State v. Depinet

2022 Ohio 2453

• Court: Ohio Court of Appeals
• Decided: July 18, 2022
• Docket: 17-21-06 & 17-21-14
• Status: Published

Opinion

[Cite as State v. Depinet, 2022-Ohio-2453.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SHELBY COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 17-21-06

v.

JUSTIN P. DEPINET, OPINION

DEFENDANT-APPELLANT.

PLAINTIFF-APPELLEE, CASE NO. 17-21-14

Appeals from Shelby County Common Pleas Court Trial Court No. 20CR000169

Judgments Affirmed

Date of Decision: July, 18. 2022

APPEARANCES:

Jim R. Gudgel for Appellant

Timothy S. Sell for Appellee Case Nos. 17-21-06, 17-21-14

MILLER, J.

{¶1} Defendant-appellant, Justin P. Depinet, appeals two judgments of the

Shelby County Court of Common Pleas: (1) its March 10, 2021 judgment of

sentence; and (2) its May 27, 2021 judgment revoking Depinet’s community control

and imposing a reserved prison sentence. For the reasons that follow, we affirm.

I. Facts & Procedural History

{¶2} On July 16, 2020, the Shelby County Grand Jury returned an indictment

charging Depinet in Count One with aggravated possession of drugs in violation of

R.C. 2925.11(A), a third-degree felony, and in Count Two with possessing criminal

tools in violation of R.C. 2923.24, a fifth-degree felony. On July 23, 2020, Depinet

appeared for arraignment and pleaded not guilty to the counts of the indictment.

{¶3} The matter proceeded to a jury trial on January 26, 2021. On January

27, 2021, the jury found Depinet guilty as charged in the indictment. The trial court

accepted the jury’s guilty verdicts and continued the matter for sentencing after the

preparation of a presentence investigation report.

{¶4} A sentencing hearing was held on March 9, 2021. At the sentencing

hearing, the trial court and Depinet had a memorable discussion regarding potential

sentencing options in relation to Depinet’s extensive drug history and his denial of

a substance abuse problem needing additional drug treatment. Ultimately, Depinet

requested to be placed on community control with the understanding he would be

-2- Case Nos. 17-21-06, 17-21-14

required to complete a treatment program at the W.O.R.T.H Center or another

community-based correctional facility. The trial court sentenced Depinet to five

years of community control as to each count, conditioned in part on his successful

completion of a treatment program as discussed. The trial court made it abundantly

clear to Depinet that if he failed to complete the treatment program, or if he violated

the other conditions of his community control, he could be sentenced to concurrently

serve 36 months in prison on Count One and 12 months in prison on Count Two.

The trial court filed its judgment entry of sentence on March 10, 2021. On March

23, 2021, Depinet filed a notice of appeal. This appeal was assigned case number

17-21-06.

{¶5} On April 19, 2021, the State filed a notice alleging that Depinet had

been unsuccessfully discharged from the W.O.R.T.H. Center, thereby violating the

conditions of his community control. On April 21, 2021, Depinet admitted there

was probable cause for the filing of the community-control violation.

{¶6} On May 26, 2021, the trial court conducted a full hearing on the alleged

community-control violation. At the conclusion of the hearing, the trial court found

Depinet had violated the terms of his community control as alleged in the State’s

notice. The trial court proceeded immediately to sentencing. On the record at the

revocation hearing, the trial court stated that it would be imposing the “original

sentence” rather than continuing Depinet’s community control. (May 26, 2021 Tr.

-3- Case Nos. 17-21-06, 17-21-14

at 54-55). In its May 27, 2021 judgment entry, the trial court ordered Depinet to

serve 36 months in prison on Count One concurrently with 12 months in prison on

Count Two. Furthermore, although jail-time credit was not mentioned at the

revocation hearing, in its judgment entry, the trial court awarded Depinet 79 days

of jail-time credit. On June 10, 2021, Depinet filed a second notice of appeal. This

appeal was assigned case number 17-21-14.

