State v. Nichols

2020 Ohio 4596

Opinion

[Cite as State v. Nichols, 2020-Ohio-4596.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2020-CA-2 : v. : Trial Court Case No. 2017-CR-38 : JAMES DELBERT NICHOLS, SR. : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 25th day of September, 2020.

SAMUEL ADAM USMANI, Atty. Reg. No. 0097223, Assistant Prosecuting Attorney, Champaign County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee

MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, 210 West Main Street, Troy, Ohio 45373 Attorney for Defendant-Appellant

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WELBAUM, J. -2-

{¶ 1} Defendant-appellant, James Delbert Nichols, Sr., appeals from a judgment

of the Champaign County Court of Common Pleas denying his post-sentence motion for

correction of jail-time credit. For the reasons outlined below, the judgment of the trial

court will be affirmed.

Facts and Course of Proceedings

{¶ 2} On March 2, 2017, a Champaign County grand jury returned a 16-count

indictment charging Nichols with four counts of burglary, two counts of receiving stolen

property, two counts of having weapons while under disability, two counts of grand theft

of a firearm, two counts of theft from a person in a protected class, one count of theft of

drugs, one count of petty theft, one count of aggravated possession of drugs, one count

of aggravated trafficking in drugs, with five firearm specifications.

{¶ 3} On March 15, 2017, Nichols appeared before the trial court for his

arraignment hearing. During this hearing, the trial court found that Nichols was indigent

and continued the hearing for two days so that Nichols could contact his public defender.

The trial court also placed Nichols on a personal recognizance bond with special

conditions. The special conditions included a requirement that Nichols abide by a curfew

and have no contact with the victims of his alleged offenses.

{¶ 4} On March 17, 2017, Nichols and his defense counsel appeared before the

trial court for the second arraignment hearing. At this hearing, Nichols pled not guilty to

all the charges set forth in the indictment. The trial court accepted Nichols’ not guilty

plea, scheduled the matter for a case scheduling conference, and continued Nichols’

personal recognizance bond as it was previously set. However, on April 3, 2017, the -3-

trial court modified Nichols’ personal recognizance bond to include the special condition

that he remain on electronically-monitored house arrest (“EMHA”). According to the

modification, Nichols was only allowed to leave his home to go to court, his attorney’s

office, and certain medical appointments.

{¶ 5} Between April 7, 2017 and June 28, 2017, Nichols filed several motions

requesting the trial court to modify the terms of his bond. In each motion, Nichols

requested the trial court to permit him to attend a specific event including church services,

an MRI for his shoulder, chiropractic appointments, and follow-up treatment for his

shoulder. The trial court granted each of Nichols’ motions.

{¶ 6} On June 5, 2017, Nichols entered a plea agreement with the State whereby

he agreed to plead guilty to two counts of burglary, one count of aggravated trafficking in

drugs, and one count of grand theft of a firearm with a one-year firearm specification. In

exchange for Nichols’ guilty plea, the State agreed to dismiss the remaining charges and

firearm specifications and to recommend that a presentence investigation be conducted

prior to sentencing. The parties also agreed that Nichols was guilty of grand theft of a

firearm under the theory of complicity. The trial court accepted Nichols’ guilty plea and

scheduled the matter for sentencing.

{¶ 7} On July 10, 2017, the trial court sentenced Nichols to a total, aggregate term

of 66 months in prison and ordered Nichols to pay court costs and $329.99 in restitution.

Shortly after the sentencing hearing, the trial court realized that it had neglected to impose

a sentence for Nichols’ aggravated trafficking offense. As a result, the trial court

continued the sentencing hearing to the next day.

{¶ 8} On July 11, 2017, the trial court resentenced Nichols. In doing so, the trial -4-

court imposed the same sentences it had imposed the day before along with an 8-month

prison term for aggravated trafficking in drugs. The 8-month prison term was ordered to

run concurrently to the other sentences, thus Nichols’ total, aggregate sentence was still

66 months in prison.

{¶ 9} Prior to the trial court’s imposing its sentence, Nichols requested that the trial

court award him jail-time credit for the time he was on EMHA. The trial court denied

Nichols’ request and explained that: “[w]hen you are placed on house arrest and

electronic monitoring as part of the pretrial condition of bond, it is not to be considered

jail-time credit.” Sentencing Tr. (July 11, 2017), p. 3. Nichols did not object to the trial

court’s ruling at the sentencing hearing. Nichols also did not appeal his conviction.

{¶ 10} On December 18, 2019, over two years after he was sentenced, Nichols

filed a “Motion to Correct Jail-Time Credit,” which again requested the trial court to award

him jail-time credit for the time he was on EMHA. The trial court denied Nichols’ motion

on December 20, 2019.

{¶ 11} Nichols now appeals from the denial of his post-sentence motion to correct

jail-time credit, raising a single assignment of error for review.

