[Cite as State v. Clark,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 26673

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE GREGORY S. CLARK COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 11 12 3566

DECISION AND JOURNAL ENTRY

Dated: July 10, 2013

BELFANCE, Presiding Judge.

{¶1} Defendant-Appellant appeals from the judgment of the Summit County Court of

Common Pleas. For the reasons set forth below, we affirm in part and reverse in part.

I.

{¶2} In January 2012, Mr. Clark was indicted on one count of aggravated possession

of drugs, one count of possessing criminal tools, one count of possessing drug abuse instruments,

one count of obstructing official business, five counts of breaking and entering, and six counts of

receiving stolen property. Later a supplemental indictment was filed charging Mr. Clark with

two more counts of receiving stolen property. Ultimately, Mr. Clark pleaded guilty to

aggravated possession of drugs, obstructing official business, one count of breaking and entering,

and one count of receiving stolen property. The trial court sentenced Mr. Clark to an aggregate

term of 30 months but suspended the sentence on the condition that Mr. Clark complete three 2

years of community control, which included the condition that Mr. Clark successfully complete

the Community Based Correctional Facility Program (“CBCFP”) at Oriana House.

{¶3} Mr. Clark was subsequently discharged from the program at Oriana House

without completing it. The trial court held a hearing on the violation and found Mr. Clark guilty

of violating the terms of his community control and imposed the previously suspended sentence.

Mr. Clark has appealed, raising six assignments of error for our review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FOUND CLARK GUILTY OF THE COMMUNITY CONTROL VIOLATION BECAUSE THE EVIDENCE WAS INSUFFICIENT TO SUPPORT SUCH A FINDING.

{¶4} Mr. Clark asserts in his first assignment of error that there was insufficient

evidence to support the trial court’s finding that Mr. Clark violated the conditions of his

community control. We do not agree.

{¶5} “[T]his Court has written that there are ‘competing views as to whether the State’s

burden of proof in instances of community-control violations is “substantial evidence” or

“preponderance of the evidence.”’” State v. Tooley, 9th Dist. Medina Nos. 09CA0098-M,

09CA0099-M, 09CA0100-M,

, quoting State v. Ricks, 9th Dist. Medina No.

09CA0094–M, 2010–Ohio–4659, ¶ 9, quoting State v. Walton, 9th Dist. Lorain No.

09CA009588, 2009–Ohio–6703, ¶ 14–16. We conclude we do not need to determine the correct

burden at this time because Mr. Clark does not raise the issue, and the State maintains that the

evidence presented would meet either burden. See Tooley at ¶ 2. We agree with the State’s

assertion. 3

{¶6} Mr. Clark acknowledges that one of the conditions of his community control was

that he successfully complete the CBCFP. Additionally, he does not contest that he was

terminated from the CBCFP without successfully completing it. Instead, his argument on appeal

is essentially that there was insufficient evidence he violated the CBCFP rules, and thus, there

was insufficient evidence that he violated a condition of his community control. Basically, Mr.

Clark asserts 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 (i.e. he technically violated community control

by not completing the program but the failure to complete the program was not his fault) or a

defense to the revocation upon the finding of a violation (i.e. he violated community control, but

he should not be sent to prison because the termination was not justified because the contraband

was not his). 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.

{¶7} At the hearing, the State presented the testimony of Danielle Sampson, who was

employed with Summit County Adult Probation Department as an adult probation officer;

however, she was not Mr. Clark’s probation officer. Nonetheless, Ms. Sampson discussed Mr.

Clark’s case with his probation officer. Ms. Sampson testified that it is typical for the probation

officer to review the rules with the probationer when he or she is first assigned to the probation

officer. The State presented as an exhibit a copy of the Summit County Adult Probation

Department Rules which were signed by Mr. Clark and his probation officer and included that

the rule that Mr. Clark “must complete CBCF successfully.” The State also submitted as

evidence Mr. Clark’s journal entry of conviction which listed as condition five of Mr. Clark’s 4

community control that Mr. Clark enter “and successfully complete the [CBCFP] operated by the

Oriana House and follow through with all aftercare counseling and treatment as directed.” In

addition, the State presented as an exhibit a letter to Mr. Clark, signed by Mr. Clark’s probation

officer indicating that Mr. Clark violated condition five of his community control when he was

“terminated from the program on 9/20/12 for having K-2 in [his] possession.” The letter was

signed by Mr. Clark as having been received by him. It is arguable that the evidence discussed

above would alone be sufficient to demonstrate that Mr. Clark violated his community control.