II. Assignments of Error

{¶7} On July 2, 2021, Depinet’s appeals in case numbers 17-21-06 and 17-

21-14 were consolidated for purposes of briefing and argument. He raises the

following two assignments of error for our review:

1. The trial court failed to impose a stated prison sentence at the time of sentencing for the probation violation.

2. The trial court erred in not stating on the record the jail time credit at the time of the community control violation sentencing hearing.

Because they concern related issues, we consider Depinet’s assignments of error

together.

III. Discussion

{¶8} In his assignments of error, Depinet argues that the trial court, after

finding he violated the conditions of his community control, did not properly impose

the reserved prison sentence or award him jail-time credit.

-4- Case Nos. 17-21-06, 17-21-14

A. Standard of Review for Felony Sentences

{¶9} Under R.C. 2953.08(G)(2), an appellate court may reverse a sentence

“only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.

at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus.

B. Depinet’s sentence is not contrary to law.

{¶10} In his assignments of error, Depinet raises two issues relating to his

prison sentence. First, Depinet argues that by referring only to his “original

sentence” at the revocation hearing, the trial court failed to impose a “stated prison

term” as required by statute. In addition, Depinet contends the trial court erred by

failing to calculate his jail-time credit on the record at the revocation hearing.

i. The trial court imposed a stated prison term as required by R.C. 2929.19(B)(2)(a).

{¶11} At a community-control revocation hearing, “the court sentences the

offender anew and must comply with the relevant sentencing statutes.” State v.

Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, ¶ 17. R.C. 2929.19 is among these

-5- Case Nos. 17-21-06, 17-21-14

sentencing statutes. See State v. Heinz, 146 Ohio St.3d 374, 2016-Ohio-2814, ¶ 19.

As relevant here, R.C. 2929.19(B)(2)(a) provides that “if the sentencing court

determines at the sentencing hearing that a prison term is necessary or required, the

court shall * * * [i]mpose a stated prison term * * *.”

{¶12} At Depinet’s revocation hearing, the trial court did not specify the

exact composition or length of the prison sentence it was imposing on Depinet. The

trial court did not specifically restate that it was sentencing Depinet to 36 months in

prison on Count One and 12 months in prison on Count Two. Nor did it say Depinet

would be required to serve these sentences concurrently. Instead, the trial court

stated only that the “original sentence” would be imposed.

{¶13} However, it was abundantly clear at the revocation hearing what the

trial court meant by saying it was ordering Depinet to serve the “original sentence.”

During the revocation hearing, the State requested the trial court revoke Depinet’s

community control and impose the “original sentence,” and Depinet’s counsel, in

arguing for leniency, expressed his understanding that the “original sentence” was

a 36-month sentence. (See May 26, 2021 Tr. at 47-48, 52-54). In addition, the

composition and length of Depinet’s “original sentence” were readily ascertainable

by reference to the trial court’s March 10, 2021 judgment entry of sentence.

-6- Case Nos. 17-21-06, 17-21-14

{¶14} Although the trial court did not parse the sentences for Counts One

and Two at the revocation hearing, the phrase “stated prison term,” as it is used in

R.C. 2929.19(B)(2)(a), is defined in part as the “combination of all prison terms”

imposed by the sentencing court under R.C. 2929.14. See R.C. 2929.01(FF)(1). At

Depinet’s initial sentencing hearing, he was notified that if he violated the

conditions of his community control, he could be sentenced to concurrent terms of

36 months in prison on Count One and 12 months in prison on Count Two. (Mar.

9, 2021 Tr. at 11). Therefore, the “stated prison term” the trial court reserved for

Depinet, i.e., the combination of his potential prison sentences for Counts One and

Two, amounted to 36 months in prison—a prison term equivalent to the “original

sentence” imposed by the trial court at Depinet’s revocation hearing.

