State v. Lucas

[Cite as State v. Lucas, 2022-Ohio-84.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 110421

v. :

KRISTOPHER LUCAS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED

RELEASED AND JOURNALIZED: January 13, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-20-654668-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting

Attorney, and Eric Collins, Assistant Prosecuting

Attorney, for appellee.

Paul W. Flowers Co., L.P.A., and Louis E. Grube, for

appellant.

ANITA LASTER MAYS, J.:

Defendant-appellant Kristopher Lucas (“Lucas”) appeals the trial

court’s decision to not reduce Lucas’s postrelease-control sanction and award him

jail-time credit. We affirm in part, reverse in part, and remand to the trial court to

reduce the postrelease-control sanction.

Lucas pleaded guilty to one count of domestic violence, a fourth-

degree felony, in violation of R.C. 2919.25(A). The trial court sentenced Lucas to 12-

months’ imprisonment. Additionally, as a judicial sanction the trial court ordered

Lucas to serve a three-month consecutive sentence for violating postrelease-control

in three other prior cases for a total of 15-months’ imprisonment.

I. Facts and Procedural History

On February 17, 2020, Lucas committed the offense of domestic

violence against the victim after she refused to be intimate with him. Lucas was on

postrelease-control in three additional cases at the time of the domestic violence

offense. On February 9, 2021, Lucas entered into a plea agreement and the

remaining four charges were nolled. On March 11, 2021, at sentencing the trial court

terminated postrelease-control on three cases but sentenced Lucas to three

additional months in prison for violating his postrelease-control. The trial court also

noted that Lucas would receive credit for time served.

Lucas explained to the trial court that he had previously served 11

months in prison as a sanction that was imposed by the parole board for the current

incident. The trial court, in its corrected journal entry, stated, in part:

Defendant to receive jail time credit for 49 day(s), to date. * * * Court

terminates postrelease control in all cases and imposes three months

LCI (total for all three cases) to be served consecutively to the sentence

impose in this case. Total prison term is * * * 15 months * * *.

Journal entry No. 116813956 (Apr. 20, 2021).

Lucas filed this appeal assigning two errors for our review:

I. The trial court erred by failing to reduce the postrelease control

sanction; and

II. The trial court committed plain error by failing to provide

sufficient jail-time credit.

The state concedes the first error.

II. Postrelease-Control Sanctions

In Lucas’s first assignment of error, he argues that the trial court

erred by failing to reduce the postrelease-control sanction. We note that the state

has conceded this assignment of error. However, “[a] trial court has authority to

impose a prison term or sanction for a postrelease control violation in an earlier

felony case upon a new felony conviction consistent with the requirements of

R.C. 2929.141.” State v. Prince, 8th Dist. Cuyahoga No. 103265, 2016-Ohio-2724,

¶ 7. However, “[i]n all cases, any prison term imposed for the violation shall be

reduced by any prison term that is administratively imposed by the parole board as

a post-release control sanction.” Id; R.C. 2929.141(A)(1).

According to the record, Lucas was arrested in February 2020, and

jailed until November 2020, as a result of the parole board’s sanction. Despite

serving eight months of an administratively imposed sentence, the trial court

sentenced Lucas to three months’ imprisonment as a postrelease-control sanction.

The three-month sentence was to be reduced by the administrative time already

served, thus reducing the sanction time to time served or zero months.

Therefore, the trial court erred by failing to reduce the postrelease-

control sanction. The first assignment of error is sustained.

III. Jail-time Credit

A. Standard of Review

A review of the record reveals that Lucas did not file a motion with

the trial court requesting the calculation of jail-time credit, nor did he object at

sentencing, requesting jail-time credit. “Therefore, we review the trial court’s failure

to award jail-time credit for plain error.” Bratenahl v. Eldridge, 8th Dist. Cuyahoga

No. 109520, 2021-Ohio-1083, ¶ 8, citing State v. Williams, 8th Dist. Cuyahoga

No. 105903, 2018-Ohio-1297, ¶ 10. “This court has previously held that a trial

court’s failure to calculate jail-time credit and include it in the body of the sentencing

order constitutes plain error.” Id., citing Williams at ¶ 15.

In order for this court to decide that plain error has occurred, it

“requires a showing that there was ‘an error, that the error was plain or obvious, that

but for the error the outcome of the proceeding would have been otherwise, and that

reversal [is] necessary to correct a manifest miscarriage of justice.’” State v.

Speights, 8th Dist. Cuyahoga No. 109733, 2021-Ohio-1194, ¶ 13, quoting State v.

Buttery, 162 Ohio St.3d 10, 2020-Ohio-2998, 164 N.E.3d 294, ¶ 7, State v.

Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 2. “The party

asserting plain error ‘bears the burden of proof to demonstrate plain error on the

record.’” Id., quoting State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38

N.E.3d 860, ¶ 22, citing Quarterman at ¶ 16. “[A]ppellate courts are to notice plain

error only in ‘exceptional circumstances’ in order to prevent ‘a manifest miscarriage

of justice.’” Id., quoting State v. Keslar, 8th Dist. Cuyahoga No. 107088, 2019-Ohio-

540, ¶ 21.

B. Law and Analysis

In Lucas’s second assignment of error, he contends that the trial court

committed plain error by failing to provide sufficient jail-time credit. The trial court

awarded Lucas 49 days in jail-time credit, but Lucas argues that the trial court

should have awarded him the eight months that he spent in prison on the

postrelease-control violation. Lucas argues that he is entitled to jail-time credit

because R.C. 2967.191(A) states:

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 * * *.

Lucas cites State v. Maynard, 10th Dist. Franklin No. 08AP-43,

2008-Ohio-3829, in support of his contention. However, Lucas misstates the facts

in Maynard. In Maynard, the defendant was convicted of one count of possession

of cocaine and sentenced to three years of community control. Id. at ¶ 1. The

defendant’s probation officer filed a motion to revoke the defendant’s community

control because the defendant failed to contact the probation department and had

been convicted of three additional misdemeanors. Id. at ¶ 2. “Defense counsel

stipulated the violations of community control, but challenged the trial court's

assessment of jail-time credit.” Id. at ¶ 4. The trial court revoked the defendant’s

community control and credited the defendant with jail time. Id. at ¶ 5. “The court

averred that its judgment entry would reflect that appellant was presently serving

jail time on the soliciting convictions and that it would not award jail-time credit for

those cases.” Id.

The court in Maynard held that because the defendant was held on

postrelease-control sanctions and the solicitation convictions concurrently, jail-

time credit was appropriate. “When a defendant is sentenced to concurrent prison

terms for multiple charges, jail-time credit pursuant to R.C. 2967.191 must be

applied toward each concurrent prison term.” Id. at ¶ 12. However, Lucas was not

serving his postrelease-control sanction jail time concurrently with time from the

new domestic violence infraction. Therefore, his reliance on Maynard is misplaced.

The state argues, however, that Lucas is not entitled to jail-time credit

because he served previous jail time for postrelease-control violation on a previous

offense. The state contends that Lucas is not entitled to jail-time credit for any

period of incarceration that arose from facts that are separate and apart from those

on which the current sentence is based.

We agree that “‘a defendant is not entitled to credit for time served on

unrelated charges dealing with postrelease control violations.’” State v. Brown, 8th

Dist. Cuyahoga No. 110191, 2021-Ohio-3347, ¶ 9, quoting Paige v. Wolfe, 7th Dist.

Noble No. 06 NO 337, 2007-Ohio-1117, ¶ 4, citing R.C. 2967.191 (“‘confined for any

reason arising out of the offense for which the prisoner was convicted and

sentenced’”); State ex rel. Jordan v. Haskins, 131 Ohio App.3d 791, 792, 723 N.E.2d

1116 (7th Dist.1998). “‘Merely because the postrelease control violation for a

separate offense may have been based upon his commission of the current crime

while on release, the time spent as a sanction for the violation does not count as

credit toward the current crime.’” Id., quoting Paige at id.

“Moreover, R.C. 2929.19(B)(2)(g)(1) mandates that ‘[t]he court’s

calculation shall not include the number of days, if any, that the offender served in

the custody of the department of rehabilitation and correction arising out of any

prior offense for which the prisoner was convicted and sentenced.’” (Emphasis

added.) Id. at ¶ 10, quoting R.C. 2929.19(B)(2)(g)(1). “The imposition of a prison

sentence for a violation of postrelease control is not a punishment for the new

offense, but is a consequence of the original conviction.” Id., citing State v. English,

8th Dist. Cuyahoga No. 109645, 2021-Ohio-850, ¶ 25.

Lucas’s postrelease-control violation was imposed on an earlier

offense, not the domestic violence offense. Thus, Lucas is not entitled to jail-time

credit on his 12-month sentence. Therefore, Lucas’s second assignment of error is

overruled.

Judgment affirmed in part, reversed in part, and remanded to reduce

the three-month postrelease-control sanction.

It is ordered that appellant and appellee share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

_________________________________

ANITA LASTER MAYS, JUDGE

SEAN C. GALLAGHER, A.J., and

KATHLEEN ANN KEOUGH, J., CONCUR