[Cite as State v. Collins, 2016-Ohio-3301.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J. -vs- Case No. 15-CA-19 ROY E. COLLINS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Common Pleas Court, Case No. 11-CR-455
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: June 3, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GREGG MARX DAVID A. SAMS Prosecuting Attorney PO Box 40 W. Jefferson, Ohio 43162 By: ANDREA GREEN Assistant Prosecuting Attorney Fairfield County, Ohio 239 W. Main Street, Ste. 101 Lancaster, Ohio 43130 Fairfield County, Case No. 15-CA-19 2
Hoffman, J.
{¶1} Defendant-appellant Roy E. Collins appeals the February 6, 2015 Judgment
Entry entered by the Fairfield County Court of Common Pleas overruling his motion for
jail time credit. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} On December 15, 2011, via Judgment Entry of Plea, Appellant entered a
plea of guilty to Three Counts of Forgery, in violation of R.C. 2913.31(A)(3), specified as
Counts Three, Four and Five in the Indictment, and the trial court accepted the plea,
convicting Appellant of three counts of Forgery, in violation of R.C. 2913.31(A)(3), felonies
of the third degree.
{¶3} On December 15, 2011, the trial court, via Judgment Entry of Sentence,
sentenced Appellant to eleven months in prison each on the three counts of forgery. The
Judgment Entry of Sentence reads, in pertinent part
It is therefore ORDERED that the Defendant serve a stated prison
term in the Correctional Reception Center of 11 months as to Count Three,
serve a prison term of 11 months as to Count Four, serve a prison terms
[sic] of 11 months as to Count Five, and pay the costs of prosecution. The
Court ordered that said sentences are to be served consecutively to each
other. The Court finds consecutive sentencing is appropriate because the
charges were for different dates and different acts and is necessary to
punish the Defendant and protect the public. The Court finds consecutive
1 A rendition of the underlying facts is unnecessary for resolution of this appeal. Fairfield County, Case No. 15-CA-19 3
sentencing is not disproportionate to purposes and principles of felony
sentencing given Defendant’s criminal history, consecutive sentencing is
necessary.
{¶4} Accordingly, Appellant was ordered to serve a total prison term of thirty-
three months. Appellant was credited with 85 days for his time spent in the Fairfield
County Jail as of December 15, 2011, and all additional days served while awaiting
transportation to the state penal institution.
{¶5} On June 22, 2012, the trial court granted Appellant judicial release and
placed Appellant on community control after serving 185 days in prison.
{¶6} On May 9, 2014, the State filed a motion to revoke community control on
the grounds Appellant had violated certain terms of community control.
{¶7} On May 28, 2014, Appellant was arrested for violation of the terms of his
community control, and held without bond pending further hearing.
{¶8} On June 19, 2014, the trial court found Appellant had violated the terms of
his community control as alleged in the motion to revoke. The trial court revoked
Appellant's community control as to “one” of the three sentences and ordered it into effect
for eleven months. The court then went on to order the eleven month sentence on Count
Three into execution, but the other two sentences (Count Four and Count Five) remained
suspended for community control upon Appellant's release. Appellant did not appeal the
trial court's sentence. Appellant was admitted into the Correctional Reception Center on
July 22, 2014.
{¶9} The Bureau of Sentence Computation issued a Notice of New Calculation
of Sentence on August 6, 2014, indicating appellant had acquired 33 days of jail credit Fairfield County, Case No. 15-CA-19 4
toward his 11 month sentence as to the third count (Count Three). The jail credit was
accrued from the time of the revocation hearing until Appellant was transported to the
state penal institution.
{¶10} On December 18, 2014, Appellant moved the trial court to award him
additional jail time credit toward the eleven month sentence he was currently serving on
the third count (Count Three). The state responded it was the trial court's intention on
June 19, 2014, to order into execution the entire eleven month sentence as to Count
Three, and for the jail time previously credited toward Appellant's other counts to remain
suspended for community control.
{¶11} On February 6, 2015, the trial court held a non-oral hearing on Appellant's
motion for jail time credit, and overruled the motion.
{¶12} Appellant filed a notice of appeal, assigning as error,
{¶13} “I. THE TRIAL COURT ERRED IN NOT AWARDING DEFENDANT-
APPELLANT JAIL TIME CREDIT AGAINST HIS SENTENCE.”2
{¶14} In the sole assignment of error Appellant argues he is entitled to credit for
the time he was jailed in lieu of bail against his sentence, pursuant to R.C. 2967.191 and
State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856. Appellant maintains the record
demonstrates he served a total of 299 days in jail/prison related to his sentence, but was
not awarded those days as credit against the sentence.
