State v. Feathers

[Cite as State v. Feathers, 2021-Ohio-2886.]



                IN THE COURT OF APPEALS OF OHIO
                            ELEVENTH APPELLATE DISTRICT
                                 PORTAGE COUNTY

STATE OF OHIO,                                      CASE NOS. 2020-P-0068
                                                              2020-P-0069
                 Plaintiff-Appellee,

        -v-                                         Criminal Appeals from the
                                                    Court of Common Pleas
DAVID E. FEATHERS,

                 Defendant-Appellant.               Trial Court No. 2004 CR 00424



                                               OPINION

                                 Decided: August 23, 2021
                 Judgment: Affirmed in part and affirmed as modified in part


Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Thomas Rein, 820 West Superior Avenue, Suite 800, Cleveland, OH 44113 (For
Defendant-Appellant).


MATT LYNCH, J.

        {¶1}     Defendant-appellant, David E. Feathers, appeals from the judgment of the

Portage County Court of Common Pleas, in which the court found he violated the terms

of his community control and ordered him to serve the balance of his prison term for the

underlying offenses. For the following reasons, we affirm in part and affirm as modified

in part the judgment of the lower court.

        {¶2}     On November 4, 2004, Feathers was indicted on Aggravated Burglary, a

felony of the first degree, in violation of R.C. 2911.11(A)(1) and (2); Felonious Assault, a
felony of the second degree, in violation of R.C. 2903.11(A)(1) and (2); and Domestic

Violence, a felony of the fifth degree, in violation of R.C. 2919.25. He was convicted of

these offenses following a jury trial. On appeal, this court found reversible error and

remanded for a new trial. State v. Feathers, 11th Dist. Portage No. 2005-P-0039, 2007-

Ohio-3024.

       {¶3}    On remand, an amended indictment was issued, which, inter alia, changed

the level of offense for Domestic Violence to a fourth-degree felony. On May 28, 2008,

Feathers entered a plea of guilty to the offenses as charged in the amended indictment.

Feathers was sentenced to consecutive prison terms of eight years for Aggravated

Burglary, four years for Felonious Assault, and one year for Domestic Violence.

       {¶4}    On February 9, 2015, the court granted Feathers’ motion for judicial release

and ordered that he be placed on intensive supervision probation for one year and four

additional years of general probation, which was modified in 2017 due to a violation when

he pled guilty to a felony offense.

       {¶5}    On July 19, 2019, the probation department filed a Motion to Revoke/Modify

Probation on the grounds that Feathers pled guilty to various charges in the Ashland

County Court of Common Pleas. A hearing was held on October 21, 2019, at which the

trial court addressed motions to revoke in this case, Portage County Case No. 2004 CR

00424, and in Portage County Case No. 2016 CR 00695, which involved a conviction for

Failure to Comply.     At the hearing, Feathers admitted to violating the terms of his

probation.    The court found Feathers “is no longer amenable to community control

sanctions and I’m going to terminate his probation, impose the balance of the prison term

[and] * * * [t]hat will run consecutive to anything from Ashland County that has not been


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fulfilled.” On October 23, 2019, the court issued a judgment ordering Feathers to serve

the balance of his prison term. It stated that Feathers had been given 152 days of jail

credit when originally sentenced in 2005, additional credit for “all the days he served in

jail and prison previously” when he was resentenced in 2008, and was credited with 214

days served from December 6, 2007 (appearing from the record to reference the time he

was returned from Lake Erie Correctional Institution to the Portage County Jail pending

proceedings on remand) until sentencing on July 7, 2008. It further stated that “Defendant

shall receive credit for all the time served in the Portage County Jail and prison in this

matter. That time shall be calculated by the reception facility. (Defendant served five

days in jail after judicial release up to the date of this hearing).”

       {¶6}   This court granted Feathers’ motion to file a delayed appeal. On appeal,

Feathers raises the following assignments of error:

       {¶7}   “[1.] The trial court erred by ordering Appellant to serve a consecutive

sentence without making the appropriate findings required by R.C. 2929.14 and HB 86.

       {¶8}   “[2.] The trial court was without jurisdiction more than nine (9) years later to

correct its improper imposition of post-release control.

       {¶9}   “[3.] The trial court failed to properly calculate Appellant’s jail time credit

and failed to set forth those numbers in the October 23, 2019 Sentencing Journal Entry.”

