State v. Burns

[Cite as State v. Burns, 2018-Ohio-4657.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2018-03-015

: OPINION
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:

DAVID N. BURNS, JR., :

Defendant-Appellant. :

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2017-CR-000417

D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East Main
Street, Batavia, Ohio 45103, for defendant-appellant

HENDRICKSON, J.

{¶ 1} Defendant-appellant, David N. Burns, Jr., appeals from the sentence he

received in the Clermont County Court of Common Pleas for violating a protection order.

{¶ 2} On March 28, 2017, in Clermont County Court of Common Pleas Case No.

2017-CR-000193, appellant was indicted on one count of theft and one count of forgery. A

warrant was issued, and appellant was arrested on June 6, 2017. He was unable to make
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bond and remained jailed.

{¶ 3} On July 13, 2017, while awaiting trial in Case No. 2017-CR-000193, appellant

was indicted by the grand jury on one count of violating a protection order, a felony of the fifth

degree, in Clermont County Court of Common Pleas Case No. 2017-CR-000417. Appellant

was alleged to have recklessly violated the terms of a protection order issued by a domestic

relations court by calling his ex-wife and leaving a hostile voicemail on June 2, 2017. This

was appellant's second violation of the protection order, as he previously pled guilty to

violating the order in Clermont County Municipal Court.

{¶ 4} On November 20, 2017, in Case No. 2017-CR-000193, appellant pled guilty to

forgery in exchange for dismissal of the theft charge. On December 4, 2017, he was

sentenced to six months in prison for forgery. However, as appellant had already served 180

days in jail prior to the sentencing entry being journalized, the court found he was entitled to

time served and he was discharged as to Case No. 2017-CR-000193 only. Appellant

remained incarcerated while awaiting trial on the charge of violating a protection order.

{¶ 5} On February 5, 2018, in Case No. 2017-CR-000417, appellant pled guilty to

violating a protection order, and both the state and the defense recommended a six-month

prison term be imposed. The trial court accepted appellant's guilty plea after advising

appellant as follows with respect to the proposed sentence: "[U]nless there is something

unusual in your presentence report, I would be inclined to go along with this but I am not

bound by [this] recommendation. It's totally up to me in the end."

{¶ 6} On February 22, 2018, appellant was sentenced in Case No. 2017-CR-000417

to a nine-month prison term. In imposing a nine-month prison sentence, rather than the

jointly recommended six-month prison sentence, the court noted it had reviewed the

presentence investigation report ("PSI") and was "alarmed by what [it] saw" as there was "a

history * * * beyond anything [it] imagined." In addition to appellant's lengthy criminal history,
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the court was also troubled by the "tone" of the voicemail message appellant left for his ex-

wife. The court found appellant demonstrated "a real violent attitude" in leaving the following

message:

[Voicemail Message]: How long do you think you're going to fuck
with me before I fucking do something to all you mother-fuckers?
You know, all over that fucking dog. It's what all this shit fucking
occurred at. When I get back in town, you're lucky I ain't there
now.

{¶ 7} After imposing a nine-month sentence, the court gave appellant 80 days of jail-

time credit for the time he remained incarcerated after completing his sentence in Case No.

2017-CR-000193 on December 4, 2017 until he was sentenced in Case No. 2017-CR-

000417 on February 22, 2018. The court then indicated it was running the nine-month

sentence for violating a protection order "consecutively" to the completed six-month sentence

appellant already served for forgery in Case No. 2017-CR-000193. The court stated, in

relevant part, as follows:

THE COURT: I'm going to impose a nine-month prison sentence.
You'll be given 80 days of jail time credit for this sentence
because you had served a sentence in [2017-CR-000193]. You
were being held on two charges. So this sentence is in essence
being served consecutively to the sixth-month sentence that you
had already served.

As I indicated, in that sentence, you were – as of December 4,
2017, you were discharged on that 193 case. I think consecutive
structure isn't significantly – is important. It's – given you your
criminal history, these were separate offenses and a single
sentence, I think would demand [sic] the seriousness of your
conduct. You have been to prison multiple times on multiple
felonies and the attitude exhibited in the presentence report is
serious. In my mind, a single sentence would demean the
seriousness of it.

{¶ 8} Following the imposition of his sentence, appellant timely appealed, raising two

assignments of error for review.

