State v. Smith

         Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2014 CR 00207.

          Nicholas A. Iarocci, Ashtabula County Prosecutor, Ashtabula County Courthouse (For Plaintiff-Appellee).

          Michelle M. French, Law Offices of Michelle M. French, LLC, (For Defendant-Appellant).

          OPINION

          CYNTHIA WESTCOTT RICE, P.J.

         {¶1} Appellant, Stanley T. Smith, appeals the judgment of the Ashtabula County Court of Common pleas denying his pro se motion for jail-time credit. Appellant's appointed, appellate counsel has filed a brief and requested leave to withdraw, pursuant to Anders v. California, 386 U.S. 738 (1967). Appellant was served with the brief and subsequently filed a pro se appellate brief. After conducting an independent review of appellant's case, we conclude the instant appeal is wholly frivolous and affirm the trial court's denial of appellant's motion.

         {¶2} On May 30, 2014, appellant was indicted for illegal assembly of chemicals for the manufacture of drugs, a felony of the third degree ("the Ashtabula County case"). Appellant pled not guilty. The bond set in the Painesville Municipal Court was continued and appellant remained free on bond.

         {¶3} On October 8, 2014, appellant withdrew his not guilty plea and pled guilty to the indictment. Bond was continued pending preparation of a pre-sentence report. The court noted appellant had not served any jail time on this charge. The court scheduled sentencing for December 11, 2014.

         {¶4} On December 8, 2014, appellant was arrested in Lake County and incarcerated in the Lake County Jail on a new case in which he was also charged with illegal assembly of chemicals for the manufacture of drugs ("the Lake County case"). Upon discovering this development, the Ashtabula County Court rescheduled sentencing for January 27, 2015.

         {¶5} On January 26, 2015, appellant was conveyed to the Ashtabula County Court for sentencing. At the January 27, 2015 sentencing, appellant was sentenced to two and one-half years in prison with no days of jail-time credit. He was then returned to the Lake County Jail for disposition of the Lake County case.

         {¶6} Appellant did not file a direct appeal in the Ashtabula County case. Instead, five months after he was sentenced in that case, on June 25, 2015, he filed a pro-se motion for jail-time credit. He conceded he was given 56 days of jail-time credit, but argued he was entitled to an additional 78 days of jail-time credit. Appellant subsequently withdrew this motion, stating he was not entitled to the jail-time credit he requested.

         {¶7} Thereafter, on August 15, 2016, appellant filed a second pro-se motion for jail-time credit in the Ashtabula County case in which he made virtually the same argument he made in his first motion. The only exhibit appellant attached to this motion was a copy of a brief a Lake County assistant prosecutor filed in opposition to a motion for jail-time credit that appellant apparently filed in the Lake County case.

         {¶8} In his brief, the Lake County assistant prosecutor asked the trial court to "deny Defendant's Motion for Jail Time Credit * * *." That prosecutor said: "On April 14, 2015, the Defendant was sentenced to [two years] in prison [in the Lake County Case], with 50 days credit (12/8/14 - 1/26/15), consecutive to his prison sentence in [the Ashtabula County case], in which case he was sentenced on 1/27/15 to [two and one-half years] in prison with 0 days credit." The prosecutor said appellant "received the correct amount of jail-time credit in [the Lake County case] and that it was for "[t]he Department of Corrections [to] credit the Defendant with serving his Ashtabula County prison sentence from 1/27/15 until at least 4/14/15 when he was sentenced by [the Lake County] Court." (The Lake County court denied appellant's motion for jail-time credit. Appellant appealed that ruling and that appeal is now pending in this court.)

         {¶9} The Ashtabula County assistant prosecutor filed a brief in opposition to appellant's motion for jail-time credit. The prosecutor argued that appellant's motion should be denied because it was barred by res judicata and also because appellant had already received credit for time served on the Ashtabula County case, suggesting that if his motion was granted, he would receive duplicate jail-time credit for the period from January 27, 2015 (when he was sentenced in Ashtabula County) to April 14, 2015 (when he was sentenced in Lake County). The trial court denied appellant's motion.

         {¶10} Appellant, pro se, appealed the trial court's ruling. This court appointed Michelle M. French as appellant's appellate counsel. She filed an appellate brief pursuant to Anders, supra, in which she stated she had reviewed the record and applicable law and could not find any error prejudicial to appellant's rights. Pursuant to Anders, counsel ...