[Cite as State v. Hayes, 2018-Ohio-2749.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 27730 : v. : Trial Court Case No. 2016-CR-3861/7 : CLINTON HAYES : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 13th day of July, 2018.
MATHIAS H. HECK, JR., by MICHAEL SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
J. DAVID TURNER, Atty. Reg. No. 0017456, P.O. Box 291771, 101 Southmoor Circle NW, Kettering, Ohio 45429 Attorney for Defendant-Appellant
.............
TUCKER, J. -2-
{¶ 1} Defendant-appellant, Clinton Hayes, was indicted on fourteen felonies as
follows: one count of engaging in a pattern of corrupt activity, a first degree felony; three
counts of trafficking in heroin, felonies of the fourth degree; three counts of possession of
heroin, felonies of the fourth degree; two counts of trafficking in heroin, felonies of the fifth
degree; two counts of possession of heroin, felonies of the fifth degree; possession of
heroin, a third degree felony; possession of cocaine, a fifth degree felony, and one count
of having weapons while under disability, a third degree felony.
{¶ 2} Hayes filed a motion to suppress evidence seized as the result of the
execution of a search warrant at 921 Geneva Road, Dayton. The trial court overruled
the suppression motion.
{¶ 3} The parties, thereafter, engaged in plea negotiations resulting in a plea
agreement. Hayes, under the agreement, pleaded guilty to the amended lesser included
offense of attempted engaging in a pattern of corrupt activity, a second degree felony,
three counts of trafficking in heroin, fourth degree felonies, one count of possession of
heroin, a third degree felony, and one count of having weapons while under disability, a
third degree felony. The remaining counts were dismissed, and it was agreed that Hayes
would serve a three-year prison term with no possibility that judicial release would reduce
the prison term. Though this was the agreement, the prosecuting attorney stated at the
plea hearing, “[i]n this case * * * Hayes does have some prior F1 or 2s [referring to
convictions involving first or second degree felonies] so a prison term would be mandatory
anyway.” This statement prompted no response from Hayes or his trial counsel.
{¶ 4} The trial court, after the plea agreement was set forth, engaged Hayes in a -3-
Crim.R. 11 colloquy resulting in the trial court’s acceptance of Hayes’s guilty pleas to the
indicated offenses. The trial court, as part of the plea discussion, asked Hayes if he
understood “that based upon the mandatory nature of some counts and based upon the
agreement there will be a prison sentence[.]” Hayes responded, “[Y]es sir.” The plea
form, in addition, stated “Agreed 3 years * * * no judicial release[,]” but the box indicating
that the prison term was mandatory was not marked.
{¶ 5} The trial court, at the sentencing hearing, imposed the agreed upon, and
mandatory, three-year prison term, with the trial court informing Hayes that the prison
term was mandatory. Hayes received 56 days of jail time credit. Hayes, thereafter, filed
a motion requesting recalculation of the jail time credit, and this motion was overruled.
The trial court also informed Hayes at the sentencing hearing that he was not eligible for
shock incarceration and intensive program prison, with this ineligibility being reflected in
Hayes’s termination entry. This appeal followed, and we appointed counsel.
{¶ 6} Appellate counsel filed a brief under the authority of Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) stating that he could “find no error by the
trial court prejudicial to the rights of [Hayes] which may be argued * * * on appeal.”
Appellate counsel, consistent with his duties under Anders, set forth three potential
assignments of error as follows: (1) whether the trial court erred “by failing to explicitly
label [Hayes’s] sentence for attempt[ed] engaging in a pattern of corrupt activity as
[requiring a] mandatory [prison term]”; (2) whether the trial court erred by not granting
Hayes approximately 161 days of jail time credit “for the time [he] was incarcerated in
prison by reason of a sentence previously imposed for a different offense”; and (3)
whether the trial court’s findings disapproving shock incarceration and intensive program -4-
prison were “inadequate.” Appellate counsel, in the concluding section of the Anders
brief, requested leave to withdraw as Hayes’s appellate attorney.
{¶ 7} In an order filed on March 30, 2018, we informed Hayes of the Anders filing
and further informed him of his right to file a pro se brief within sixty days of March 30.
Hayes has not filed a brief.
{¶ 8} Consistent with our duty under Anders, we have carefully reviewed the
potential assignments of error articulated by the Anders brief. The potential assignments
of error are discussed below in the order they were discussed in the Anders brief.
{¶ 9} Turning first to the trial court’s “failure” to “explicitly label” Hayes’s sentence
as a sentence which requires a mandatory prison term, we determine that this failure does
not raise an issue that has potential appellate merit. Hayes, based upon his guilty plea
to a second degree felony and his previous conviction for a second degree felony
possession of heroin offense, had to be sentenced to prison under R.C. 2929.13(F)(6).