       {¶10} In his first assignment of error, Feathers argues that the lower court “did not

make the appropriate findings to justify a consecutive sentence in his original Sentencing

Journal Entry or in his October 23, 2019 Sentencing Journal Entry.”

       {¶11} “The court hearing an appeal [of a felony sentence] shall review the record,

including the findings underlying the sentence or modification given by the sentencing


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court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce, or otherwise

modify a sentence that is appealed under this section or may vacate the sentence and

remand the matter to the sentencing court for resentencing * * * if it clearly and

convincingly finds * * * [t]hat the record does not support the sentencing court’s findings

under division * * * (C)(4) of section 2929.14, or * * * [t]hat the sentence is otherwise

contrary to law.” R.C. 2953.08(G)(2)(a) and (b).

       {¶12} “Under R.C. 2929.14(C)(4), a sentencing court is required to make three

distinct findings in order to require an offender to serve consecutive prison terms: (1)

that consecutive sentences are ‘necessary to protect the public from future crime or to

punish the offender’; (2) that consecutive sentences are ‘not disproportionate to the

seriousness of the offender’s conduct and to the danger the offender poses to the public’;

(3) ‘and * * * also’ that one of the circumstances described in subdivision (a) to (c) is

present.” (Citation omitted.) State v. Claar, 11th Dist. Portage No. 2019-P-0091, 2020-

Ohio-1330, ¶ 11. “[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, but it has no obligation to state reasons to support its findings.” Id., citing State v.

Bonnell, 140 Ohio St.3d 209, 2104-Ohio-3177, 16 N.E.3d 659, ¶ 37.

       {¶13} First, as to Feathers’ argument that the lower court erred in failing to make

consecutive sentencing findings for Aggravated Burglary, Felonious Assault, and

Domestic Violence in its original sentencing entry in 2008, such an argument is barred by

the doctrine of res judicata. A defendant is required to raise errors relating to the

imposition of consecutive sentences in a direct appeal from the sentencing judgment and,

thus, Feathers is precluded from raising this issue here. State v. Raulston, 11th Dist.


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Case Nos. 2020-P-0068, 2020-P-0069
Portage No. 2019-P-0035, 2019-Ohio-5189, ¶ 10 (“[b]ecause appellant could have raised

the consecutive sentence argument in a direct appeal, res judicata precludes raising it in

a motion before the trial court or on an appeal therefrom”); State v. Holdcroft, 137 Ohio

St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 8; State v. Wolke, 4th Dist. Adams No.

17CA1048, 2018-Ohio-2119, ¶ 14 (“because the trial court’s ‘alleged failure to comply

with the consecutive sentencing statute does not render [the] sentence void, res judicata

applies’”) (citation omitted). Further, when the court reimposed the remaining sentence

after revoking community control ordered as part of Feathers’ judicial release, it was not

required to make consecutive sentencing findings as to the running of the sentences for

Aggravated Burglary, Felonious Assault, and Domestic Violence consecutively. State v.

Thompson, 3d Dist. Crawford Nos. 3-16-01 and 3-16-12, 2016-Ohio-8401, ¶ 14 (“[w]hen

the trial court is reimposing the remainder of the defendant’s original sentence after

revoking his judicial release, the trial court need not make the statutory findings that are

required when a felony sentence is originally imposed”).

       {¶14} Feathers also contends that the court erred in determining at the sentencing

hearing following revocation that his sentence in the present matter would run

consecutive with the Ashland County case. He contends that the court failed to make

any findings supporting consecutive sentences and did not memorialize any such findings

in its October 23, 2019 Judgment Entry. In this matter, the court held the revocation

hearing for this case as well as Case No. 2016 CR 00695, which involved Feathers’

conviction for Failure to Comply, jointly. At that hearing, the court revoked community

control in both cases, ordered the reinstatement of Feathers’ sentence for this case, and

ordered Feathers to serve a prison term of three years in Case No. 2016 CR 00695. As


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to consecutive sentences, at the hearing, the court stated only that Feathers “is no longer

amenable to community control sanctions and I’m going to terminate his probation,

impose the balance of the prison term [and] * * * [t]hat will run consecutive to anything

from Ashland County that has not been fulfilled.” The court did not specifically reference

to which case this finding related, since two separate matters were addressed at the

revocation hearing. The Judgment Entry in the present matter does not make any finding

or order that the sentence be served consecutively to any other sentence, including the

Ashland County case. “It is well-established that a trial court only speaks through its

judgment entries.” State v. Russell, 11th Dist. Lake No. 2019-L-138, 2020-Ohio-3243, ¶

59. There is no basis to reverse a consecutive sentence that was not ordered through an

entry of the court.

