State v. Merz

2023 Ohio 582

• Court: Ohio Court of Appeals
• Decided: March 1, 2023
• Docket: C-220085
• Status: Published

Opinion

[Cite as State v. Merz, 2023-Ohio-582.]

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

STATE OF OHIO, : APPEAL NO. C-220085 TRIAL NO. B-1905571 Plaintiff-Appellee, :

: O P I N I O N. VS. :

HERBERT MERZ, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: March 1, 2023

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

CROUSE, Presiding Judge. {¶1} Defendant-appellant Herbert Merz appeals the judgment of the

Hamilton County Court of Common Pleas, challenging his sentence and the

calculation of jail-time credit. Because we agree that court erred when it imposed

Merz’s sentence, we sustain the sole assignment of error, and reverse the judgment of

the trial court.

Factual and Procedural History

{¶2} In October 2019, Merz was charged with attempted rape under R.C.

2923.02(A) and 2907.02, a second-degree felony; gross sexual imposition (“GSI”),

under R.C. 2907.05(A)(1), a fourth-degree felony; and abduction under R.C.

2905.02(B)(2), a third-degree felony.

{¶3} Merz pleaded guilty to GSI and abduction, and the state dismissed the

charge for attempted rape. Merz was sentenced to 18 months’ incarceration on the GSI

count, consecutive to 36 months’ incarceration on the abduction count, for an

aggregate sentence of 54 months’ incarceration, with credit for 149 days served. The

court designated him as a Tier II sex offender.

{¶4} Merz appealed to this court, and argued that his convictions should have

merged as allied offenses. See State v. Merz, 1st Dist. Hamilton No. C-200152, 2021-

Ohio-2093, ¶ 1 (“Merz I”). We agreed, and held that the GSI and abduction offenses

“were not of dissimilar import, were not committed separately, and were not

motivated by a separate animus.” Id. at ¶ 17. Thus, we held that the trial court should

have merged the two offenses and sentenced Merz for only one offense. Id. We

“vacate[d] both sentences and remand[ed] this cause for resentencing so that the state

[could] choose which offense to pursue.” Id. at ¶ 18.

2 OHIO FIRST DISTRICT COURT OF APPEALS

{¶5} In October 2021, the trial court held a resentencing hearing. In

accordance with our remand order, the state elected that it would pursue the offense

of abduction. The court announced a sentence of 36 months’ incarceration on the

abduction count and 18 months’ incarceration on the GSI count. This time, the trial

court ordered that the sentences were to run concurrently, for an aggregate sentence

of three years. The court designated Merz as both a Tier I sex offender on the GSI count

and a Tier II sex offender on the abduction count, while noting that “the more serious

one controls.” The court entered a corresponding sentencing entry, though it was later

corrected by a February 16, 2022 nunc pro tunc entry due to several errors.

{¶6} The nunc pro tunc entry imposed the same term of incarceration as was

announced at the resentencing hearing, with credit for 157 days’ time served and “days

of credit served in the Ohio Department of Corrections.” The entry classified Merz as

a Tier I sex offender for the GSI conviction, and a Tier II sex offender for the abduction

conviction.

{¶7} Merz timely appealed. In one assignment of error, Merz argues that the

trial court erred in resentencing him.

Merger

{¶8} Merz contends that, pursuant to this court’s decision in Merz I, the GSI

and abduction offenses should have merged for sentencing such that the court should

have sentenced him for only one offense and imposed only one sex-offender

classification. The state concedes this portion of the assignment of error.

{¶9} In Merz I, we held that the trial court committed plain error by not

merging the GSI and abduction convictions. Merz I at ¶ 17. We directed the trial court

to sentence Merz for only one offense on remand, as elected by the state. On remand,

3 OHIO FIRST DISTRICT COURT OF APPEALS

the court sentenced Merz for both offenses to be served concurrently and imposed two

sex-offender classifications.

{¶10} “[T]he imposition of concurrent sentences is not the equivalent of

merging allied offenses * * *.” State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658,

71 N.E.3d 234, ¶ 3. Accord State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922

N.E.2d 923, ¶ 31 (“even when the sentences are to be served concurrently, a defendant

is prejudiced by having more convictions than are authorized by law.”); State v.