{¶ 9} Assignment of Error No. 1:

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{¶ 10} THE TRIAL COURT FAILED TO COMPLY WITH R.C. 2929.14(C)(4) WHEN

IMPOSING CONSECUTIVE SENTENCES.

{¶ 11} In his first assignment of error, appellant argues the trial court erred by failing

to make the necessary sentencing findings required by R.C. 2929.14(C)(4) before running his

sentence for violating a protection order in Case No. 2017-CR-000417 consecutively to his

sentence for forgery in Case No. 2017-CR-000193.

{¶ 12} We review the imposed sentence under the standard of review set forth in R.C.

2953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, ¶ 1; State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-

3315, ¶ 6. Pursuant to that statute, an appellate court does not review the sentencing court's

decision for an abuse of discretion. Marcum at ¶ 10. Rather, R.C. 2953.08(G)(2) compels an

appellate court to modify or vacate a sentence only if the appellate court finds 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." Id. at ¶ 1.

{¶ 13} Pursuant to R.C. 2929.14(C)(4), a trial court must engage in a three-step

analysis and make certain findings before imposing consecutive sentences. State v. Smith,

12th Dist. Clermont No. CA2014-07-054, 2015-Ohio-1093, ¶ 7. Specifically, the trial court

must find that (1) the consecutive sentence is necessary to protect the public from future

crime or to punish the offender, (2) consecutive sentences are not disproportionate to the

seriousness of the offender's conduct and to the danger the offender poses to the public, and

(3) one of the following applies:

(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or
2929.18 of the Revised Code, or was under post-release control
for a prior offense.

(b) At least two of the multiple offenses were committed as part of
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one or more courses of conduct, and the harm caused by two or
more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.

R.C. 2929.14(C)(4); Smith at ¶ 7.

{¶ 14} "[A] trial court is required to make the findings mandated by R.C.

2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing

entry." State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 37. While the trial court is

not required to give reasons explaining these findings, it must be clear from the record that

the court engaged in the required sentencing analysis and made the requisite findings. Smith

at ¶ 8. "A consecutive sentence is contrary to law where the trial court fails to make the

consecutive sentencing findings as required by R.C. 2929.14(C)(4)." State v. Marshall, 12th

Dist. Warren No. CA2013-05-042, 2013-Ohio-5092, ¶ 8.

{¶ 15} Although the record demonstrates that the trial court did not make all the of the

findings required by R.C. 2929.14(C) in imposing appellant's sentence, we find that such

findings were unnecessary in this case as there was not a consecutive sentence imposed. At

the time appellant was sentenced to nine months in prison for violating a protection order,

appellant's prior sentence for forgery had already been served and he had been discharged

from prison in Case No. 2017-CR-000193. Appellant remained jailed after December 4,

2017 only because he faced charges in Case No. 2017-CR-000417 and had not made bail.

Accordingly, as appellant's sentence in Case No. 2017-CR-000193 had already expired and

there was no existing sentence for the trial court to run the nine-month sentence in Case No.

2017-CR-000417 consecutively to, we find that consecutive sentencing findings under R.C.

2929.14(C) were not required. The sentence imposed was therefore not contrary to law.
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Furthermore, given that this was appellant's second violation of the protection order and he

has a lengthy criminal history spanning more than three decades, the nine-month sentence

imposed by the court was supported by the record. Appellant's first assignment of error is

therefore overruled.

{¶ 16} Assignment of Error No. 2:

{¶ 17} THE TRIAL COURT ERRED IN CALCULATING JAIL-TIME CREDIT.

{¶ 18} In his second assignment of error, appellant argues the trial court erred by only

awarding 80 days of jail-time credit, rather than the 82 days of credit he believes he is entitled

to receive. Appellant contends that his six-month prison sentence in Case No. 2017-CR-

000193 should have expired on December 2, 2017, not December 4, 2017, and that he

should have received jail-time credit towards his prison sentence in Case No. 2017-CR-

000417 from December 3, 2017 to February 22, 2018. We do not reach the merits of

appellant's arguments, however, as we find his second assignment of error to be moot.

{¶ 19} As the Ohio Supreme Court has noted, once an offender has completed his

prison sentence, any alleged error relating to the calculation of jail-time credit becomes moot

as there is no longer an existing case or controversy. State ex rel. Compton v. Sutula, 132

Ohio St.3d 35, 2012-Ohio-1653, ¶ 5, citing State ex rel. Gordon v. Murphy, 112 Ohio St.3d

329, 2006-Ohio-6572, ¶ 6; and Crase v. Bradshaw, 108 Ohio St.3d 212, 2006-Ohio-663, ¶ 5

("appeal is moot because his sentence has now expired and he has been released from

prison").