The letter evidences that Mr. Clark was terminated from the CBCFP and that the termination was

for cause and not for something outside of his control. See State v. Pullen-Morrow, 2d Dist.

Montgomery No. 24862,

. Moreover, the evidence supports the conclusion

that Mr. Clark was aware of the conditions of his community control.

{¶8} However, for purposes of our sufficiency analysis, even assuming that it was

necessary for the trial court to be presented with more evidence that Mr. Clark was terminated

from the CBCFP for good cause, such testimony was presented. Clarence Allen, an employee of

Oriana House, testified to finding Mr. Clark with prohibited items. Mr. Allen testified that:

I went into the bed area where Mr. Clark and two other clients were at. They were sitting in the back area of the facility. I smelled a loud smell of weed in the area. I walked to the back of the facility where the three gentlemen were sitting. Mr. Clark was sitting against his locker on the stool. Mr. McCoy was sitting on his bed, and another resident, Craig Consilio, he was sitting against the wall on a stool. * * * When I walk[ed] up, Mr. McCoy [was] reading the paper[.] * * * I ask[ed] the question, “What’s going on?” They all kind of answer the same, “We’re just sitting here, reading the paper, talking about the paper.” I asked the three gentlemen to stand up. They all stand up at the same time. Mr. McCoy jumps up from his bed, walks in front of me. * * * [T]hat’s when I immediately asked them to walk up to the intake area where I could be assisted by other staff.

{¶9} At that point Mr. Allen found what was described as a half-smoked joint under

Mr. Clark’s left foot. Mr. Allen confiscated the rolled substance. He indicated that, since 5

ultimately the three men tested negative for marijuana, the substance was presumed to be K-2

which the facility did not have the capability to test for at the time. Mr. Allen indicated that

anyone using K-2 would be terminated from the facility. He stated that, while the clients could

possess brand-name cigarettes, they could not possess hand-rolled cigarettes or rolling papers

and that such was considered contraband. Mr. Allen testified that possession of “any contraband

could be subject to termination.” Mr. Allen stated that the joint he picked up from under Mr.

Clark’s foot did not smell like brand-name cigarettes, but instead smelled like “weed[.]”

{¶10} In light of the foregoing, we conclude that the trial court was presented with

sufficient evidence that Mr. Clark violated community control by unsuccessfully completing the

CBCFP. Moreover, there was sufficient evidence that Mr. Clark was terminated from the

program for cause. Mr. Clark’s first assignment of error is overruled.

ASSIGNMENT OF ERROR II

CLARK’S CONVICTION FOR COMMUNITY CONTROL VIOLATION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶11} Mr. Clark asserts in his second assignment of error that the trial court’s finding

that he violated community control was against the manifest weight of the evidence. We do not

agree.

{¶12} This Court applies the same standard of review in reviewing both civil and

criminal challenges to the weight of the evidence. See Eastley v. Volkman,

,

. Thus,

[t]he [reviewing] court * * * weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.

(Internal quotations and citations omitted.) Id. at ¶ 20. 6

{¶13} Mr. Clark testified and essentially denied that he possessed the contraband at

issue. Mr. Clark testified that the contraband found was not his, that he did not smoke it, and

that he had never smoked K-2. Mr. Clark also stated that the item was found on the ground and

was not under his foot. Further, Mr. Clark testified concerning all the portions of the CBCFP

that he did manage to complete during his stay.

{¶14} Mr. Clark essentially reiterates the same arguments he made with respect to the

sufficiency of the evidence, which we have previously found to be without merit. In addition, he

argues that there was no evidence presented that the substance contained in the rolled cigarette

was K-2 and that there was no evidence that K-2 has any odor. However, Mr. Clark does not

address the fact that, even assuming that the substance in the cigarette was not K-2, it was a

violation to possess hand-rolled cigarettes or rolling papers. Mr. Clark also points to the evidence

that the cigarette was not his and that it was not under his boot but rather on the floor. In

essence, he suggests that weight of the evidence compels the conclusion that the prohibited item

was not his. However, the trial court was presented with competing evidence on this point and,

in assessing the credibility of the witnesses, rejected Mr. Clark’s version of events. See State v.

