[Cite as State v. Golden, 2016-Ohio-7525.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals Nos. L-15-1283 L-15-1287 Appellee Trial Court No. CR0201302361 v.
Sherman Golden DECISION AND JUDGMENT
Appellant Decided: October 28, 2016
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Veronica M. Murphy, for appellant.
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Sherman Golden, appeals the January 22, 2015
judgment of the Lucas County Court of Common Pleas which following his admission to
a community control violation, sentenced him to three years in prison for his conviction
for having a weapon while under a disability. Appellant also appeals the trial court’s
denial of his motion for jail-time credit. For the reason set forth herein, we affirm. {¶ 2} The history of this case is as follows. Appellant was initially indicted on
May 9, 2013, and charged with having a weapon while under a disability, R.C.
2923.13(A)(2), a third-degree felony. The indictment was dismissed and on August 12,
2013, appellant was recharged in the instant matter.
{¶ 3} During the course of the dismissed and current proceedings, appellant was
represented by four different attorneys. According to appellate counsel, in the dismissed
matter appellant had retained counsel. Counsel was appointed in this matter and less than
one month later, counsel requested leave to withdraw and the second counsel was
appointed. Subsequent counsel filed a motion to suppress and a motion for transcription
of an earlier hearing. On October 29, 2014, appellant, pro se, filed a motion to dismiss
the indictment or removal of his attorney; he also requested a change of venue.
{¶ 4} On October 30, 2014, appellant was appointed a third attorney and his
motion to dismiss was denied. Counsel filed a motion to suppress. On December 11,
2014, appellant withdrew the motion and entered a guilty plea to having a weapon while
under a disability, the sole count in the indictment. Appellant was sentenced to
community control which was revoked on January 21, 2015; a three-year imprisonment
term was then imposed. He was given credit for 213 days of incarceration.
{¶ 5} On September 24, 2015, appellant filed a pro se motion for jail-time credit
requesting he be awarded an additional 118 days. Specifically, appellant claimed that he
was not given credit for the time from April 26, 2013 through August 21, 2013, when he
was held in the Lucas County Jail. On September 30, 2015, the trial court denied the
motion.
2. {¶ 6} Two appeals were commenced in this court, a delayed direct appeal of
appellant’s conviction and sentence and an appeal, pro se, of the denial of appellant’s
motion for jail time credit. The appeals were consolidated and appointed counsel filed a
single brief in the matter. In her brief, under procedures announced in Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel indicates that
she has thoroughly examined the record, discussed the case with appellant, and is unable
to find meritorious grounds for appeal. Following Anders procedure, appellate counsel
filed a brief setting forth potential grounds for appeal and also filed a request to withdraw
as counsel.
{¶ 7} Counsel notified appellant of her inability to find meritorious grounds for
appeal and provided appellant with copies of both the Anders brief and her motion to
withdraw. Counsel advised appellant of his right to file his own appellate brief.
Appellant has not filed an additional brief.
{¶ 8} In her Anders brief, counsel has asserted two potential assignments of error:
Potential First Assignment of Error: Ineffective Assistance of
Counsel
Potential Second Assignment of Error: Sentencing
{¶ 9} In appellant’s counsel’s first potential assignment of error she notes that
appellant’s multiple attorneys filed various pretrial motions and his final attorney was
able to effectuate a plea deal with the state which resulted in a community control
sentence for a third-degree felony. Further, counsel aided in arranging treatment for
appellant’s mental health and substance abuse issues.
3. {¶ 10} To establish ineffective assistance of counsel, an appellant must
demonstrate “(1) deficient performance of counsel, i.e., performance falling below an
objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable
probability that, but for counsel’s errors, the proceeding’s result would have been
different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204,
citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). “A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. at 694. When, however, a defendant enters a guilty plea or no contest
plea, he waives the right to claim that he was prejudiced by constitutionally ineffective
counsel, unless the conduct complained of is shown to have prevented the defendant from
making a knowing and voluntary plea. State v. Barnett, 73 Ohio App.3d 244, 248-249,
596 N.E.2d 1101 (2d Dist.1991).
{¶ 11} Reviewing the record of the proceedings below, we find that appellant’s
counsel represented him vigorously and was able to secure a non-prison sanction with
treatment. At the plea hearing, appellant indicated that he was satisfied with counsel’s
representation. Accordingly, we reject appellant’s counsel’s first potential assignment of
error.