{¶ 20} In this case, the records from the Ohio Department of Rehabilitation and

Correction indicate appellant was released from prison on August 19, 2018.1 As a result,

1. As this court has done previously, we take judicial notice from the Ohio Department of Rehabilitation and
Correction's website of the date appellant was released from prison. See State v. Rhymer, 12th Dist. Butler No.
CA2018-01-014, 2018-Ohio-2669, ¶ 9, fn. 2; State v. Barnes, 12th Dist. Warren No. CA2015-01-005, 2015-Ohio-
3523, ¶ 9, fn. 1. See also State v. Bennett, 2d Dist. Greene No. 2014-CA-60, 2015-Ohio-2779, ¶ 5, fn. 1; State v.
Draper, 3d Dist. Putnam No. 12-10-07, 2011-Ohio-773, ¶ 9, fn. 1.
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even assuming appellant was correct that the trial court erred by granting only 80 days of jail-

time credit, because appellant has completed his nine-month prison sentence, there is no

relief that this court can provide to him on appeal. See, e.g., State v. Rhymer, 12th Dist.

Butler No. CA2018-01-014, 2018-Ohio-2669, ¶ 8-11 (appeal challenging trial court's award of

jail-time credit rendered moot where appellant already served his 180-day prison term and

was released from prison); State v. Hiler, 12th Dist. Butler No. CA2015-05-084, 2015-Ohio-

5200, ¶ 20-21 (assignment of error challenging the trial court's award of jail-time credit moot

where appellant had since completed her six-month prison sentence); State v. Jama, 10th

Dist. Franklin No. 17AP-569, 2018-Ohio-1274, ¶ 14-17 (appeal challenging trial court's award

of jail-time credit rendered moot by appellant's "release from confinement on the expiration of

her sentence").

{¶ 21} "As jail-time credit relates only to the length of a sentence and not the

underlying conviction, no collateral disability results by applying the mootness doctrine to

felony sentences." (Emphasis sic.) State v. Barnes, 12th Dist. Warren No. CA2015-01-005,

2015-Ohio-3523, ¶ 8. See also State v. McCormick, 6th Dist. Wood Nos. WD-15-078 and

WD-15-079, 2016-Ohio-8009, ¶ 9; State v. Swain, 4th Dist. Washington No. 13CA16, 2015-

Ohio-1137, ¶ 8. "Furthermore, the exception to the mootness doctrine, when a claim is

capable of repetition, yet evades review, does not apply to claims for jail-time credit because

there is no reasonable expectation an offender will be subject to the same action again."

Barnes at ¶ 8, citing Murphy, 2006-Ohio-6572 at ¶ 6.

{¶ 22} The fact that appellant was placed on three years of postrelease control

supervision following his release from prison does not prevent application of the mootness

doctrine. See State v. Popov, 4th Dist. Lawrence No. 10CA26, 2011-Ohio-372, ¶ 8-9.

Where a defendant violates a condition of his or her postrelease control, the sanctions that

may be imposed for the violation are set forth in R.C. 2967.28(B). The length of the prison
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term that can be imposed for a violation of postrelease control is statutorily limited; the

maximum term per violation is nine months in prison or up to one-half the defendant's original

sentence for multiple violations. See R.C. 2967.28(F)(1)-(3); State v. Clark, 119 Ohio St.3d

239, 2008-Ohio-3748, ¶ 35; Popov at ¶ 8. Assuming appellant violates his postrelease

control, the "consideration of the merits of this assignment of error would not affect the

outcome of any subsequent sanctions imposed by the parole authority." Id. at ¶ 9. Even if

we found merit to appellant's argument that he was entitled to 82 days of jail-time credit,

rather than the 80 days given to him, the jail-time credit would not reduce the maximum

length of the prison term that could be imposed for a violation of his postrelease control.

Therefore, postrelease control has no effect on the justiciability of appellant's appeal. See id.

{¶ 23} Accordingly, as appellant has already served his sentence and been released

from prison and there is no longer an existing case or controversy to decide regarding the

issue of jail-time credit, appellant's second assignment of error is dismissed as moot.

{¶ 24} Judgment affirmed.

S. POWELL, P.J., and M. POWELL, J., concur.

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