State v. Moore

[Cite as State v. Moore, 2016-Ohio-3510.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

ASHTABULA COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :
CASE NO. 2015-A-0069
- vs - :

DAVID M. MOORE, :

Defendant-Appellant. :

Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2010
CR 00420.

Judgment: Affirmed.

Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellee).

Christopher J. Boeman, P.O. Box 583, Willoughby, OH 44096 (For Defendant-
Appellant).

DIANE V. GRENDELL, J.

{¶1} Defendant-appellant, David M. Moore, appeals from the Judgment Entry

of the Ashtabula County Court of Common Pleas, ordering that he be given jail-time

credit of 742 days toward a four-year prison sentence. The issue to be determined by

this court is whether a defendant can receive jail-time credit for time served on an
unrelated offense when there may have been a holder that caused him to remain in jail

during that time. For the following reasons, we affirm the decision of the lower court.

{¶2} On January 21, 2011, Moore was indicted by the Ashtabula County Grand

Jury for Aggravated Robbery (Count One), a felony of the first degree, in violation of

R.C. 2911.01(A)(1); Robbery (Count Two), a felony of the third degree, in violation of

R.C. 2911.02(A)(3); and Theft of Drugs (Count Three), a felony of the fourth degree, in

violation of R.C. 2913.02(A)(1) and (B)(6).

{¶3} Moore entered a plea of guilty to Counts Two and Three on April 1, 2011.

The remaining count was dismissed.

{¶4} On April 25, 2011, a Judgment Entry was filed, sentencing Moore to four

years of incarceration on Count Two and eighteen months on Count Three, to run

concurrently.

{¶5} The trial court issued a Judgment Entry on July 16, 2012, granting

Moore’s request for judicial release, with the condition that he attend and complete the

NEOCAP program, after which he would be on intensive probation for two years.

Moore’s probation was subsequently extended for a period of one year, until July 13,

2015, based on his failure to pay fees and court costs.

{¶6} On September 12, 2014, a Request for Capias was filed by the Ashtabula

County Adult Probation Department, based on Moore’s failure to comply with his terms

of probation. The court filed a Judgment on the same date, issuing a capias and

ordering that Moore be arrested and remain in custody for a hearing on the probation

violation.

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 {¶7} Moore filed a Motion of Availability on April 13, 2015, stating that he was

incarcerated in the Lake County Jail.

{¶8} On August 17, 2015, a Complaint for Violation of ISP Probation was filed,

detailing Moore’s lack of compliance.

{¶9} A Probable Cause hearing was held on September 18, 2015. At that

hearing, it was explained that Moore had been arrested for Forgery and Misuse of

Credit Cards in Lake County in November 2014, remained in the Lake County Jail, and

completed a nine month sentence for those convictions just prior to being brought to

Ashtabula for the probation violation. Moore entered a guilty plea. The court found he

violated probation by pleading guilty to felony offenses in Lake County and by failing to

report to probation. The court scheduled an evidentiary hearing for Moore to prove he

was entitled to the jail-time credit he requested.

{¶10} A hearing on the jail-time credit issue was held on September 23, 2015.

Moore’s counsel presented the judgment from his Lake County convictions, which did

not reference the capias or the probation violation in the present matter. Counsel

argued that she believed the Lake County Court was aware of the pending charges

because the docket had a notation about amending the bond “if defendant is taken into

custody to serve sentence of 60 days in Ashtabula County.”1 Counsel argued that

Moore would not have been permitted to get out of jail if he posted bond because of the

capias, an argument refuted by the State. The State noted Moore was transported to

Ashtabula County Jail when he had completed his sentence of nine months on the Lake

County case.

1. It is noteworthy that on September 2, 2015, Moore was sentenced to a 55-day jail term for Driving
Under Suspension, in Geneva, Ashtabula County.

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 {¶11} A second hearing was held on October 30, 2015. The State and Moore

both agreed he was entitled to at least 742 days of credit for his past incarceration for

Robbery and Theft of Drugs. Moore also believed that he was entitled to “the nine

months that he served a sentence when this capias was pending for him.” The court

found that Moore was not entitled to jail-time credit for that period, since it “arose from

facts that are separate and apart from those that he’s now being sentenced.” The court

ordered him to serve the four-year sentence imposed in 2011, with credit for 742 days

served. The trial court filed its Judgment Entry on November 2, 2015, memorializing the

sentence.

{¶12} Moore timely appeals and raises the following assignment of error:

{¶13} “The trial court erroneously denied appellant jail-time credit under R.C.

2967.191 for time spent in custody after a capias had been issued without first

determining whether or not he was being held on a holder for alleged probation

violations.”

{¶14} Pursuant to R.C. 2967.191, a prisoner’s stated prison term shall be

reduced “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, including

confinement in lieu of bail while awaiting trial * * *.”

{¶15} “We review the trial court’s determination as to the amount of credit to

which [a defendant] is entitled under the ‘clearly and convincingly’ contrary to law

standard.” State v. Smith, 11th Dist. Geauga No. 2014-G-3185, 2014-Ohio-5076, ¶ 15;

R.C. 2953.08(G)(2); see State v. Marcum, __ Ohio St.3d __, 2016-Ohio-1002, ¶ 1 (“an

appellate court may vacate or modify a felony sentence on appeal only if it determines

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by clear and convincing evidence that the record does not support the trial court’s

findings under relevant statutes or that the sentence is otherwise contrary to law”).

{¶16} Moore argues that the trial court should have determined whether a

probation violation holder had been placed on him while he was in jail in Lake County

before denying the motion for jail-time credit. He contends that if a holder existed, he

was entitled to an additional 270 days of jail credit, citing State v. Maynard, 10th Dist.