2 We note Appellant’s Assignment of Error is most likely moot as he would have served his entire sentence on Count One at the time of this appeal. However, we find the argument ripe for review as the trial court withheld Appellant’s jail time credit as to Counts Four and Five which remained suspended for community control. In the event Appellant’s community control would be revoked on Count Four or Count Five, this issue will have been addressed on the merits. Fairfield County, Case No. 15-CA-19 5
{¶15} R.C. 2967.191 provides,
The department of rehabilitation and correction shall reduce the
stated prison term of a prisoner or, if the prisoner is serving a term for which
there is parole eligibility, the minimum and maximum term or the parole
eligibility date of the 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, confinement for examination to determine the prisoner's
competence to stand trial or sanity, confinement while awaiting
transportation to the place where the prisoner is to serve the prisoner's
prison term, as determined by the sentencing court under division
(B)(2)(g)(i) of section 2929.19 of the Revised Code, and confinement in a
juvenile facility. The department of rehabilitation and correction also shall
reduce the stated prison term of a prisoner or, if the prisoner is serving a
term for which there is parole eligibility, the minimum and maximum term or
the parole eligibility date of the prisoner by the total number of days, if any,
that the prisoner previously served in the custody of the department of
rehabilitation and correction arising out of the offense for which the prisoner
was convicted and sentenced.
{¶16} Appellant argues he served a number of days in both jail and prison on
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[Cite as State v. Collins, 2016-Ohio-3301.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J. -vs- Case No. 15-CA-19 ROY E. COLLINS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Common Pleas Court, Case No. 11-CR-455
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: June 3, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GREGG MARX DAVID A. SAMS Prosecuting Attorney PO Box 40 W. Jefferson, Ohio 43162 By: ANDREA GREEN Assistant Prosecuting Attorney Fairfield County, Ohio 239 W. Main Street, Ste. 101 Lancaster, Ohio 43130 Fairfield County, Case No. 15-CA-19 2
Hoffman, J.
{¶1} Defendant-appellant Roy E. Collins appeals the February 6, 2015 Judgment
Entry entered by the Fairfield County Court of Common Pleas overruling his motion for
jail time credit. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} On December 15, 2011, via Judgment Entry of Plea, Appellant entered a
plea of guilty to Three Counts of Forgery, in violation of R.C. 2913.31(A)(3), specified as
Counts Three, Four and Five in the Indictment, and the trial court accepted the plea,
convicting Appellant of three counts of Forgery, in violation of R.C. 2913.31(A)(3), felonies
of the third degree.
{¶3} On December 15, 2011, the trial court, via Judgment Entry of Sentence,
sentenced Appellant to eleven months in prison each on the three counts of forgery. The
Judgment Entry of Sentence reads, in pertinent part
It is therefore ORDERED that the Defendant serve a stated prison
term in the Correctional Reception Center of 11 months as to Count Three,
serve a prison term of 11 months as to Count Four, serve a prison terms
[sic] of 11 months as to Count Five, and pay the costs of prosecution. The
Court ordered that said sentences are to be served consecutively to each
other. The Court finds consecutive sentencing is appropriate because the
charges were for different dates and different acts and is necessary to
punish the Defendant and protect the public. The Court finds consecutive
1 A rendition of the underlying facts is unnecessary for resolution of this appeal. Fairfield County, Case No. 15-CA-19 3
sentencing is not disproportionate to purposes and principles of felony
sentencing given Defendant’s criminal history, consecutive sentencing is
necessary.
{¶4} Accordingly, Appellant was ordered to serve a total prison term of thirty-
three months. Appellant was credited with 85 days for his time spent in the Fairfield
County Jail as of December 15, 2011, and all additional days served while awaiting
transportation to the state penal institution.
{¶5} On June 22, 2012, the trial court granted Appellant judicial release and
placed Appellant on community control after serving 185 days in prison.
{¶6} On May 9, 2014, the State filed a motion to revoke community control on
the grounds Appellant had violated certain terms of community control.
{¶7} On May 28, 2014, Appellant was arrested for violation of the terms of his
community control, and held without bond pending further hearing.
{¶8} On June 19, 2014, the trial court found Appellant had violated the terms of
his community control as alleged in the motion to revoke. The trial court revoked
Appellant's community control as to “one” of the three sentences and ordered it into effect
for eleven months. The court then went on to order the eleven month sentence on Count
Three into execution, but the other two sentences (Count Four and Count Five) remained
suspended for community control upon Appellant's release. Appellant did not appeal the
trial court's sentence. Appellant was admitted into the Correctional Reception Center on
July 22, 2014.
{¶9} The Bureau of Sentence Computation issued a Notice of New Calculation
of Sentence on August 6, 2014, indicating appellant had acquired 33 days of jail credit Fairfield County, Case No. 15-CA-19 4
toward his 11 month sentence as to the third count (Count Three). The jail credit was
accrued from the time of the revocation hearing until Appellant was transported to the
state penal institution.
{¶10} On December 18, 2014, Appellant moved the trial court to award him
additional jail time credit toward the eleven month sentence he was currently serving on
the third count (Count Three). The state responded it was the trial court's intention on
June 19, 2014, to order into execution the entire eleven month sentence as to Count
Three, and for the jail time previously credited toward Appellant's other counts to remain
suspended for community control.
{¶11} On February 6, 2015, the trial court held a non-oral hearing on Appellant's
motion for jail time credit, and overruled the motion.