Anderson, 2012-Ohio-3347, 974 N.E.2d 1236, ¶ 41 (1st Dist.) (“Even when the

sentences imposed for allied offenses are ordered to be served concurrently, a

defendant is prejudiced by having more convictions than are authorized by law.”);

State v. Gilmore, 1st Dist. Hamilton Nos. C-070521 and C-070522, 2008-Ohio-3475,

¶ 16-17 (same).

{¶11} Moreover, sex-offender classification tiers are part of a criminal

sentence. See State v. Lawson, 1st Dist. Hamilton Nos. C-120077 and C-120067, 2012-

Ohio-5281, ¶ 18, citing State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952

N.E.2d 1108, ¶ 10-20. Accord State v. Megarry, 2018-Ohio-4242, 122 N.E.3d 220, ¶

15-16 (4th Dist.) (explaining that “the sex-offender classification is part of the

offender’s criminal sentence.”); State v. Halsey, 2016-Ohio-7990, 74 N.E.3d 915, ¶ 18

(12th Dist.) (same).

{¶12} Because we ordered the trial court on remand to merge the offenses, and

to sentence Merz for only one offense, the trial court erred when it imposed concurrent

sentences and two sex-offender classifications.

4 OHIO FIRST DISTRICT COURT OF APPEALS

Jail-Time Credit

{¶13} Merz also contends that the trial court’s jail-time credit calculation is

incorrect. He suggests that the jail-time credit calculation should include days he

served in the Ohio Department of Rehabilitation and Correction (“ODRC”), in addition

to days served in the local jail. The state responds that it agrees the jail-time calculation

is incorrect, but that jail-time credit does not include days served in the custody of the

ODRC.

{¶14} “Jail-time credit is prescribed by R.C. 2967.191, which authorizes a trial

court to give a defendant credit for the total number of days that he was ‘confined for

any reason arising out of the offense for which [he] was convicted and sentenced * *

*.’ ” State v. Bowden, 1st Dist. Hamilton No. C-140462, 2015-Ohio-3740, ¶ 17, quoting

R.C. 2967.191(A). “The trial court’s failure to properly award jail-time credit is an error

cognizable on direct appeal” and rises to the level of plain error. Bowden at ¶ 18, citing

State v. Hargrove, 1st Dist. Hamilton No. C-120321, 2013-Ohio-1860, ¶ 8-9.

{¶15} However, “prison time and jail time are distinct and different forms of

confinement.” State v. Fisher, 10th Dist. Franklin No. 16AP-402, 2016-Ohio-8501,

¶ 12. The sentencing court is responsible for determining “the amount of time the

offender served locally before being sentenced.” (Emphasis added.) Ohio Adm.Code

5120-2-04(B); see R.C. 2929.19(B)(2)(g)(i) (requiring the sentencing court to

“[d]etermine, 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 * * * .”).

{¶16} Independent of the sentencing court’s duty, the ODRC has an

“obligation to reduce a stated prison term by the number of days an inmate previously

5 OHIO FIRST DISTRICT COURT OF APPEALS

served in DRC’s custody.” Fisher at ¶ 16; State v. Guiser, 9th Dist. Summit No. 29456,

2019-Ohio-5421, ¶ 8 (explaining that a trial court is not responsible for crediting prior

time served in prison); State v. Simpson, 10th Dist. Franklin No. 21AP-52, 2021-Ohio-

4066, ¶ 17-18 (discussing the distinction between prison time and jail time). The order

in the latest sentencing entry that “Defendant is to receive days of credit served in the

Ohio Department of Corrections” seems to reference this shared responsibility.

{¶17} Thus, the trial court did not err by failing to credit Merz for days served

in prison because the ODRC tracks and credits that time. However, the state submits

that the time served is incorrect because Merz has not been given full credit for the

time served between arrest and sentencing, in addition to the time served locally

before resentencing after Merz I. Because both parties agree that the jail-time credit

award is incorrect, and it is unclear on the record before us how many days Merz

served locally in connection with this offense, we sustain this portion of the

assignment of error.

Conclusion

{¶18} Considering the foregoing analysis, we sustain Merz’s sole assignment

of error. Accordingly, we vacate both sentences and remand the cause for resentencing

for the trial court to sentence Merz only on the state’s elected offense of abduction, and

to calculate the appropriate amount of jail-time credit in accordance with the law and

this opinion.

Judgment reversed and cause remanded.

WINKLER, and BOCK, JJ., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.