       {¶15} We note that, in Case No. 2016 CR 00695, the Judgment Entry did order

that the term for Failure to Comply run consecutively to the sentence in the present matter,

Case No. 2004 CR 00424. A consecutive sentence was mandatory in that instance,

where Feathers pled guilty to third-degree felony Failure to Comply. See State v. Lough,

11th Dist. Trumbull No. 2015-T-0093, 2016-Ohio-3513, ¶ 24-26. Such sentence was

permissible and does not impact the validity of the sentence in the present matter. For

the foregoing reasons, we discern no error by the trial court in the present matter relating

to the imposition of consecutive sentences.

       {¶16} The first assignment of error is without merit.

       {¶17} In his second assignment of error, Feathers argues that the trial court did

not have jurisdiction to correct the improper imposition of post-release control nine years

after sentencing.


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       {¶18} Feathers first contends that it was error for the trial court to fail to provide a

correct advisement of mandatory post-release control in its July 9, 2008 sentencing entry

when Feathers was originally sentenced. However, as the Ohio Supreme Court has

explained, an error in imposing post-release control must be corrected on a direct appeal

and a failure to raise it at that stage renders it barred at subsequent stages by the doctrine

of res judicata. State v. Hudson, 161 Ohio St.3d 166, 2020-Ohio-3849, 161 N.E.3d 608,

¶ 17 (“the doctrine of res judicata will apply to collateral attacks on” a sentence on the

grounds of errors in imposing post-release control). This is the case because, provided

the court had “constitutional and statutory power to proceed to judgment,” it does not

render a sentence void. Id. at ¶ 16; State ex rel. Randlett v. Lynch, 2021-Ohio-221, 167

N.E.3d 138, ¶ 26 (10th Dist.) (“the failure [to include language regarding the

consequences of postrelease control] did not invalidate the entry’s imposition of

postrelease control, which was res judicata”). Here, there is no dispute that the trial court

had power to proceed to judgment and sentence Feathers in 2008 and, thus, any alleged

failure relating to post-release control did not render the sentence void and is barred by

res judicata.

       {¶19} In an attempt to avoid application of the doctrine of res judicata, Feathers

argues that since the trial court did not properly inform him regarding post-release control

in 2008, it was without jurisdiction to correct this error in its 2019 entry, wherein it advised

that it notified Feathers that, after release from prison, he “will be supervised under

mandatory post release control.” Feathers cites no authority for this proposition. If

Feathers is not entitled to correction of an issue in the imposition of post-release control

due to the doctrine of res judicata, there can be no reasonable argument that we should


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reverse Feathers’ sentence based on a correct advisement given when his sentence is

reimposed. It is not reversible error to give a correct advisement to a defendant when

reimposing a sentence, nor does it appear the court’s advisement was an attempt to

correct a past error as Feathers contends.

       {¶20} The second assignment of error is without merit.

       {¶21} In his third assignment of error, Feathers argues that the trial court failed to

properly calculate his jail time credit, emphasizing that it did not include in its entry all jail

time served, instead stating that “the time shall be calculated by the reception facility.”

       {¶22} “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. Mason, 11th Dist. Lake No. 2019-L168, 2020-Ohio-1561, ¶ 7, citing

State v. Smith, 11th Dist. Geauga No. 2014-G-3185, 2014-Ohio-5076, ¶ 15, quoting R.C.

2953.08(G)(2).

       {¶23} R.C. 2967.191(A) requires a reduction of a prison term for days of related

confinement and provides that “[t]he department of rehabilitation and correction shall

reduce the prison term of a prisoner * * * 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,

confinement for examination to determine the prisoner’s competence to stand trial or

sanity, confinement while awaiting transportation to the place where the prisoner is to

serve the prisoner’s prison term, * * * and confinement in a juvenile facility.”

