Opinion
C. A. 2022-CA-28
07-28-2023
STATE OF OHIO Appellee v. TIMOTHY REED Appellant
ANDREW P. PICKERING, Attorney for Appellee. CHRIS BECK, Attorney for Appellant.
Criminal Appeal from Common Pleas Trial Court Case No. 22-CR-0042
ANDREW P. PICKERING, Attorney for Appellee.
CHRIS BECK, Attorney for Appellant.
OPINION
LEWIS, J.
{¶ 1} Defendant-Appellant Timothy Reed appeals from his conviction in the Clark County Common Pleas Court following his guilty plea to one count of aggravated possession of drugs, a second-degree felony. Because a guilty plea waives all non-jurisdictional errors for purposes of appeal except those related to the plea itself, Reed's assignments of error relating to any proceedings that occurred prior to the entry of his guilty plea lack merit. However, the trial court failed to address the jail-time credit to which Reed was entitled at the time of sentencing such that he is granted a limited remand solely for purposes of imposing jail-time credit. For the reasons that follow, the judgment of the trial court will be affirmed in part and reversed in part, and the matter will be remanded solely for purposes of a new sentencing hearing in accordance with this opinion.
I. Statement of Facts and Course of Proceedings
{¶ 2} Following an undercover drug investigation, officers from the Springfield Police Department obtained a search warrant for Reed's residence. The search warrant was executed on March 11, 2021, at which time officers discovered a significant amount of drugs, drug paraphernalia, and U.S. currency. When Reed was arrested that same day, officers confiscated two cell phones and over $4,000 in U.S. currency.
{¶ 3} On June 22, 2021, Reed was indicted by a Clark County grand jury in Clark C.P. No. 2021-CR-381 ("the first indictment") on 12 felony counts, including aggravated trafficking in drugs, aggravated possession of drugs, trafficking in cocaine, possession of cocaine, trafficking in drugs, and possession of drugs. The State moved to dismiss the first indictment on August 9, 2021, indicating that Reed had been re-indicted in Clark C.P. No. 2021-CR-411 ("the second indictment") to increase several of the offenses to higher-level felonies. The trial court subsequently granted the State's motion, and the first indictment was dismissed without prejudice.
{¶ 4} In Case No. 2021-CR-411, Reed filed a motion to suppress evidence stemming from the search warrant and his arrest. He filed a supplemental motion to suppress on September 20, 2021, which requested that the trial court judge reassign the case because the judge had signed the search warrant at issue. A hearing was held on September 22, 2021. Prior to hearing testimony, the trial court refused to reassign the case per Reed's request and denied defense counsel's request for a continuance in order to file a motion to disqualify the trial court judge. Following the hearing, Reed's motions were overruled.
{¶ 5} The State filed a motion to dismiss the second indictment without prejudice on January 11, 2022, which the trial court granted. Reed was re-indicted in Clark C.P. No. 2022-CR-42 ("the third indictment") on January 18, 2022. Reed was again charged with 12 felony counts involving the trafficking and possession of drugs, ranging from a felony of the first degree to felonies of the fifth degree.
{¶ 6} On January 25, 2022, Reed entered a negotiated guilty plea in Case No. 2022-CR-42 to one count of aggravated possession of drugs, in violation of R.C. 2925.11(A) & (C)(1)(c), a felony of the second degree, and he agreed to forfeit $4,342 that was seized from his person pursuant to a forfeiture specification. In exchange, the State agreed to dismiss the remaining counts and specifications in the indictment, and the parties jointly recommended an agreed sentence of an indefinite mandatory minimum of 7 years in prison up to a maximum of 10½ years in prison in accordance with Reagan Tokes Law.
{¶ 7} Reed was sentenced on January 28, 2022, to the agreed sentence of an indefinite mandatory minimum of 7 years in prison up to a maximum of 10½ years in prison. The trial court imposed the agreed forfeiture but waived the mandatory fine. Reed filed a notice of appeal and a motion for delayed appeal from the judgment entry of conviction. We granted his motion for a delayed appeal.
{¶ 8} Reed's first appointed counsel on appeal filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 19 L.Ed.2d 493 (1967), asserting the absence of non-frivolous issues for our review. In conducting an independent review, we found at least one non-frivolous issue for appeal concerning the imposition of jail-time credit at the time of sentencing. Accordingly, we set aside the Anders brief and appointed new counsel to address the issue this court identified and any other issues that counsel uncovered. The matter is now ripe for our review.
{¶ 9} Reed raises the following four assignments of error:
1. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO CONTINUE TO ALLOW AN AFFIDAVIT OF RECUSAL TO BE FILED.
2. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.
3. THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO SUPPRESS THE SEARCH OF HIS RESIDENCE.
4. THE TRIAL COURT ERRED IN FAILING TO STATE THE CREDIT FOR ANY JAIL TIME SERVED PRIOR TO SENTENCING.
II. First Three Assignments of Error
{¶ 10} Reed's first three assignments of error deal with issues that arose under the second indictment. First, Reed alleges that the trial court abused its discretion in refusing to grant his request for a continuance at the time of his motion to suppress hearing to allow him to file an affidavit of disqualification. He then argues in his second assignment of error that his trial counsel was ineffective for failing to timely file the request for a continuance and an affidavit of disqualification in writing prior to the motion to suppress hearing. In his third assignment of error, Reed argues that the trial court erred in overruling his motion to suppress. Because the first three assignments of error are resolved on the same basis, we will consider them together.
