State v. Jacquillard

2013 Ohio 4778

Opinion

[Cite as State v. Jacquillard, 2013-Ohio-4778.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-130021 TRIAL NO. B-0700868 Plaintiff-Appellee, : O P I N I O N. vs. :

SEAN C. JACQUILLARD, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Sentences Vacated in Part and Cause Remanded for Resentencing

Date of Judgment Entry on Appeal: October 30, 2013

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman Curan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

The Farrish Law Firm and Michaela M. Stagnaro, for Defendant-Appellant.

Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

SYLVIA S. HENDON, Presiding Judge.

{¶1} Defendant-appellant Sean Jacquillard has appealed from the trial

court’s entry revoking his community control and imposing sentence. Because the

trial court failed to make the necessary findings before imposing consecutive

sentences, failed to properly inform Jacquillard of the potential consequences he

faced for a violation of his postrelease-control obligations, and failed to properly

consider whether Jacquillard was entitled to credit for time served while

incarcerated in Florida, we vacate in part the sentences imposed and remand this

cause for resentencing.

Procedural History

{¶2} Jacquillard pled guilty to two counts of nonsupport of dependants,

pursuant to R.C. 2919.21, in September of 2007. The trial court sentenced

Jacquillard to a five-year period of community control. The court further informed

Jacquillard that it would impose a sentence of 12 months’ incarceration for each

offense, to be served consecutively, if Jacquillard violated his community control.

{¶3} In April of 2010, Jacquillard was found guilty of violating his

community control. The trial court terminated Jacquillard’s community control and

imposed an aggregate sentence of 24 months’ imprisonment. But the court granted

Jacquillard a 90-day stay before the sentence took effect. Jacquillard absconded

during that period. In November of 2012, Jacquillard was arrested in Florida. After

Jacquillard was returned to Ohio, the trial court conducted another sentencing

hearing. It imposed a sentence of 12 months’ imprisonment for each offense, to be

served consecutively. And it granted Jacquillard jail-time credit for 28 days served

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while he awaited sentencing. But the court declined to grant Jacquillard credit for

time served while incarcerated in Florida.

Sentencing

{¶4} In his first assignment of error, Jacquillard argues that the trial court

erred in the imposition of sentence.

{¶5} He first contends that the trial court erred by sentencing him to a

period of incarceration, rather than extending his community control. R.C.

2929.15(B)(1) provides that when an offender violates a provision of his or her

community control, the trial court may impose a longer period of community control

under the same sanctions, may order a more restrictive sanction of community

control, or may sentence the offender to a term of imprisonment. We find no error

in the trial court’s decision to incarcerate Jacquillard, rather than to continue his

community control. Jacquillard absconded from the court’s jurisdiction, and the

trial court had ample justification to find that Jacquillard was not amenable to

community control.

{¶6} Jacquillard next contends that the trial court erred by imposing

consecutive sentences without making the requisite findings under R.C. 2929.14.

Jacquillard is correct. Pursuant to R.C. 2929.14(C)(4), a trial court must make

various findings before imposing consecutive sentences. The court is not required to

use talismanic words when making these findings, but it must be clear from the

record that the court engaged in the required statutory analysis. State v. Alexander,

1st Dist. Hamilton Nos. C-110828 and C-110829, 2012-Ohio-3349, ¶ 16. Here, the

trial court failed to make the findings provided for in R.C. 2929.14(C)(4).

Consequently, we sustain in part Jacquillard’s assignment of error. We vacate the

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trial court’s imposition of consecutive sentences and remand this cause for the court

to consider the relevant criteria before imposing sentence.

{¶7} Jacquillard further argues that the trial court erred by failing to

properly inform him regarding postrelease control. When imposing sentence, the

trial court informed Jacquillard that he would be subject to a three-year period of

postrelease control upon being released from prison. The trial court further told

Jacquillard that if he violated his postrelease control, he would be returned to prison

for anywhere from “zero to three years.” This latter information was not accurate.

{¶8} R.C. 2967.28(F) discusses the imposition of sentence for a postrelease-

control violation. It provides that the imposed period of incarceration for each

violation “shall not exceed nine months, and the maximum cumulative prison term

for all violations under this division shall not exceed one-half of the stated prison

term originally imposed upon the offender as part of this sentence.” R.C.

2967.28(F)(3). Although the trial court incorrectly informed Jacquillard at the

sentencing hearing regarding the length of time that may be imposed for a

postrelease-control violation, both the plea form signed by Jacquillard and the trial

court’s sentencing entry correctly reflect the statutory language.

{¶9} In State v. Brown, this court discussed what type of action by the trial

court constituted sufficient notification to a defendant regarding postrelease control.

