Opinion
Case No. 18 CAA 11 0091
05-06-2019
STATE OF OHIO, Plaintiff - Appellee v. WENDY MARSHALL, Defendant - Appellant
APPEARANCES: For Plaintiff-Appellee CAROL HAMILTON O'BRIEN Prosecuting Attorney By: KYLE E. ROHRER Assistant Prosecuting Attorney 140 North Sandusky St., 3rd Floor Delaware, Ohio 43015 For Defendant-Appellant WENDY MARSHALL, pro se #97059 Ohio Reformatory for Women 1479 Collins Avenue Marysville, Ohio 43040
JUDGES: Hon. W. Scott Gwin, P.J. Hon. Craig R. Hon. Earle E. Wise, J.
OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 16-CR-1 03 0132 JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellee CAROL HAMILTON O'BRIEN
Prosecuting Attorney By: KYLE E. ROHRER
Assistant Prosecuting Attorney
140 North Sandusky St., 3rd Floor
Delaware, Ohio 43015 For Defendant-Appellant WENDY MARSHALL, pro se
#97059
Ohio Reformatory for Women
1479 Collins Avenue
Marysville, Ohio 43040 Baldwin, J.
{¶1} Defendant-appellant Wendy Marshall appeals from the October 3, 2018 Judgment Entry of the Delaware County Court of Common Pleas denying her Motion for Jail Time Credit. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On March 9, 2016, the Delaware County Grand Jury indicted appellant on one count of engaging in a pattern of corrupt activity in violation of R.C. 2923.31(A)(1), a felony of the first degree, one count of theft in office in violation of R.C. 2921.41(A)(2), a felony of the third degree, one count of theft in violation of R.C. 2913.02(A)(3), a felony of the fourth degree, one count of money laundering in violation of R.C. 1315.55(A)(4), a felony of the third degree, and one count of securing writings by deception in violation of R.C. 2913.43, a felony of the fourth degree. Appellant also was indicted on one count of passing bad checks in violation of R.C. 2913.11(B), a felony of the fourth degree, one count of telecommunications fraud in violation of R.C. 2913.05(A), a felony of the third degree, two counts of filing incomplete, false and fraudulent returns in violation of R.C. 5747.19, felonies of the fifth degree, and one count of securing writings by deception in violation of R.C. 2913.43, a felony of the fifth degree. The indictment contained four forfeiture specifications.
{¶3} An arrest warrant was issued for appellant on March 9, 2016. Appellant was arrested on the warrant on March 15, 2017 and on March 17, 2016, appellant posted bond. As a condition of bond, appellant was placed on house arrest with GPS monitoring.
{¶4} At her arraignment on March 17, 2016, appellant entered a plea of not guilty to the charges. On October 18, 2016, appellant withdrew her former not guilty plea and entered a plea of guilty to a lesser included offense of engaging in a pattern of corrupt activity, to theft in office, and to one count of secured writings by deception, a fifth degree felony. The remaining charges were dismissed at appellee's request. Pursuant to a Judgment Entry of Prison Sentence filed on December 1, 2016, appellant was sentenced to an aggregate sentence of three years in prison.
{¶5} Thereafter, on September 17, 2018, appellant filed a Motion for Jail Time Credit. Appellant, in her motion, alleged that she was entitled to jail time credit for the time that she spent on electronically monitored house arrest for the period from March 17, 2016 to November 28, 2016. Appellee filed a reply to the motion on October 1, 2018. Pursuant to a Judgment Entry filed on October 3, 2018, the trial court denied appellant's motion. The trial court found that appellant's motion was untimely and that there is no jail time credit for pretrial GPS monitoring.
{¶6} Appellant now raises the following assignments of error on appeal:
{¶7} "I. THE TRIAL COURT ERRED [IN] A DECISION DENYING THE APPELLANT'S REQUEST FOR JAIL TIME CREDIT."
{¶8} "II. THE TRIAL COURT ERRED IN GRANTING (SIC) THE APPELLANT (SIC) MOTION FOR JAIL TIME CREDIT FOR TIME SERVED ON ELECTRONICALLY MONITOR (SIC) HOUSE ARREST ON THE BASIS THE STATE OF OHIO SAYS IT IS UNTIMELY FILED."
I, II
{¶9} Appellant, in her two assignments of error, argues that the trial court erred in denying her request for jail time credit for the time that she spent on electronically monitored house arrest.
{¶10} We must first address the timeliness of appellant's motion. Appellee, in its reply to appellant's motion, alleged that the motion was untimely because it should have been requested at the time of sentencing on December 1, 2016. The trial court, in its October 3, 2018 Entry, found, in part, that appellant's motion was "untimely by almost two years."