However, the parties, irrespective of the R.C. 2929.13(F)(6) mandate, agreed to a three-
year prison term with no possibility of judicial release. It was, given this, not incumbent
upon the trial court to inform Hayes that a prison term was mandatory. Nonetheless,
Hayes, at both the plea and sentencing hearings, was so informed, and he indicated he
understood. The fact that the plea form box indicating that a prison term is mandatory
was not checked does not create a potentially meritorious argument that Hayes’s plea
was less than knowing and voluntary or otherwise deficient in any fashion.
{¶ 10} We also find no potentially meritorious appellate argument regarding
Hayes’s receipt of 56 days of jail time credit. This potential assignment of error suggests
that Hayes may, instead of 56 days, be entitled to approximately 161 days of credit based -5-
upon his concurrent prison incarceration in another case with his pre-trial incarceration in
this case. A defendant has an equal protection right to credit against any prison term for
any period of pre-trial incarceration, with this equal protection right being codified at R.C.
2967.191. State v. Nagy, 2d Dist. Greene No. 2003-CA-21, 2003-Ohio-6903, ¶ 3 - 4. A
defendant, however, is not entitled to jail time credit for pre-trial incarceration that is
concurrent with incarceration resulting from a separate, distinct offense. Id. at ¶ 4, citing
State ex rel. Jordan v. Haskins, 131 Ohio App.3d 791, 723 N.E.2d 1116 (7th Dist. 1998).
Hayes’s suggestion, given the above discussion, that he may be entitled in this case to
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[Cite as State v. Hayes, 2018-Ohio-2749.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 27730 : v. : Trial Court Case No. 2016-CR-3861/7 : CLINTON HAYES : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 13th day of July, 2018.
MATHIAS H. HECK, JR., by MICHAEL SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
J. DAVID TURNER, Atty. Reg. No. 0017456, P.O. Box 291771, 101 Southmoor Circle NW, Kettering, Ohio 45429 Attorney for Defendant-Appellant
.............
TUCKER, J. -2-
{¶ 1} Defendant-appellant, Clinton Hayes, was indicted on fourteen felonies as
follows: one count of engaging in a pattern of corrupt activity, a first degree felony; three
counts of trafficking in heroin, felonies of the fourth degree; three counts of possession of
heroin, felonies of the fourth degree; two counts of trafficking in heroin, felonies of the fifth
degree; two counts of possession of heroin, felonies of the fifth degree; possession of
heroin, a third degree felony; possession of cocaine, a fifth degree felony, and one count
of having weapons while under disability, a third degree felony.
{¶ 2} Hayes filed a motion to suppress evidence seized as the result of the
execution of a search warrant at 921 Geneva Road, Dayton. The trial court overruled
the suppression motion.
{¶ 3} The parties, thereafter, engaged in plea negotiations resulting in a plea
agreement. Hayes, under the agreement, pleaded guilty to the amended lesser included
offense of attempted engaging in a pattern of corrupt activity, a second degree felony,
three counts of trafficking in heroin, fourth degree felonies, one count of possession of
heroin, a third degree felony, and one count of having weapons while under disability, a
third degree felony. The remaining counts were dismissed, and it was agreed that Hayes
would serve a three-year prison term with no possibility that judicial release would reduce
the prison term. Though this was the agreement, the prosecuting attorney stated at the
plea hearing, “[i]n this case * * * Hayes does have some prior F1 or 2s [referring to
convictions involving first or second degree felonies] so a prison term would be mandatory
anyway.” This statement prompted no response from Hayes or his trial counsel.
{¶ 4} The trial court, after the plea agreement was set forth, engaged Hayes in a -3-
Crim.R. 11 colloquy resulting in the trial court’s acceptance of Hayes’s guilty pleas to the
indicated offenses. The trial court, as part of the plea discussion, asked Hayes if he
understood “that based upon the mandatory nature of some counts and based upon the
agreement there will be a prison sentence[.]” Hayes responded, “[Y]es sir.” The plea
form, in addition, stated “Agreed 3 years * * * no judicial release[,]” but the box indicating
that the prison term was mandatory was not marked.
{¶ 5} The trial court, at the sentencing hearing, imposed the agreed upon, and
mandatory, three-year prison term, with the trial court informing Hayes that the prison
term was mandatory. Hayes received 56 days of jail time credit. Hayes, thereafter, filed
a motion requesting recalculation of the jail time credit, and this motion was overruled.
The trial court also informed Hayes at the sentencing hearing that he was not eligible for
shock incarceration and intensive program prison, with this ineligibility being reflected in
Hayes’s termination entry. This appeal followed, and we appointed counsel.
