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State v. Carberry

Court of Appeals of Ohio, First District, Hamilton

August 16, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
THOMAS CARBERRY, Defendant-Appellant.

          Hamilton County Court of Common Pleas Trial No. B-1604243

         Judgment Appealed From Is: Reversed and Cause Remanded

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          Office of the Ohio Public Defender and Timothy B. Hackett, Assistant State Public Defender, for Defendant-Appellant.

          OPINION

          MOCK, PRESIDING JUDGE.

         {¶1} Following a guilty plea, defendant-appellant Thomas Carberry was convicted of one count of gross imposition ("GSI") under former R.C. 2907.05(A)(4). He was sentenced to 30 months in prison. At that time, both the state and Carberry agreed that he was entitled to 175 days of jail-time credit, and the trial court awarded him that amount.

         {¶2} Carberry appealed that conviction. He contended that he was entitled to 354 days of credit, although he had agreed with the 175 day figure at the time. The state agreed that Carberry was not given the proper amount of jail-time credit, but it contended that he was only entitled to an additional 13 days of credit, for a total of 188 days. In State v. Carberry, 1st Dist. Hamilton No. C-170095, 2018-Ohio-1060, we affirmed his conviction in most respects. But, because the parties agreed that the award of 175 days of credit was incorrect, we remanded the case for the trial court to determine the proper amount of jail-time credit. Id. at ¶ 17-20.

         {¶3} On remand, the trial court awarded Carberry 188 days of credit, and he has appealed from the trial court's judgment. In his sole assignment of error, Carberry contends that the trial court erred when it granted him only 13 additional days of jail-time credit. He argues that he is entitled to credit for time that he spent in juvenile commitment before he was bound over to the common pleas court. Therefore, he contends, he was entitled to 354 days of credit. This assignment of error has merit, but we do not agree that he was entitled to credit for the entire period of 354 days.

         {¶4} First, we note that it does not matter that Carberry originally agreed to 175 days credit. This court has stated that a trial court commits plain error when it fails to include the appropriate amount of jail-time credit in the sentencing entry. State v. Washington, 1st Dist. Hamilton No. C-140315, 2015-Ohio-1815, ¶ 9.

         {¶5} Former R.C.2967.191 authorized the trial court to give a defendant credit for the total number of days that he was "confined for any reason arising out of the offense" for which he was convicted and sentenced. Thus, prisoners must be given credit for the time they have been confined for reasons arising out of the offense for which they are convicted and sentenced, including the time they are confined awaiting trial. State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, ¶ 7-8; State v. Klein, 1st Dist. Hamilton Nos. C-040176 and C-040224, 2005-Ohio-1761, ¶ 26. But prisoners are not entitled to credit for any period of incarceration that arises from facts separate from those upon which their current sentence is based. Klein at ¶ 26.

         {¶6} Further, the Ohio Supreme Court has made clear that under former R.C. 2152.18(B), a juvenile is entitled to receive credit for the time the juvenile was confined in connection with the delinquent-child complaint upon which an order of commitment is based. In re D.S., 148 Ohio St.3d 390, 2016-Ohio-7369, 71 N.E.3d 223, ¶ 15. In other words, "Judges must grant confinement credit under R.C. 2152.18(B) if the confinement stems from an original complaint and is sufficiently linked to the adjudication of the charges upon which the juvenile court orders commitment." Id. at ¶ 22; In re J.D., 5th Dist. Richland No. 17CA42, 2018-Ohio-1823, ¶ 20.

         {¶7} In In re D.S., the state filed a complaint alleging that the juvenile was delinquent for committing acts that would have constituted two counts of aggravated robbery with accompanying firearm specifications if committed by an adult. All of those charges arose from a single incident. Subsequently, the juvenile court transferred the case to the general division of the common pleas court. The juvenile remained in juvenile detention until his transfer to the county jail.

         {¶8} In the common pleas court, the state moved to dismiss the indictment based on an agreement with the juvenile, in which the juvenile was to plead delinquent to one count of robbery with an accompanying firearm specification. The common pleas court granted the motion. Upon return of the case to juvenile court, the judge conducted an adjudicatory hearing and accepted the juvenile's admission to the charge of robbery with the specification. In doing so, the judge categorized the case as "refiling, an amended filing of what was originally filed.”

         {¶9} The juvenile court failed to award the juvenile credit for any time during which he was confined before commitment. The Ohio Supreme Court reversed, stating that the entire period during which the juvenile was confined was in connection with the original juvenile complaint and that he was entitled to credit for that ...


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