{¶15} When the trial court imposed Depinet’s reserved prison sentence at the

revocation hearing, it would have been ideal for the trial court to use more precise

language. But a deviation from best practices does not a statutory violation make.

By imposing Depinet’s “original sentence” at the revocation hearing, the trial court

imposed a combination of prison terms whose composition and exact length were

known clearly to all present. Under the particular facts of this case, the trial court’s

statements were sufficient to impose a “stated prison term” as required by R.C.

2929.19(B)(2)(a).

ii. Although the trial court did not calculate Depinet’s jail-time credit at the revocation hearing, the trial court did not commit plain error.

-7- Case Nos. 17-21-06, 17-21-14

{¶16} The practice of awarding jail-time credit is rooted in the Equal

Protection Clauses of the Ohio and United States Constitutions, though it is now

addressed in Ohio state statute. State v. Carpenter, 4th Dist. Meigs No. 16CA11,

2017-Ohio-9038, ¶ 25. One of these statutes, R.C. 2929.19(B)(2)(g)(i), provides:

[I]f the sentencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall * * *:

***

Determine, notify the offender of, and include in the sentencing entry the total number of days, including the sentencing date but excluding conveyance time, that the offender has been confined for any reason arising out of the offense for which the offender is being sentenced and by which the department of rehabilitation and correction must reduce the definite prison term imposed on the offender as the offender’s stated prison term * * *.

Thus, under R.C. 2929.19(B)(2)(g)(i), trial courts have a duty to calculate jail-time

credit at the time of sentencing. State v. Baker, 8th Dist. Cuyahoga No. 102232,

2015-Ohio-3232, ¶ 14.

{¶17} As noted above, in the trial court’s May 27, 2021 judgment entry,

Depinet was awarded 79 days of jail-time credit. Depinet does not take issue with

the number of days of credit the trial court awarded him. Rather, Depinet argues

that the trial court erred because it did not calculate these 79 days on the record at

the revocation hearing. However, at the revocation hearing, Depinet did not raise

any argument regarding jail-time credit. Nor did he request a hearing under R.C.

-8- Case Nos. 17-21-06, 17-21-14

2929.19(B)(2)(g)(ii), which provides that in calculating the number of days of jail-

time credit, if any, to which the defendant is entitled, “the court shall consider the

arguments of the parties and conduct a hearing if one is requested.” As a result,

Depinet has forfeited all but plain error. Carpenter at ¶ 32; State v. Gordon, 9th

Dist. Summit No. 28331, 2017-Ohio-7147, ¶ 38.

{¶18} We fail to see how Depinet was prejudiced by the trial court’s failure

to calculate jail-time credit at the revocation hearing. The trial court’s judgment

entry states that Depinet is entitled to jail-time credit. Moreover, although Depinet

does not assert in this appeal that the trial court miscalculated the number of days

of jail-time credit to which he is entitled, he is not necessarily foreclosed from

making such an argument at a later date. Indeed, R.C. 2929.19(B)(2)(g)(iii)

provides:

The sentencing court retains continuing jurisdiction to correct any error not previously raised at sentencing in making a determination under [R.C. 2929.19(B)(2)(g)(i)]. The offender may, at any time after sentencing, file a motion in the sentencing court to correct any error made in making a determination under [R.C. 2929.19(B)(2)(g)(i)], and the court may in its discretion grant or deny that motion.

Accordingly, under these circumstances, we do not find the trial court committed

plain error by neglecting to discuss the matter of jail-time credit at the revocation

hearing. See Carpenter at ¶ 32.

{¶19} Depinet’s first and second assignments of error are overruled.

-9- Case Nos. 17-21-06, 17-21-14

IV. Conclusion

{¶20} For the foregoing reasons, Depinet’s assignments of error are

overruled. Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgments of the Shelby County

Court of Common Pleas.

SHAW and WILLAMOWSKI, J.J., concur.

/jlr

-10-