The Akron Legal News

9th District grants jail-time credit

ANNIE YAMSON
Special to the Legal News
Published: July 18, 2013

The 9th District Court of Appeals recently found the judgment of the Summit County Court of Common Pleas was sound in a case involving a defendant’s violation of his community control, but it reversed the case in part because the court failed to grant jail-time credit.

Gregory Clark was indicted in January 2012 on one count of aggravated possession of drugs, possessing criminal tools, possessing drug abuse instruments, obstructing official business, five counts of breaking and entering and eight counts of receiving stolen property.

Ultimately, Clark pleaded guilty to aggravated possession of drugs, obstructing official business and one count each of breaking and entering and receiving stolen property.

The Summit County court sentenced Clark to 30 months in prison but the sentence was suspended on the condition that he successfully complete three years of community control and the Community Based Correctional Facility Program at Oriana House.

When Clark was discharged from the program at Oriana House before completing it, the court found him to be in violation of the terms of his community control and it imposed the previously suspended prison sentence.

Upon appeal, Clark first argued that the trial court erred when it found him guilty of the community control violation.

Essentially, his argument stated that his failure to complete the Oriana House program was “not his fault.”

He asserted that he should not have been terminated from the CBCFP and, thus, should not have been found guilty of a community control violation.

“It would seem that Mr. Clark is actually either asserting a defense to the violation or a defense to the revocation upon the finding of a violation,” wrote Judge Eve Belfance on behalf of the Ninth District’s three-judge appellate panel.

“However, even assuming without deciding that Mr. Clark’s argument would go to whether there was sufficient evidence to support a violation, we conclude Mr. Clark’s argument is without merit.”

At the hearing on his violation, the state presented the testimony of Danielle Sampson.

She was not Clark’s probation officer but she was employed as an officer with the Summit County Adult Probation Department.

Sampson presented as evidence a copy of the probation department’s rules, which were signed by Clark and his officer and included the rule that Clark “must complete the CBCFP successfully.”

Also, Clark’s journal entry of conviction and a letter from his probation officer were also presented as evidence.

The letter indicated that Clark violated the conditions of his community control “when he was terminated from the program on Sept. 20, 2012 for having K-2 in (his) possession.”

“It is arguable that the evidence discussed above would alone be sufficient to demonstrate that Mr. Clark violated his community control,” wrote Belfance.

The appellate panel determined the letter demonstrated Clark was terminated from the CBCFP for cause, and not for something outside of his control, as he claimed.

Assuming it was necessary for the trial court to present even more evidence, the appellate panel noted further testimony was presented from Clarence Allen, an employee of Oriana House.

Allen testified he found “a half-smoked joint” under Clark’s left foot after he “smelled a loud smell of weed” in the bed area where Clark and two other clients were sitting.

Allen indicated the three men tested negative for marijuana so the substance was presumed to be K-2, which the facility did not have the capability to test for.

“In light of the foregoing,” wrote Belfance. “We conclude that the trial court was presented with sufficient evidence that Mr. Clark violated community control by unsuccessfully completing the CBCFP.”

However, the appellate panel ruled otherwise when it addressed another of Clark’s assignments of error in which he claimed the trial court committed reversible error by sentencing him without crediting the number of days he was held in detention prior to his sentence.

According to the Ohio Supreme Court and R.C. 2929.19, “The offender may, at any time after sentencing, file a motion in the sentencing court to correct any error made.”

On the date of Clark’s sentencing hearing, a new version of R.C. 2929.19 took effect.

The revision clarified a trial court’s responsibilities in addressing jail-time credit: “If the sentencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall determine, notify the offender of and include in the entry the number of days that the offender has been confined for any reason arising out of the offense ... and must reduce the stated prison term.”

In light of the revisions, the court of appeals found the trial court did have a duty to determine Clark’s jail credit at the time of sentencing.

“Accordingly, we sustain Mr. Clark’s assignment of error and remand the matter so that the trial court can comply with R.C. 2929.19,” concluded Belfance.

Clark asserted that there were other errors specifically, the imposition of attorney fees and the fact that his conviction was against the manifest weight of the evidence, but the appellate panel overruled his remaining arguments.

Judges Donna Carr and Beth Whitmore joined Belfance in affirming the judgment of the Summit County court and in remanding the case for the proper imposition of jail-time credit.

The case is cited State v. Clark, 2013-Ohio-2984.

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