{¶ 6} Appellate counsel filed a brief under the authority of Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) stating that he could “find no error by the
trial court prejudicial to the rights of [Hayes] which may be argued * * * on appeal.”
Appellate counsel, consistent with his duties under Anders, set forth three potential
assignments of error as follows: (1) whether the trial court erred “by failing to explicitly
label [Hayes’s] sentence for attempt[ed] engaging in a pattern of corrupt activity as
[requiring a] mandatory [prison term]”; (2) whether the trial court erred by not granting
Hayes approximately 161 days of jail time credit “for the time [he] was incarcerated in
prison by reason of a sentence previously imposed for a different offense”; and (3)
whether the trial court’s findings disapproving shock incarceration and intensive program -4-
prison were “inadequate.” Appellate counsel, in the concluding section of the Anders
brief, requested leave to withdraw as Hayes’s appellate attorney.
{¶ 7} In an order filed on March 30, 2018, we informed Hayes of the Anders filing
and further informed him of his right to file a pro se brief within sixty days of March 30.
Hayes has not filed a brief.
{¶ 8} Consistent with our duty under Anders, we have carefully reviewed the
potential assignments of error articulated by the Anders brief. The potential assignments
of error are discussed below in the order they were discussed in the Anders brief.
{¶ 9} Turning first to the trial court’s “failure” to “explicitly label” Hayes’s sentence
as a sentence which requires a mandatory prison term, we determine that this failure does
not raise an issue that has potential appellate merit. Hayes, based upon his guilty plea
to a second degree felony and his previous conviction for a second degree felony
possession of heroin offense, had to be sentenced to prison under R.C. 2929.13(F)(6).
However, the parties, irrespective of the R.C. 2929.13(F)(6) mandate, agreed to a three-
year prison term with no possibility of judicial release. It was, given this, not incumbent
upon the trial court to inform Hayes that a prison term was mandatory. Nonetheless,
Hayes, at both the plea and sentencing hearings, was so informed, and he indicated he
understood. The fact that the plea form box indicating that a prison term is mandatory
was not checked does not create a potentially meritorious argument that Hayes’s plea
was less than knowing and voluntary or otherwise deficient in any fashion.
{¶ 10} We also find no potentially meritorious appellate argument regarding
Hayes’s receipt of 56 days of jail time credit. This potential assignment of error suggests
that Hayes may, instead of 56 days, be entitled to approximately 161 days of credit based -5-
upon his concurrent prison incarceration in another case with his pre-trial incarceration in
this case. A defendant has an equal protection right to credit against any prison term for
any period of pre-trial incarceration, with this equal protection right being codified at R.C.
2967.191. State v. Nagy, 2d Dist. Greene No. 2003-CA-21, 2003-Ohio-6903, ¶ 3 - 4. A
defendant, however, is not entitled to jail time credit for pre-trial incarceration that is
concurrent with incarceration resulting from a separate, distinct offense. Id. at ¶ 4, citing
State ex rel. Jordan v. Haskins, 131 Ohio App.3d 791, 723 N.E.2d 1116 (7th Dist. 1998).
Hayes’s suggestion, given the above discussion, that he may be entitled in this case to
jail time credit for pre-trial incarceration that occurred concurrently with incarceration in a
separate case is without arguable appellate merit.
{¶ 11} Hayes’s final suggested assignment of error is that the trial court’s findings
disapproving shock incarceration and intensive program prison were not adequate. A
defendant, under R.C. 5120.032(B)(2)(a) (intensive program prison) and R.C.
5120.031(A)(4) (shock incarceration), is not eligible for either intensive program prison or
shock incarceration if his prison term includes a sentence for, among other disqualifying
offenses, a second degree felony. As discussed, Hayes’s prison term included a three-
year sentence for attempted engaging in a pattern of corrupt activity, a second degree
felony. Given this, any argument that the trial court’s intensive program prison and shock
incarceration findings were inadequate is frivolous.
{¶ 12} In addition, we have performed our duty under Anders to conduct an
independent review of the entire record. In doing so, we have thoroughly reviewed the
Anders brief, the trial court docket, the various filings made in the trial court, the plea and
sentencing transcripts, and the sentencing entries and orders. This review has not -6-
revealed any potentially meritorious appellate issues.
{¶ 13} Having found no non-frivolous issue for appellate review, counsel’s motion
to withdraw is granted, and the judgment of the Montgomery County Court of Common
Pleas is affirmed.
WELBAUM, P.J. and HALL, J., concur.
Copies mailed to:
Mathias H. Heck, Jr. Michael Scarpelli J. David Turner Clinton Hayes Hon. Timothy N. O’Connell