{¶ 12} In appellant’s counsel’s second potential assignment of error, she
incorporates appellant’s argument that the court miscalculated his jail-time credit. We
first note that appellant’s appeal of the court’s denial of his motion was from a final and
appealable order because the court’s alleged error was clerical in nature. See State v.
McLain, 6th Dist. Lucas No. L-07-1164, 2008-Ohio-481.
4. {¶ 13} R.C. 2967.191 provides that the department of rehabilitation and correction
must 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 * * *.” A trial court is charged with calculating the number of
days to be credited. See State v. Fair, 136 Ohio App.3d 184, 736 N.E.2d 82 (3d
Dist.2000). However, it is a defendant’s burden to show the error in a trial court’s
calculation of jail-time credit. State v. Smith, 10th Dist. Franklin Nos. 15AP-209, 15AP-
214, 2015-Ohio-4465, ¶ 13, citing State v. Britton, 3d Dist. Defiance No. 4-12-13, 2013-
Ohio-1008, ¶ 16.
{¶ 14} Appellant filed this motion, pro se, and it was denied in the trial court.
Appellant contends that because he was incarcerated from April 26, 2013 through
August 21, 2013, the total number of days should be 331, not 213. Counsel asserts,
however, that appellant could not have been incarcerated on the days he claims because it
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[Cite as State v. Golden, 2016-Ohio-7525.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals Nos. L-15-1283 L-15-1287 Appellee Trial Court No. CR0201302361 v.
Sherman Golden DECISION AND JUDGMENT
Appellant Decided: October 28, 2016
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Veronica M. Murphy, for appellant.
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Sherman Golden, appeals the January 22, 2015
judgment of the Lucas County Court of Common Pleas which following his admission to
a community control violation, sentenced him to three years in prison for his conviction
for having a weapon while under a disability. Appellant also appeals the trial court’s
denial of his motion for jail-time credit. For the reason set forth herein, we affirm. {¶ 2} The history of this case is as follows. Appellant was initially indicted on
May 9, 2013, and charged with having a weapon while under a disability, R.C.
2923.13(A)(2), a third-degree felony. The indictment was dismissed and on August 12,
2013, appellant was recharged in the instant matter.
{¶ 3} During the course of the dismissed and current proceedings, appellant was
represented by four different attorneys. According to appellate counsel, in the dismissed
matter appellant had retained counsel. Counsel was appointed in this matter and less than
one month later, counsel requested leave to withdraw and the second counsel was
appointed. Subsequent counsel filed a motion to suppress and a motion for transcription
of an earlier hearing. On October 29, 2014, appellant, pro se, filed a motion to dismiss
the indictment or removal of his attorney; he also requested a change of venue.
{¶ 4} On October 30, 2014, appellant was appointed a third attorney and his
motion to dismiss was denied. Counsel filed a motion to suppress. On December 11,
2014, appellant withdrew the motion and entered a guilty plea to having a weapon while
under a disability, the sole count in the indictment. Appellant was sentenced to
community control which was revoked on January 21, 2015; a three-year imprisonment
term was then imposed. He was given credit for 213 days of incarceration.
{¶ 5} On September 24, 2015, appellant filed a pro se motion for jail-time credit
requesting he be awarded an additional 118 days. Specifically, appellant claimed that he
was not given credit for the time from April 26, 2013 through August 21, 2013, when he
was held in the Lucas County Jail. On September 30, 2015, the trial court denied the
motion.
2. {¶ 6} Two appeals were commenced in this court, a delayed direct appeal of
appellant’s conviction and sentence and an appeal, pro se, of the denial of appellant’s
motion for jail time credit. The appeals were consolidated and appointed counsel filed a
single brief in the matter. In her brief, under procedures announced in Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel indicates that
she has thoroughly examined the record, discussed the case with appellant, and is unable
to find meritorious grounds for appeal. Following Anders procedure, appellate counsel
filed a brief setting forth potential grounds for appeal and also filed a request to withdraw
as counsel.