Assignment of Error

{¶ 12} Under his assignment of error, Nichols argues that the trial court erred in

denying his post-sentence motion for correction of jail-time credit. Specifically, Nichols

claims that his motion should have been granted because, while on EMHA, he was

“confined” as required for receiving jail-time credit under R.C. 2967.191(A). We

disagree. -5-

{¶ 13} R.C. 2967.191(A) governs jail-time credit and provides that:

The department of rehabilitation and correction shall reduce the

prison term of a prisoner, as described in division (B) of this section, 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, confinement for

examination to determine the prisoner’s competence to stand trial or sanity,

confinement while awaiting transportation to the place where the prisoner is

to serve the prisoner's prison term, as determined by the sentencing court

* * * and confinement in a juvenile facility. * * *

{¶ 14} Recently, the Supreme Court of Ohio analyzed the language of R.C.

2967.191(A) and explained that “[b]y providing an illustrative list of the types of

confinement that qualify for a jail-time credit, the General Assembly has demonstrated

that it intends that credit should not be given for all types of confinement.” State v. Reed,

Ohio Slip Opinion No. 2020-Ohio-4255, __ N.E.3d __, ¶ 15. More specifically, the

Supreme Court held that: “The legislature has expressed the intent that credit is to be

given only for the time the defendant is confined in a public or private facility.

Confinement in a personal residence, therefore, does not qualify under the statute.” Id.

at ¶ 16. In so holding, the Supreme Court determined that jail-time credit does not apply

to post-conviction EMHA. Id. at ¶ 18.

{¶ 15} This court has similarly held “that pretrial EMHA as a condition of bail does

not constitute confinement or detention for purposes of awarding jail-time credit.”

(Citation omitted.) State v. Cox, 2d Dist. Montgomery No. 27276, 2017-Ohio-2606, ¶ 5. -6-

Accord State v. Boscarino, 2d Dist. Montgomery No. 28253, 2019-Ohio-3917, ¶ 11-12;

State v. Johnson, 2d Dist. Montgomery No. 27937, 2018-Ohio-4142, ¶ 21 (“trial courts

may not treat a defendant’s electronically-monitored home confinement, imposed as a

condition of bail, as tantamount to being held in jail in lieu of bail for purposes of allocating

jail-time credit”); State v. Bennett, 2d Dist. Greene No. 2014-CA-17, 2014-Ohio-4102, ¶ 7

(“electronic monitoring as a condition of bond did not constitute ‘confinement’ for purposes

of jail-time credit”).

{¶ 16} Although Nichols acknowledges this court’s prior holdings on the EMHA/jail-

time credit issue, he asks this court to abandon its well-established precedent in favor of

finding that the plain meaning of the term “confinement” in R.C. 2967.191(A)

encompasses pretrial EMHA. We, however, decline Nichols’ offer. We will instead

follow the Supreme Court of Ohio’s recent decision in Reed and continue to adhere to the

prior decisions of this court.

{¶ 17} We also note that the issue raised in Nichols’ post-sentence motion for

correction of jail-time credit is barred by the doctrine of res judicata. “Under the doctrine

of res judicata, ‘any issue that could have been raised on direct appeal,’ and yet was not,

‘is not subject to review in subsequent proceedings.’ ” State v. Morgan, 2d Dist.

Montgomery No. 27774, 2018-Ohio-3198, ¶ 30, quoting State v. Saxon, 109 Ohio St.3d

176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 16. Since the enactment of former R.C.

2929.19(B)(2)(g)(iii), which is now codified as R.C. 2929.19(B)(2)(h)(iii), 1 “[t]he

determination of whether res judicata bars an appellant’s post-sentencing jail time credit

claim turns * * * on whether an appellant did or did not raise the same jail time credit issue

1 See 2018 Ohio Laws File 157 (Am. Sub. S.B. 201). -7-

at sentencing.” State v. Ragland, 2018-Ohio-3292, 118 N.E.3d 1051, ¶ 15 (2d Dist.),

citing former R.C. 2929.19(B)(2)(g)(iii) and State v. Thompson, 147 Ohio St.3d 29, 2016-

Ohio-2769, 59 N.E.3d 1264, ¶ 11-12. “If the appellant did not [raise the jail-time credit

issue at sentencing], the doctrine of res judicata does not apply, despite the failure to

raise the issue on the direct appeal of the conviction and sentence.” Id., citing

Thompson at ¶ 12. (Other citation omitted.)

{¶ 18} In this case, Nichols admits that he raised the issue of receiving jail-time

credit for the time he was on EMHA at his July 11, 2017 sentencing hearing. See

Sentencing Tr. (July 11, 2017), p. 2-3. Since Nichols sought jail-time credit for the time

he was on EMHA at his sentencing hearing, and he did not appeal from the trial court’s

decision denying him said credit, the doctrine of res judicata bars him from raising the

same request for jail-time credit two years later in his post-sentence motion for correction

of jail-time credit.

{¶ 19} For all the foregoing reasons, Nichols’ sole assignment of error is overruled.

Conclusion

{¶ 20} Having overruled Nichols’ assignment of error, the judgment of the trial court

is affirmed.

DONOVAN, J. and HALL, J., concur. -8-

Copies sent to:

Samuel Adam Usmani Michael J. Scarpelli Hon. Nick A. Selvaggio