State v. Brown, 1st Dist. Hamilton Nos. C-020162, C-020163, and C-020164, 2002-

Ohio-5983. We held that postrelease-control notification requires some verbal

exchange between the trial court and the defendant, and that the court may not rely

solely on notification language contained in a sentencing entry, which is typically

never seen by the defendant. Id. at ¶ 27. We acknowledged that notification

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language contained on a plea form, a form seen and signed by the defendant, would

be sufficient when coupled with a verbal dialogue between the court and the

defendant ensuring that the defendant understands the postrelease-control language

contained on the plea form and the potential consequences for a violation. Id. at ¶

29.

{¶10} Following our review of the record, we find that the facts of this case

do not comply with the type of notification required by Brown. Although the plea

form signed by Jacquillard contained the correct language regarding postrelease

control, the court did not comply with the second part of the notification

requirement. While it attempted a verbal dialogue with Jacquillard, that dialogue

contained incorrect information about the potential length of imprisonment

Jacquillard faced for a violation of postrelease control. We cannot say that the

court’s verbal exchange ensured that Jacquillard understood the postrelease-control

language contained on the plea form. When informing a defendant about the

consequences of a postrelease-control violation, a trial court is not required to read

the statutory language verbatim. But it must ensure that it correctly informs the

defendant about the required information. We sustain in part Jacquillard’s

assignment of error, and remand this cause for the trial court to correctly inform

Jacquillard of his postrelease-control obligations and the consequences for violating

those obligations.

{¶11} Jacquillard last contends in this assignment of error that the trial court

erred in failing to give him credit for time served while incarcerated in Florida and

awaiting extradition and transport to Ohio.

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{¶12} R.C. 2967.191 provides that a defendant’s 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

confinement in lieu of bail while awaiting trial.” The trial court granted Jacquillard

credit for time spent in the local jail prior to trial, but declined to grant him credit for

time incarcerated in Florida. In so concluding, the court stated that “[t]he statute

says I can give credit for the transportation if I want to, but I’m only required to give

credit back to the time he makes it back to my jurisdiction.” The court cited the

embarrassment and inconvenience that Jacquillard had caused the court as its

reason for denying credit for the time that Jacquillard was incarcerated in Florida.

{¶13} The trial court’s statement was not an accurate reflection of the law.

R.C. 2967.191 requires that a defendant be given credit for any time that the

defendant was incarcerated related to the offense for which he was convicted and

sentenced. This includes time incarcerated in another jurisdiction while awaiting

extradition for that offense. State v. Painter, 11th Dist. Ashtabula No. 2009-A-0016,

2009-Ohio-4929, ¶ 28. The record in this case does not reflect the amount of days

that Jacquillard was incarcerated in Florida. Nor does it reflect whether the Florida

incarceration was related solely to the Ohio charges for nonsupport of defendants, or

whether Jacquillard had been arrested on independent charges. If Jacquillard’s

incarceration in Florida was precipitated by his arrest on the nation-wide capias

issued by the trial court, and no other charges were brought against him, then he is

entitled to credit for time served in that jurisdiction while awaiting extradition. We

hold that the trial court erred in denying Jacquillard credit for his time incarcerated

in Florida while awaiting extradition without determining the reason for that

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incarceration. On remand, the trial court must determine the reason for

Jacquillard’s incarceration in Florida and the length of that incarceration, and it

must credit Jacquillard for that time if required by R.C. 2967.191.

{¶14} The first assignment of error is sustained in part and overruled in part.

Ineffective Assistance

{¶15} In his second assignment of error, Jacquillard contends that his trial

counsel was ineffective for failing to object to the aforementioned sentencing issues.

To establish ineffective assistance, a defendant must demonstrate that his counsel’s

performance was deficient and that the defendant was prejudiced by that deficient

performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984).

{¶16} We do not find counsel’s performance to be ineffective. First, the

record clearly indicates that the court considered giving Jacquillard credit for the

time that he was incarcerated in Florida, but ultimately declined to do so. We cannot

find that counsel failed to bring this issue to the court’s attention. Nor was counsel

ineffective for failing to have argued that the trial court failed to make the requisite

findings before imposing consecutive sentences. Counsel had no opportunity to raise

this argument during the sentencing hearing, because trial courts are not required to

make these findings on the record and may instead fill out a felony-sentencing

worksheet when imposing consecutive sentences. We last consider counsel’s failure

to object to the trial court’s incorrect instruction regarding postrelease control. We

cannot find counsel to have been ineffective on these grounds.

{¶17} Jacquillard’s second assignment of error is overruled.

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Conclusion

{¶18} Jacquillard’s first assignment of error contending that the trial court

erred in the imposition of sentence is overruled in part and sustained in part. The

trial court’s imposition of consecutive sentences is vacated. On remand, the trial

court must comply with R.C. 2929.14(C) and make any required findings before

imposing consecutive sentences. It must also correctly inform Jacquillard about his

postrelease-control obligations and the potential consequences for violating those

obligations. Last, the court must determine whether Jacquillard is entitled, under

R.C. 2967.191, to credit for any time incarcerated in Florida.

Judgment accordingly.

HILDEBRANDT and CUNNINGHAM, JJ., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.