       {¶24} Initially, we note that the State conceded the error in its brief, contending

that while the court did state various periods of jail time credit in its sentencing entry, “a


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review of the record indicates that Feathers was granted judicial release from prison on

February 9, 2015, and his period of incarceration has not been included in the

com[p]utation of his jail-time credit.” At oral argument, however, it stated that it was in

error in its belief that the trial court was required to order prison time credit in addition to

jail time credit. Any period of incarceration in the Lake Erie Correctional Institution would

not properly be included in the trial court’s calculation of credit since calculations for time

served in prison are to be completed by the department of rehabilitation and corrections.

“Under R.C. 2929.19(B)(2)(g)(i), ‘the number of days that the offender has been confined

for any reason arising out of the offense for which the offender is being sentenced,’

otherwise known as jail time, ‘shall not include the number of days, if any, that the offender

previously served in the custody of the department of rehabilitation and correction,’

otherwise known as prison time. R.C. 2929.19(B)(2)(g)(i), therefore, precludes a

sentencing court from calculating the number of days appellant previously served in

prison when determining jail-time credit.” State v. Fisher, 10th Dist. Franklin No. 16AP-

402, 2016-Ohio-8501, ¶ 14; also State v. Price, 4th Dist. Athens Nos. 19CA14, et al.,

2020-Ohio-6702, ¶ 33 (“[T]he trial court did not err or abuse its discretion in failing to

specifically include Price’s days served in the custody of ODRC in its jail-time credit

calculation. Rather, it is the duty of ODRC to determine that figure and reduce Price’s

prison sentence in accordance with R.C. 2967.191.”). Thus, there was no error by the

trial court declining to calculate prison time credit.

       {¶25} As to jail time credit, the duty to calculate such credit “lies solely with the

trial court which imposes the actual sentence” and “the final determination of the amount

of credit should be contained in the final sentencing judgment.” (Citations omitted.) State


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Case Nos. 2020-P-0068, 2020-P-0069
v. Ott, 11th Dist. Portage No. 2012-P-0010, 2012-Ohio-4471, ¶ 26; Davis v. Bobby, 11th

Dist. Trumbull No. 2007-T-0063, 2007-Ohio-5610, ¶ 7 (“the duty to complete the

calculation lies solely with the trial court which imposes the actual sentence”). “R.C.

2949.12 provides that the final sentencing order in a criminal case must specify ‘the total

number of days, if any, that the felon was confined for any reason prior to conviction and

sentence.’” Gunther v. Dept. of Corr. & Rehab., 11th Dist. Trumbull No. 2010-T-0010,

2010-Ohio-2405, ¶ 3.

       {¶26} Here, the trial court cited various periods of time where Feathers had

received or is entitled to receive jail time credit, including 152 days of credit in 2005, 214

days served from December 6, 2007, to July 7, 2008, and five days “after judicial release,”

although it did not state an overall “total” period of jail time credit. We do not find error in

the individual calculations of jail time credit, nor do the parties take issue with these

numbers. We do emphasize, however, that the total amount of jail time credit should be

clearly stated in order to inform the reception facility of the proper amount of time to be

served.

       {¶27} Further, the trial court’s entry stated the following: “Defendant shall receive

credit for all the time served in the Portage County Jail and prison in this matter. That

time shall be calculated by the reception facility.” “[T]he DRC ‘has not been afforded any

discretion to decide what amount of credit must be given; instead, its role is limited to

enforcing the credit as determined by the trial court.’” Ott at ¶ 26, citing Davis at ¶ 6.

While the court may have intended this statement to apply to credit for other matters such

as transportation to the prison, which the department of rehabilitation and correction

calculates, we will not make such an assumption. The order of the court could not require


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the department of rehabilitation and corrections to calculate credit for time served in the

county jail awaiting trial and sentencing.

       {¶28} Based on these facts, we modify the trial court’s judgment to clarify that the

total amount of jail time credit to which Feathers is entitled is 371 days. We further modify

the court’s judgment that “Defendant shall receive credit for all the time served in the

Portage County Jail and prison in this matter. That time shall be calculated by the

reception facility,” to require that the reception facility calculate only prison time served

and the number of days of confinement between the entry of sentence and commitment

to the department of rehabilitation and correction.

       {¶29} The third assignment of error is with merit, to the extent discussed above.

       {¶30} For the foregoing reasons, the judgment of the Portage County Court of

Common Pleas is affirmed in part and affirmed as modified in part. Costs to be taxed

against the parties equally.



CYNTHIA WESTCOTT RICE, J.,

THOMAS R. WRIGHT, J.,

concur.




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