Franklin No. 08AP-43, 2008-Ohio-3829.

{¶17} The State argues that the extra jail-time credit is unwarranted because the

period of incarceration was for an unrelated offense. It also argues that Moore “was

granted a hearing for the sole purpose of presenting evidence to show that there was a

holder placed on him due to his Ashtabula County case while he was incarcerated in

Lake County,” but was unable to produce any evidence to support that contention.

{¶18} This court has generally recognized that “jail-time credit is appropriate only

when the facts and circumstances giving rise to the incarceration are the result of the

charge for which the offender is eventually sentenced.” State v. Struble, 11th Dist. Lake

No. 2005-L-115, 2006-Ohio-3417, ¶ 11. “R.C. 2967.191 is inapplicable when the

offender is imprisoned as a result of another unrelated offense,” and “there is no jail-

time credit for time served on unrelated offenses, even if that time served runs

concurrently during the pre-detention phase of another matter.” Id.; Smith, 2014-Ohio-

5076, at ¶ 16.

{¶19} In the present case, there is no dispute over the 742 days. There is also

no evidence to dispute that the additional 270 days Moore requests were served

pursuant to his Lake County charges/sentence. While the Lake County convictions

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provided part of the basis for Moore’s probation violation, in addition to his failure to

report, this does not create a relationship with the original underlying charges requiring

jail-time credit. See State v. Olmstead, 5th Dist. Richland No. 2007-CA-119, 2008-

Ohio-5884, ¶ 19 (jail-time credit for an arrest on a probation violation “can only be

credited toward the sentence on the original charge- i.e., the one for which he was

sentenced to probation”). Moore was ordered to serve his original term for the

underlying 2011 Robbery and Theft convictions, which are unrelated to the Lake County

convictions for which Moore served nine months.

{¶20} Given the lack of a relationship between the charges justifying jail-time

credit, Moore contends that the existence of a holder entitled him to the 270-day credit.

This is based on reliance on Maynard, 2008-Ohio-3829, wherein the Tenth District

remanded for the court to determine if a holder had existed for a probation violation,

which, if it was the cause of the appellant’s confinement, “would entitle [the appellant] to

jail-time credit from the date the probation holder was placed through the date of the

revocation hearing.” Id. at ¶ 20.

{¶21} Presuming that the existence of a holder for the probation violation would

require the court to credit 270 days of jail time to Moore, there is no evidence in the

record that such a holder existed. Multiple hearings on this issue were held before the

trial court, but no evidence of a holder was presented.

{¶22} While a September 12, 2014 judgment did order a capias to issue for

Moore’s arrest, it was not served on Moore until he was to be released from Lake

County. There is no evidence that Lake County was informed that Moore should be

held on the probation violation, nor does Moore argue that such evidence was part of

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the record. Instead, he argues that “the record is unclear” and that there should be a

remand for the trial court to make a specific finding whether Moore had been held on a

probation violation holder.

{¶23} We find no basis for doing so. Moore was given the opportunity at

multiple hearings to submit evidence showing the existence of a holder. The State

argued that Moore had not been served with the capias and he was not held on this

case while in Lake County. The trial court’s determination that Moore was not entitled

an additional 270 days of jail-time credit is sufficient to establish that it believed no

holder existed and that the circumstances only warranted the amount of jail-time credit

awarded. The lack of evidence to show that Moore was being held on the probation

violation issue warrants a conclusion that he was not. See State v. Cremeans, 4th Dist.

Lawrence No. 99 CA 12, 2000 Ohio App. LEXIS 2938, 7 (June 26, 2000) (“Common

sense dictates that if no holder existed, or if authorities were unaware of any existing

arrest warrant, they cannot be said to be holding a prisoner for either of those

reasons.”). It is also clear that Moore was sentenced for charges in Lake County which

warranted his detention.

{¶24} In Maynard, the court found it was necessary to remand for a

determination of whether appellant’s confinement resulted from a holder to determine if

she should get credit for time served since the record was insufficient to determine

whether a holder was filed and necessary documents were not made part of the record.

2008-Ohio-3829, at ¶ 19-20. In the present case, no remand is warranted. It is clear

that jail-time credit was argued at three separate hearings, at least one of which was

characterized as an evidentiary hearing and was scheduled for the specific purpose of

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allowing Moore to prove his entitlement to jail-time credit. We decline to remand for

additional evidence-taking when a record was established through the hearing and

simply does not support Moore’s claim. See State v. Choate, 9th Dist. Summit No.

27612, 2015-Ohio-4972, ¶ 33 (“[t]he appellate record, however, simply does not contain

sufficient information for us to conclude that an error occurred”).

{¶25} Finally, Moore’s contention that he should receive jail-time credit in the

present case for time served in another case would essentially reward him for

committing multiple crimes: “R.C. 2967.191 does not allow a convicted person to turn

his confinement for various convictions into a ‘bank’ of jail time that he ‘withdraw[s]’ as

needed for pending felony offenses.” Smith, 2014-Ohio-5076, at ¶ 18, citing State v.

Barnett, 7th Dist. Mahoning No. 13 MA 123, 2014-Ohio-3686, ¶ 13.

{¶26} The sole assignment of error is without merit.

{¶27} For the foregoing reasons, the Judgment Entry of the Ashtabula County

Court of Common Pleas, ordering that Moore receive 742 days of jail-time credit, is

affirmed. Costs to be taxed against appellant.

TIMOTHY P. CANNON, J.,

THOMAS R. WRIGHT, J.,

concur.

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