 2949.08; 2949.12. On July 1, 1998, Crim.R. 32.2 was amended, and the subdivision requiring the court to forward a statement of the number of days of confinement to which a defendant is entitled by law to have credited to his or her minimum and maximum sentence was deleted. Thus, currently, the only requirement that trial courts follow to calculate the number of days for jail time credit is set forth in Ohio Adm. Code 5120-2-04(B). State v. McComb (June 25, 1999), Montgomery App. No. 99 CA 8, unreported. Although no statute or criminal rule requires trial courts to calculate the number of days of jail time credit, R.C. 2967.191, 2949.08(C), and 2949.12 provide for the mandatory crediting of such time. R.C. 2967.191 provides that a prison term shall 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," including pretrial confinement in lieu of bail, confinement for competency and sanity examinations, and confinement while awaiting transportation to the place for serving the prison term. See, also, R.C. 2949.08(C) and 2949.12. In State v. Herd (Mar. 31, 1999), Montgomery App. No. 17385, unreported, and State v. Reichelderfer (Apr. 30, 1999), Montgomery App. No. 17445, unreported, the appellate court recognized the repeal of the mandatory language of Crim.R. 32.2(D), but encouraged trial courts to continue calculating the number of days served prior to sentencing for the benefit of the Department of Rehabilitation and Correction, which needs such information to fulfill its duty as set forth in R.C. 2967.191.
In the present case, although it is not clear, appellant seems to be requesting that he be credited both with jail time he served while awaiting trial and with jail time he served between sentencing and transportation to the prison. With regard to the credit for jail time served while awaiting trial, the record is insufficient to determine whether appellant received the proper pre-sentence credit. Appellant has failed to file a transcript of the sentencing proceedings, and we are therefore unable to determine if the trial court explained how it calculated the one hundred forty days of jail credit or whether appellant presented any objection or argument on this issue. Appellant also does not adequately explain his method of calculating such credit. Further, we note that appellant did not raise this issue on direct appeal. See State ex rel. Jones v. Judge O'Connor (1999), 84 Ohio St.3d 426; State v. Boggs (Mar. 29, 2000), Lorain App. No. 99CA007358, unreported; State ex rel. Dissette v. Cuyahoga County Sheriff (Mar. 4, 1999), Cuyahoga App. No. 75506, unreported. Therefore, we are unable to determine whether the trial court erred and appellant has failed to satisfy his burden.
With regard to any credit for time served between the sentencing and transportation to prison, the trial court found that it did not have jurisdiction to give jail time credit because jurisdiction to give jail credit after the initial sentencing date rests with the Ohio Department of Rehabilitation and Correction or with the Adult Parole Authority. We agree. "[T]he duty to grant credit for time served in jail `while awaiting transportation to the place where he is to serve his sentence' R.C. 2967.191, rests solely with the adult parole authority." State ex rel. Edwards v. Honorable M. David Reid, Court of Common Pleas, Greene County, Ohio (July 8, 1987), Greene App. No. 87 CA 55, unreported, citing State ex rel. Harrell v. Court of Common Pleas (1979), 58 Ohio St.2d 193. Thus, in the present case, the trial court was under no duty to calculate this credit because such duty rests with the adult parole authority. See id. Therefore, appellant's assignment of error is overruled.
Accordingly, appellant's assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
__________________ BROWN, J.
BRYANT, J., concurs, GREY, J., dissents.
GREY, J., retired, of the Fourth Appellate District, assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution.
The majority opinion analyzes the issue in this case in terms of rights, i.e., whether Thorpe can demonstrate his right to credit for the days of pretrial incarceration. The issue in this case, as I perceive it, involves a question of duty.
It is well-settled that a person who is sentenced to prison is entitled to credit for the days served in pretrial detention. Workman v. Cardwell, (1972), 338 F. Supp. 893. R.C. 2967.191 and its predecessors were designed to implement this constitutional protection.
The rationale for this rule is quite simple. A person with money will make bail while a person without money will not. If both persons are given identical sentences, the reality is that unless the person who did not make bail is given credit for his pretrial time, the poorer person will have served more time than the other. Unequal treatment based on personal wealth is anathema to the Constitution as a denial of equal protection.
The majority opinion recognizes the importance of equal treatment, but, and this is where I disagree, puts the burden of equal protection on the poorer defendant. The majority notes that appellant failed to file a transcript of the sentencing hearing, and as a result, this court is unsure as to whether Thorpe was properly credited with his pretrial time. To me, this merely repeats the problem. People who cannot make bail, the only ones to whom R.C. 2967.191 might apply, probably cannot pay for a transcript either.
There has been a trend in the law over the last decade to treat all criminal matters as a Manichean battle between good and evil, where the sides to an issue are irretrievably at odds with the other. I regret the trend, but in this case, however, there appears to be for all parties an identity of interest in a proper result.
The state has a duty to see to it that just results are obtained, not merely convictions and sentences, so the state has an important interest in seeing that R.C. 2967.191, as with any law, is followed and that Thorpe gets the credit he is entitled to. The trial court, as well as this court, has an important interest in enforcing not only the statute but in upholding the doctrine of equal protection. Thorpe himself has an interest in a proper credit. To be sure, Thorpe's interest is personal, but his personal interest is merely coincident, perhaps even ancillary, with the state's and the courts' interest in doing their duty to follow the law and the Constitution.
This writer is not so naive and I recognize, as does the majority opinion, that Thorpe may be asking for credit to which he is not entitled. The exact number of days is not clear from the record. The brief of appellee State of Ohio is not of much use since rather than telling us how the days were calculated and showing us that Thorpe was properly credited for all time served, it relies solely on procedural objections and obfuscation.
I believe it is the responsibility of the courts to see that all its sentences pass constitutional muster. I believe we have a duty to do so whether or not a defendant objects. Our duty to obey the statute and follow the Constitution cannot be dependent on a defendant's ability to raise the issue. The issue in this case, is after all, merely a bookkeeping matter, less complicated then asking a credit card company for a statement of all charges and all payments. This is a small effort to protect the doctrine of equal protection.
The majority, because it is unsure, affirms. Because I am unsure, I would reverse. I would remand this case to the trial court with the direction that a calculation of the pretrial detention time be made and entered in the record, and that we review that calculation. The issue is this case is not really how many days Thorpe will do in jail. It is about the courts and how we implement our duty to follow the statutes and to uphold the Constitution.
Thus, I dissent.