{¶ 11} Reed challenges the trial court's actions in Case No. 2021-CR-411 under the second indictment, which was dismissed without prejudice. The State contends that Reed's failure to include the case number involving the second indictment in his notice of appeal precludes us from considering his first three assignments of error and, furthermore, that there was no final appealable order in that case from which to appeal. However, we do not need to address the merits of the State's contentions because Reed entered a negotiated guilty plea in the third case, Case No. 2022-CR-42.
{¶ 12} "A plea of guilty is a complete admission of guilt." State v. Leonard, 2d Dist. Montgomery No. 27411, 2017-Ohio-8421, ¶ 13, citing State v. Faulkner, 2d Dist. Champaign No. 2013-CA-43, 2015-Ohio-2059, ¶ 9." 'When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.'" State v. Spates, 64 Ohio St.3d 269, 272, 595 N.E.2d 351 (1992), quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). "Consequently, a guilty plea waives all appealable errors * * * except to the extent that the errors precluded the defendant from knowingly, intelligently, and voluntarily entering his or her guilty plea." Leonard at ¶ 13, citing State v. Frazier, 2016-Ohio-727, 60 N.E.3d 633, ¶ 81 (2d Dist.).
{¶ 13} Reed, who was at all pertinent times represented by counsel, does not allege any errors relating to the knowing, intelligent, and voluntary nature of his guilty plea. Consequently, he is precluded from raising any arguments involving non-jurisdictional defects that occurred prior to entering his guilty plea, and his first three assignments of error are overruled.
III. Jail-time Credit
{¶ 14} In his final assignment of error, Reed alleges that the trial court erred in failing to properly advise him of jail-time credit. The State concedes, and we agree, that the trial court failed to properly inform Reed of his jail-time credit at the time of sentencing and in the sentencing entry. We therefore sustain Reed's fourth assignment of error.
{¶ 15} "[Defendants who are unable to afford bail must be credited for the time they are confined while awaiting trial." State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, ¶ 7. Where a defendant is convicted of a felony and sentenced to a prison term, the amount of jail-time credit to which the defendant is entitled must be determined by the trial court at the time of sentencing and incorporated into the sentencing entry. R.C. 2929.19(B)(2)(g)(i). "Pursuant to Ohio Adm.Code 5120-2-04(B), the sentencing court is to determine the amount of time the offender served before being sentenced and forward that information to the [Ohio Department of Rehabilitation and Correction] if the offender is committed to a state correctional institution." (Emphasis sic.) State v. Breneman, 2d Dist. Champaign No. 2011-CA-19, 2012-Ohio-2411, ¶ 14. In accordance with Ohio Adm.Code 5120-2-04(A), the Ohio Department of Rehabilitation and Correction ("ODRC") shall then reduce the offender's sentence "by the total number of days specified by the sentencing court in the sentencing entry as required by [R.C. 2929.19(B)(2)(g)(i)]; by the number of days the offender was confined as a result of the offense, between the date of the sentencing entry and the date committed to the department, and by the number of days, if any, that the offender previously served in the custody of the [ODRC] arising out of the offense for which the offender was convicted and sentenced as determined by section 2967.191 of the Revised Code." Accordingly, any confinement that occurs after sentencing while awaiting transportation to the place where the offender is to serve their prison term is calculated by the ODRC, not the trial court, and credited towards the reduction of the offender's sentence by the ODRC. R.C. 2967.191(A); Ohio Adm.Code 5120-2-04(A).
{¶ 16} In this case, the trial court failed to discuss jail-time credit during the sentencing hearing. The judgment entry stated that Reed was granted "jail time credit from January 28, 2022 until conveyance to ODRC." The trial court had a statutory duty to calculate and specify the total number of days of jail-time credit to which Reed was entitled as of the date of his sentencing hearing and to include that number in the judgment entry. Not only did the trial court fail to identify any amount of jail-time credit at the sentencing hearing, but the judgment entry also included as jail-time credit the amount of time Reed would remain incarcerated after the date on which the judgment was entered pending his conveyance to the ODRC.
{¶ 17} Although it is clear the trial court erred, an inaccurate determination of jail-time credit at sentencing is not grounds for setting aside the conviction or sentence and does not otherwise render the sentence void or voidable. R.C. 2929.19(B)(2)(g)(iv); State v. Davis, 2d Dist. Montgomery No. 27495, 2018-Ohio-4137, ¶ 16. Nevertheless, we have previously remanded cases to the trial court to properly impose jail-time credit when the offender was not properly informed of the total number of days of jail-time credit to which the offender was entitled and there was no opportunity for the offender to be heard on the issue of jail-time credit. See State v. Grout, 2d Dist. Clark No. 2022-CA-23, 2023-Ohio-1074, ¶ 19-20.
{¶ 18} Due to the trial court's failure at sentencing to notify Reed of the specific number of days of jail-time credit to which he was entitled, and the lack of any opportunity for Reed to challenge the amount of jail-time credit, we conclude this cause must be remanded for resentencing. Upon remand, the trial court shall specify the total number of days of jail-time credit to which Reed is entitled as of the date of his sentencing and, furthermore, include that determination in its judgment entry of conviction. Accordingly, Reed's fourth assignment of error is sustained.
IV. Conclusion
{¶ 19} Having sustained Reed's fourth assignment of error, we reverse and remand this case to the trial court solely for the purpose of resentencing in order for the trial court to inform Reed of the amount of jail-time credit to which he is entitled and to include that determination in the judgment entry. The judgment of the trial court is affirmed in all other respects. Accordingly, we affirm the judgment in part, reverse it in part, and remand for a sentencing hearing to be conducted in accordance with this opinion.
TUCKER, J. and EPLEY, J., concur.