{¶11} A defendant is no longer required to contest a trial court's calculation of his jail-time credit in a direct appeal of his conviction; even if no appeal is pursued, the issue can still be asserted in a post-judgment motion. State v. Smith, 11th Dist. Lake No. 2016-L-107, 2017-Ohio-4124, 2017 WL 2426690, ¶ 11. "R.C. 2929.19(B)(2)(g)(iii) allows an offender 'at any time after sentencing, [to] file a motion in the sentencing court to correct any error made in making a determination under division (B)(2)(g)(i) of this section.' " Id. See, also, State v. Thompson, 147 Ohio St.3d 29, 2016-Ohio-2769, 59 N.E.3d 1264, ¶ 12; State v. Thompson, 8th Dist. Cuyahoga No. 102326, 2015-Ohio-3882, 2015 WL 5608269, ¶ 23; State v. Inboden, 10th Dist. Franklin Nos. 14AP-312, 14AP-317, 2014-Ohio-5762, 2014 WL 7463000, ¶ 8.
{¶12} R.C. 2929.19(B)(2)(g)(iii) applies to motions for jail-time credit filed after the statute's effective date of September 10, 2012. State v. Lovings, 10th Dist. No. 13AP-303, 13AP-304, 2013-Ohio-5328, ¶ 9-10. Prior to the enactment of R.C. 2929.19(B)(2)(g)(iii), motions for jail-time credit were subject to the doctrine of res judicata except when the alleged calculation error was clerical or mathematical. Inboden at ¶ 7. The enactment of this statute expanded the ability of a defendant to challenge an alleged jail-time credit error. See State v. Quarterman, 8th Dist. No. 101064, 2014-Ohio-5796, ¶ 8 ("Amended R.C. 2929.19(B)(2)(g)(iii) marks a significant change in the law regarding jail-time credit."). In Inboden, the court stated that pursuant to R.C. 2929.19(B)(2)(g)(iii), "the court has continuing jurisdiction to correct any jail-time credit error 'not previously raised at sentencing,' thereby abating the application of the doctrine of res judicata as it relates to issues that could have been raised at sentencing but were not." Inboden, supra at ¶ 8, quoting R.C. 2929.19(B)(2)(g)(iii).
{¶13} In the case sub judice, appellant was sentenced after the enactment of Section 2929.19(B)(2)(g). Because appellant was sentenced after the amended statute was effective, her jail-time credit was determined under R.C. 2929.19(B)(2)(g)(i).". Section 2929.19(B) (2)(g)(iii), therefore, conferred upon the common pleas court jurisdiction to entertain her challenge to her jail-time-credit determination.
{¶14} We find, therefore, that the trial court erred in finding that appellant's motion was untimely. However, we find such issue to be moot because the trial court did not err in denying appellant's request for jail time credit for time served on electronically monitored house arrest.
{¶15} In State v. Studer, Stark App.No. 2000CA00180, 2001 WL 246416 (March 5, 2001), this Court found that electronically monitored house arrest was not confinement under R.C. 2967.191. Specifically, this Court held as follows: "The term 'confinement,' while not defined, is set forth in R.C. 2921.01(E), which defines 'detention' as 'arrest; confinement in any vehicle subsequent to an arrest; confinement in any facility for custody of persons charged with or convicted of a crime or alleged or found to be delinquent or unruly.... Detention does not include supervision of probation or parole, or constraint incidental to release on bail." Studer, supra at 2. See also , In re Helfrich, 5th Dist. Licking No. 13CA20, 2014-Ohio-1933 at paragraph 59 in which this Court held in relevant part as follows:
[E]lectronic monitoring house arrest as a condition for presentence release on bail is not the type of confinement that justifies credit for time served. See State v. Gowdy, 7th Dist. Mahoning No. 07 MA 103, 2008-Ohio-1533, ¶ 25, and cases cited therein; see also State v. Delaney, 12th Dist. Warren No. CA2012-11-124, 2013-Ohio-2282, ¶ 8, citing State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 72 (pretrial electronic monitored house arrest does not constitute confinement for the purpose of receiving jail-time credit).
{¶16} See also State v. Bates, 5th Dist. Guernsey App. No. 04CA11, 2004-Ohio-6856 and State v. Krouskoupf, 5th Dist. Muskingum App.No. CT2005-0024, 2006-Ohio-783.
{¶17} Therefore, we find that the trial court did not err by denying appellant's request for jail-time credit for her period of electronically monitored house arrest. Appellant's first assignment of error, therefore, is overruled.
{¶18} Accordingly, for the foregoing reasons, the judgment of the Delaware County Court of Common Pleas is affirmed. By: Baldwin, J. Gwin, P.J. and Wise, Earle, J. concur.