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State v. Gonzalez

Court of Appeals of Ohio, First District, Hamilton

August 23, 2017

STATE OF OHIO, Plaintiff-Appellee,
NADER GONZALEZ, Defendant-Appellant.

         Criminal Appeal From: Hamilton County Court of Common Pleas Trial No. B-0105717

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          Nader Gonzalez, pro se.


          Per Curiam.

         {¶1} Defendant-appellant Nader Gonzalez presents on appeal a single assignment of error challenging the Hamilton County Common Pleas Court's judgment overruling his "Motion to Correct Jail-Time Credit Criminal Rule 36." We reverse the court's judgment.

         {¶2} Gonzalez was convicted in 2002 on two counts of felonious assault. The trial court imposed consecutive eight-year prison terms and specified in his judgment of conviction jail-time credit of 236 days. Upon his admission to prison, Gonzalez was provided with a document providing the details of his sentences and notifying him that "[t]he end of [his] definite/stated term sentence is 09/16/17." We affirmed his convictions on appeal. State v. Gonzalez, 154 Ohio App.3d 9, 2003-Ohio-4421, 796 N.E.2d 12 (1st Dist.), appeals not allowed, 100 Ohio St.3d 1532, 2003-Ohio-6458, 800 N.E.2d 48.

         {¶3} In 2010, Gonzalez moved to vacate his sentences on the ground that he had not been sentenced in conformity with the statutes governing postrelease control. In August 2011, in his appeal from the overruling of that motion, we remanded for the proper imposition of postrelease control. State v. Gonzalez, 195 Ohio App.3d 262, 2011-Ohio-4219, 959 N.E.2d 596 (1st Dist.).

         {¶4} The Ohio Supreme Court had, in 2010, held that a sentencing hearing to correct postrelease control is "limited to the proper imposition of postrelease control." State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph two of the syllabus. In September 2011, on remand from our August 2011 decision, the trial court conducted a hearing and entered judgment correcting postrelease control. But the court at the hearing also went on to consider and reject arguments on, and then to again impose, the consecutive eight-year prison terms. And the court inquired into the matter of jail-time credit, stating, "There was credit at that time for 236 days. I don't know what his credit is now." Based on the assistant prosecuting attorney's representation of the number of days of confinement, the court, at the hearing and in the judgment of conviction, credited Gonzalez with jail-time of 3, 558 days. The Ohio Department of Rehabilitation and Correction then generated and, in November 2011, journalized a "Notice of New Calculation of Sentence, " reflecting "JTC 3, 563" days and a "Calculated Release * * * Date 12/12/17."

         {¶5} On appeal, we affirmed the 2011 judgment of conviction. State v. Gonzalez, 1st Dist. Hamilton No. C-110644 (Aug. 3, 2012). Citing Fischer, we overruled Gonzalez's challenge to the trial court's failure to conduct a de novo sentencing hearing. And we declined to entertain his challenges to the "re-imposi[tion]" of his 2002 sentences, the imposition of maximum and consecutive sentences, and the failure to merge his convictions, because the court on remand "had no authority to alter the duration of Gonzalez's incarceration or to merge his convictions, " when its "authority was limited to the proper imposition of postrelease control."

         {¶6} Gonzalez's Crim.R. 36 motion. Gonzalez did not challenge his jail-time credit until 2015, when he filed with the common pleas court his "Motion to Correct Jail Time Credit Criminal Rule 36." In his motion, he invoked the court's authority under Crim.R. 36 to correct a mistake in the calculation of jail-time credit, and he asked the court to credit him with the 236 days credited in his 2002 judgment of conviction and to "reinstate his expected [September 16, 2017] release date." In overruling that motion, the common pleas court explained that the 2011 decrease in Gonzalez's jail-time credit, along with the change in his release date from September 16, 2017 to December 12, 2017, had resulted from its correction of the "miscalculation" of the jail-time credit included in his 2002 judgment of conviction. The court stated that the 2002 judgment of conviction had "overcredited" him by providing him with the 236 days from his September 21, 2001 indictment to his May 14, 2002 conviction, when, in the court's assessment, he was due only the 146 days between his December 19, 2001 arrest upon his indictment and his May 14, 2002 conviction. Thus, "when he was re-sentenced on September [28], 2011, * * * the same term of incarceration was imposed, " and "he was given credit for [the] 3558 days * * * from the date of arrest [on] December 19, 2001 until the date of resentence."

         {¶7} Authority to correct jail-time credit under Crim.R. 36. We note at the outset that Gonzalez was sentenced before the effective date of R.C. 2929.19(B)(2)(g). Therefore, neither the trial court on remand in 2011, nor the common pleas court upon Gonzalez's 2015 "Motion to Correct Jail Time Credit, " could exercise the "continuing jurisdiction" conferred by R.C. 2929.19(B)(2)(g)(iii) to correct an error in Gonzalez's jail-time credit. See State v. Morgan, 1st Dist. Hamilton No. C-140146, 2014-Ohio-5325, ¶ 5-7.

         {¶8} When Gonzalez was convicted in 2002, the Ohio Revised Code sections governing jail-time credit had been construed to impose on the trial court the duty to calculate, and to specify in the judgment of conviction, the total number of days that the offender had been "confined for any reason arising out of [his] offense, " prior to his conviction for that offense. See R.C. 2949.08(B). The department of rehabilitation and correction was then tasked with reducing each sentence by the jail-time credit determined by the court, plus conveyance time. See State ex rel. Rankin v. Ohio Adult Parole Auth., 98 Ohio St.3d 476, 2003-Ohio-2061, 786 N.E.2d 1286, ¶ 7, citing State ex rel. Corder v. Wilson, 68 Ohio App.3d 567, 572, 589 N.E.2d 113 (10thDist.1991); RC 2967.191, 2949.08(B), and 2949.12.

         {¶9} Crim.R. 36 authorizes a court to "correct[] * * * at any time" "clerical mistakes in judgments." The rule thus authorizes a trial court to, at any time, enter judgment nunc pro tunc to the date of the original conviction, correcting a mistake of fact, but not an error of law, in the jail-time credit specified in a judgment of conviction. See Heddleston v. Mack, 84 Ohio St.3d 213, 213, 702 N.E.2d 1198 (1988); State v. Weaver, 1st Dist. Hamilton No. C-050923, 2006-Ohio-5072, ¶ 12. We conclude that the jail-time credit specified in Gonzalez's 2002 judgment of conviction and in the 2011 judgment of conviction entered following our remand to correct postrelease control were subject to correction under Crim.R. 36.

         {¶10} The record shows that on July 16, 2001, the United States Immigration and Naturalization Service ("INS"), as it was then, initiated removal proceedings against Gonzalez. On September 21, he was indicted for two counts of felonious assault in Hamilton County, Ohio, and on September 25, a warrant was issued for his arrest on those charges. On December 10, he was taken into custody by the United States Marshall and held on an INS detainer until December 19, when he was arrested by the Hamilton County Sheriff on the warrant ...

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