{¶ 7} Counsel notified appellant of her inability to find meritorious grounds for
appeal and provided appellant with copies of both the Anders brief and her motion to
withdraw. Counsel advised appellant of his right to file his own appellate brief.
Appellant has not filed an additional brief.
{¶ 8} In her Anders brief, counsel has asserted two potential assignments of error:
Potential First Assignment of Error: Ineffective Assistance of
Counsel
Potential Second Assignment of Error: Sentencing
{¶ 9} In appellant’s counsel’s first potential assignment of error she notes that
appellant’s multiple attorneys filed various pretrial motions and his final attorney was
able to effectuate a plea deal with the state which resulted in a community control
sentence for a third-degree felony. Further, counsel aided in arranging treatment for
appellant’s mental health and substance abuse issues.
3. {¶ 10} To establish ineffective assistance of counsel, an appellant must
demonstrate “(1) deficient performance of counsel, i.e., performance falling below an
objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable
probability that, but for counsel’s errors, the proceeding’s result would have been
different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204,
citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). “A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. at 694. When, however, a defendant enters a guilty plea or no contest
plea, he waives the right to claim that he was prejudiced by constitutionally ineffective
counsel, unless the conduct complained of is shown to have prevented the defendant from
making a knowing and voluntary plea. State v. Barnett, 73 Ohio App.3d 244, 248-249,
596 N.E.2d 1101 (2d Dist.1991).
{¶ 11} Reviewing the record of the proceedings below, we find that appellant’s
counsel represented him vigorously and was able to secure a non-prison sanction with
treatment. At the plea hearing, appellant indicated that he was satisfied with counsel’s
representation. Accordingly, we reject appellant’s counsel’s first potential assignment of
error.
{¶ 12} In appellant’s counsel’s second potential assignment of error, she
incorporates appellant’s argument that the court miscalculated his jail-time credit. We
first note that appellant’s appeal of the court’s denial of his motion was from a final and
appealable order because the court’s alleged error was clerical in nature. See State v.
McLain, 6th Dist. Lucas No. L-07-1164, 2008-Ohio-481.
4. {¶ 13} R.C. 2967.191 provides that the department of rehabilitation and correction
must 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 * * *.” A trial court is charged with calculating the number of
days to be credited. See State v. Fair, 136 Ohio App.3d 184, 736 N.E.2d 82 (3d
Dist.2000). However, it is a defendant’s burden to show the error in a trial court’s
calculation of jail-time credit. State v. Smith, 10th Dist. Franklin Nos. 15AP-209, 15AP-
214, 2015-Ohio-4465, ¶ 13, citing State v. Britton, 3d Dist. Defiance No. 4-12-13, 2013-
Ohio-1008, ¶ 16.
{¶ 14} Appellant filed this motion, pro se, and it was denied in the trial court.
Appellant contends that because he was incarcerated from April 26, 2013 through
August 21, 2013, the total number of days should be 331, not 213. Counsel asserts,
however, that appellant could not have been incarcerated on the days he claims because it
includes the date, April 30, 2013, when he was caught possessing a firearm.
{¶ 15} Reviewing the record before us, we find no evidence that the trial court
erred in its calculation of appellant’s jail credit. First, as counsel correctly states and
appellant admitted during his plea hearing, the offense at issue took place on April 30,
2013, thus, appellant could not have been incarcerated on that date. Further, the first
indictment was dismissed on June 10, 2013, and appellant was re-indicted on August 12,
2013. Accordingly, appellant’s counsel’s second potential assignment of error is not
well-taken.
5. {¶ 16} Upon our own independent review of the record as required by Anders, we
find no other grounds for a meritorious appeal. This appeal is, therefore, found to be
without merit and is wholly frivolous. Appellant’s counsel’s motion to withdraw is found
well-taken and is hereby granted. The judgments of the Lucas County Court of Common
Pleas are affirmed. Further, appellant’s pro se motion for judicial notice is moot and not
well-taken. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.
The clerk is ordered to serve all parties with notice of this decision.
Judgments affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ James D. Jensen, P.J. JUDGE CONCUR. _______________________________ JUDGE
6.