Andrews, 9th Dist. Summit No. 25114,

, ¶ 28. In light of the evidence presented

and the trial court’s opportunity to assess the demeanor of the witnesses, we cannot say the trial

court was unreasonable in finding Mr. Allen’s testimony more credible. Mr. Allen testified that

he found contraband under Mr. Clark’s foot, and the possession of contraband could lead to

termination from the program. Accordingly, upon review of the record, we cannot say that the

trial court lost its way and committed a manifest miscarriage of justice when it determined that

Mr. Clark violated his community control. Mr. Clark’s assignment of error is overruled. 7

ASSIGNMENT OF ERROR III

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY SENTENCING CLARK WITHOUT CREDITING THE NUMBER OF DAYS THAT HE WAS HELD IN DETE[N]TION OR INCARCERATION PRIOR TO HIS SENTENCE.

ASSIGNMENT OF ERROR IV

CLARK WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO OBJECT AT HIS SENTENCING HEARING THAT THE TRIAL COURT WAS REQUIRED TO DETERMINE CLARK’S NUMBER OF DAYS OF CONFINEMENT BEFORE SENTENCE WAS IMPOSED.

{¶15} Mr. Clark asserts in his third assignment of error that the trial court erred in

failing to calculate the credit for time served to which he was due before sentencing and to

include it in his sentencing entry. Mr. Clark asserts in his fourth assignment of error that his trial

counsel was ineffective for failing to object to the trial court’s failure to calculate jail-time credit.

We conclude that Mr. Clark’s third assignment of error has merit, and, therefore, Mr. Clark’s

fourth assignment of error is moot.

{¶16} The Supreme Court of Ohio has indicated that the failure of a trial court to

calculate jail-time credit is “remediable in the ordinary course of law by appeal or motion for

jail-time credit.” State ex rel. Williams v. McGinty,

,

;

see also R.C. 2929.19(B)(2)(g)(iii) (“The offender may, at any time after sentencing, file a

motion in the sentencing court to correct any error made in making a determination under

division (B)(2)(g)(i) of this section, and the court may in its discretion grant or deny that motion.

If the court changes the number of days in its determination or redetermination, the court shall

cause the entry granting that change to be delivered to the department of rehabilitation and

correction without delay.”). On September 28, 2012, the date of Mr. Clark’s sentencing hearing,

a new version of R.C. 2929.19 became effective. The revisions to R.C. 2929.19(B)(2)(g) have 8

clarified a trial court’s responsibilities in addressing jail-time credit. See State v. Papczun, 9th

Dist. Summit No. 26560,

(Belfance, J., concurring); State v.

Fitzgerald, 8th Dist. Cuyahoga No. 98723,

(Boyle, J., concurring). R.C.

2929.19(B)(2)(g)(i) now states:

Subject to division (B)(3) of this section, if the sentencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall * * * [d]etermine, notify the offender of, and include in the sentencing entry 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 and by which the department of rehabilitation and correction must reduce the stated prison term under section 2967.191 of the Revised Code. The court’s calculation shall not include the number of days, if any, that the offender previously served in the custody of the department of rehabilitation and correction arising out of the offense for which the prisoner was convicted and sentenced.

{¶17} Thus, the trial court did have a duty to determine Mr. Clark’s jail-credit at the

time of sentencing and memorialize that information in the October 3, 2012 sentencing entry.

See

We note that, while the trial court did not fulfill that duty at the time of sentencing, on

October 25, 2012, the trial court issued an entry granting Mr. Clark jail-time credit. However,

that October 25, 2012 entry was issued while this matter was on appeal. “An appeal is perfected

upon the filing of a written notice of appeal. R.C. 2505.04. Once a case has been appealed, the

trial court loses jurisdiction except to take action in aid of the appeal.” In re S.J.,

,

, ¶ 9. While it is true that “[t]he trial court retains jurisdiction over issues

not inconsistent with the appellate court’s jurisdiction to reverse, modify, or affirm the judgment

appealed from[,]” the trial court’s October 25, 2012 entry awarding jail-time credit interfered and

was inconsistent with this Court’s jurisdiction.

Accordingly, the trial court lacked

jurisdiction to award jail-time credit in light of the appeal pending before this Court. The trial

court’s October 25, 2012 entry is therefore void. See Smith v. Smith, 9th Dist. Summit No. 9

24993,

. Accordingly, we sustain Mr. Clark’s third assignment of error and

remand the matter so that the trial court can comply with R.C. 2929.19(B)(2)(g).

{¶18} Further, because of this, Mr. Clark’s fourth assignment of error has been rendered

moot, and we decline to address it. See App.R. 12(A)(1)(c).

ASSIGNMENT OF ERROR V

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN ASSESSING ATTORNEY FEES AGAINST DEFENDANT WITHOUT COMPLYING WITH MAKING AN “ABILITY TO PAY” FINDING AS REQUIRED UNDER R.C. 2941.51(D).