{¶12} Appellant filed a notice of appeal, assigning as error,
{¶13} “I. THE TRIAL COURT ERRED IN NOT AWARDING DEFENDANT-
APPELLANT JAIL TIME CREDIT AGAINST HIS SENTENCE.”2
{¶14} In the sole assignment of error Appellant argues he is entitled to credit for
the time he was jailed in lieu of bail against his sentence, pursuant to R.C. 2967.191 and
State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856. Appellant maintains the record
demonstrates he served a total of 299 days in jail/prison related to his sentence, but was
not awarded those days as credit against the sentence.
2 We note Appellant’s Assignment of Error is most likely moot as he would have served his entire sentence on Count One at the time of this appeal. However, we find the argument ripe for review as the trial court withheld Appellant’s jail time credit as to Counts Four and Five which remained suspended for community control. In the event Appellant’s community control would be revoked on Count Four or Count Five, this issue will have been addressed on the merits. Fairfield County, Case No. 15-CA-19 5
{¶15} R.C. 2967.191 provides,
The department of rehabilitation and correction shall reduce the
stated prison term of a prisoner or, if the prisoner is serving a term for which
there is parole eligibility, the minimum and maximum term or the parole
eligibility date of the 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, confinement for examination to determine the prisoner's
competence to stand trial or sanity, confinement while awaiting
transportation to the place where the prisoner is to serve the prisoner's
prison term, as determined by the sentencing court under division
(B)(2)(g)(i) of section 2929.19 of the Revised Code, and confinement in a
juvenile facility. The department of rehabilitation and correction also shall
reduce the stated prison term of a prisoner or, if the prisoner is serving a
term for which there is parole eligibility, the minimum and maximum term or
the parole eligibility date of the prisoner by the total number of days, if any,
that the prisoner previously served in the custody of the department of
rehabilitation and correction arising out of the offense for which the prisoner
was convicted and sentenced.
{¶16} Appellant argues he served a number of days in both jail and prison on
Count Three, all of which should have been applied toward his sentence when his
community control was revoked on June 19, 2014. Fairfield County, Case No. 15-CA-19 6
{¶17} The State maintains the trial court’s Judgment Entry of Sentence indicates
the trial court intended Appellant to serve the third count of forgery sentence (Count
Three), a term of eleven months, in its entirety as a result of his violation of the terms of
community control. The court further intended any and all jail time previously served to
be credited to the other two remaining counts of forgery (Counts Four and Five) should
Appellant serve a term of imprisonment on those counts. Accordingly, the State maintains
the Bureau of Sentence Computation properly reduced Appellant's eleven month term by
the number of days Appellant was confined between the date of the sentencing entry and
the date the offender was committed to the department. Appellant was granted 33 days
of credit for the time spent in the Fairfield County Jail after his revocation hearing on June
19, 2014, until he was transported to the Correctional Reception Center on July 22, 2014.
{¶18} We disagree with the State’s argument herein, and hold logic, as well as
fairness, must prevail in construing the order of consecutive sentences when a trial court
does not clearly and concisely provide otherwise. We find the trial court's sentencing
journal entry dictates how a sentence is to be served. State v. Kish 8th Dist. 99895, 2014
Ohio 699, See, e.g., State v. Holdcroft, 137 Ohio St.3d 526, 2013–Ohio–5014, ¶ 2–3, 10;
State v. Holdcroft, 2012–Ohio–3066, 973 N.E.2d 334 (3d Dist.), ¶ 4; State v. Cvijetinovic,
8th Dist. No. 99316, 2013-Ohio-5121.
{¶19} In Kish, supra, the Eighth District held,
It is imperative a trial court's sentencing journal entry is unambiguous
and clearly sets forth the sequence in which consecutive sentences are to
be served, especially when sentencing on multiple cases or counts. Merely
stating that the cases or counts are to run consecutive to or with each other Fairfield County, Case No. 15-CA-19 7
is insufficient because it does not indicate which sentence is to be served
first. Kish,supra, See generally Cvijetinovic.
{¶20} In the case sub judice, we find the trial court’s original Judgment Entry of
Sentence does not unambiguously or clearly set froth the sequence the consecutive
sentences are to be served. In such absence, we find the most logical reading of the
entry is that the sentence on Count Three was to be served first.
{¶21} While it may have been the trial court’s intention on June 19, 2014, to
impose an additional eleven months for Appellant’s community control violation, such
does not alter the fact Appellant had already served the majority of the sentence on Count
Three. Because the trial court’s July 16, 2014 Entry specifically ordered the original
sentence of eleven months on Count Three into execution, we find the trial court erred in
not granting Appellant’s motion for additional jail time credit.
{¶22} Appellant’s assignment of error is sustained. Fairfield County, Case No. 15-CA-19 8
{¶23} The February 11, 2015 Entry Overruling Defendant’s Motion for Jail Time
Credit is reversed and the matter remanded to that court to order jail time credit in
accordance with this Opinion and the law.
By: Hoffman, J.
Farmer, P.J. and
Baldwin, J. concur