ASSIGNMENT OF ERROR VI

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO ARGUE THAT THE TRIAL COURT’S IMPOSITION OF ATTORNEY FESS UNDER R.C. 2941.51(D) WAS DEFECTIVE.

{¶19} Mr. Clark asserts in his fifth assignment of error that the trial court failed to make

an ability-to-pay finding as required by R.C. 2941.51(D). Mr. Clark argues in his sixth

assignment of error that his trial counsel was ineffective for failing to object to the trial court’s

defective imposition of attorney fees.

{¶20} R.C. 2941.51(D) states in part that:

The fees and expenses approved by the court under this section shall not be taxed as part of the costs and shall be paid by the county. However, if the person represented has, or reasonably may be expected to have, the means to meet some part of the cost of the services rendered to the person, the person shall pay the county an amount that the person reasonably can be expected to pay.

{¶21} This Court has held that the trial court “‘must make a determination that the

defendant is financially capable of paying for his appointed counsel before assessing court-

appointed attorney fees.’” State v. Malone, 9th Dist. Lorain No. 09CA009732,

,

¶ 11, quoting State v. Warner, 9th Dist. Lorain No. 96CA0065341,

, *3 (Sept.

21, 2001). Further, we have stated that, when the trial court fails to determine that the defendant 10

has the ability to pay at either the sentencing hearings or in the sentencing entries but nonetheless

orders the defendant to pay attorney fees, the trial court fails to comply with R.C. 2941.51(D).

See State v. Lamb, 9th Dist. Summit No. 25478,

(noting trial court failure

to make an ability-to-pay finding on the record at either the sentencing hearing or in the

sentencing entry was reversible error); Malone at ¶ 12 (“The trial court did not make an ability-

to-pay finding at either of Mr. Malone’s sentencing hearings or in either of its sentencing entries.

It, therefore, incorrectly ordered Mr. Malone to pay the court-appointed attorney fees.”); see also

State v. El-Jones, 9th Dist. Summit No. 26136,

(concluding that the

failure to inform defendant that he would be responsible for his attorney fees at the time of

sentencing constituted reversible error); State v. Rusu, 9th Dist. Summit No. 25597, 2012-Ohio-

2613, ¶ 13.

{¶22} In the instant matter, the record reveals that, when Mr. Clark was initially

sentenced in June 2012, a pre-sentence investigation report was ordered and used by the trial

court at sentencing. That report is not a part of this Court’s record. See App.R. 9(B). When the

trial court was ordering Mr. Clark to pay attorney fees at the June 2012 sentencing hearing, the

trial court briefly inquired into Mr. Clark’s work history. Then, in that sentencing entry, the trial

court found that its imposition of attorney fees was “based upon the Defendant’s present and

future ability to pay[.]” At the September 2012 sentencing hearing, the trial court again ordered

Mr. Clark to pay attorney fees. It is unclear if the trial court had before it at the September 2012

sentencing hearing the pre-sentence investigation report from June 2012. In the related

sentencing entry journalized in October 2012, the trial court again stated that the imposition of

attorney fees was “based upon the Defendant’s present and future ability to pay[.]” 11

{¶23} We conclude that the trial court complied with R.C. 2941.51(D) and our

precedent interpreting that statute. The trial court informed Mr. Clark that it was ordering him to

pay attorney fees and made an ability-to-pay finding in its judgment entry. Mr. Clark has not

asserted on appeal that the trial court had no basis upon which to make the finding it did given

the evidence before it. See State v. Williams, 6th Dist. Lucas No. L-11-1084,

, ¶

51. Furthermore, Mr. Clark had the opportunity at sentencing to contest his ability to pay the

attorney fees but did not do so. Mr. Clark’s fifth assignment of error is overruled. Additionally,

because we have determined there was no error in the trial court’s compliance with R.C.

2941.51(D), Mr. Clark cannot demonstrate his trial counsel’s failure to challenge the trial court’s

imposition of attorney fees was ineffective. See El-Jones,

. Mr. Clark’s

sixth assignment of error is overruled.

III.

{¶24} In light of the foregoing, we sustain Mr. Clark’s third assignment of error and

overrule Mr. Clark’s remaining assignments of error. The matter is remanded to the Summit

County Court of Common Pleas for proceedings consistent with this opinion.

Judgment affirmed in part, reversed in part, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 12

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed equally to both parties.

EVE V. BELFANCE FOR THE COURT

CARR, J. WHITMORE, J. CONCUR.

APPEARANCES:

NEIL P. AGARWAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.