[Cite as State v. Durant,

.] STATE OF OHIO, BELMONT COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 15 BE 0010 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) CHARLES DANIEL DURANT ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 13 CR 089

JUDGMENT: Affirmed. Sentence Modified.

APPEARANCES:

For Plaintiff-Appellee: Atty. Daniel P. Fry Belmont County Prosecutor Atty. Scott Lloyd Assistant Prosecuting Attorney 147-A West Main Street St. Clairsville, Ohio 43950

For Defendant-Appellant: Atty. Daniel M. Balgo Atty. Scot M. McMahon Balgo & Kaminski, L.C. 52171 National Road Suite 4 St. Clairsville, Ohio 43950

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: December 15, 2016 [Cite as State v. Durant,

.] WAITE, J.

{¶1} Appellant Charles Daniel Durant appeals a February 3, 2015 Belmont

County Common Pleas Court sentencing entry. Appellant argues that, pursuant to

R.C. 2929.13(B)(1), the trial court should have sentenced him to community control

rather than incarceration. Appellant additionally argues that he was not given jail-

time credit for a thirteen-day period for which he was held pending sentencing. The

state concedes that Appellant is entitled to an additional thirteen days of jail-time

credit. However, the state contends that the trial court’s sentence is proper based on

R.C. 2929.12 and R.C. 2929.13. For the reasons provided, Appellant’s sentence is

affirmed in part and modified in part to grant an additional thirteen days of jail-time

credit.

Factual and Procedural History

{¶2} On April 1, 2013, Appellant was arraigned on two counts of trafficking in

drugs, a felony of the fifth degree in violation of R.C. 2924.03(A)(1)(a)(4). On May

13, Appellant signed a drug court plea agreement. Also on May 5, 2013, the trial

court held a plea hearing where Appellant pleaded guilty to both counts and entered

into the drug court program.

{¶3} After entering drug court, Appellant was found to be in noncompliance

on several occasions. After the fifth such finding on November 15, 2013, Appellant

was sanctioned to Eastern Ohio Corrections Center. On October 10, 2014, Appellant

was found noncompliant and was given seven days in jail. On December 23, 2014

and December 29, 2014, Appellant tested positive for cocaine. On January 8, 2015,

the state filed a motion with the court seeking to terminate Appellant from drug court. -2-

On January 20, 2015, Appellant self-terminated from drug court. A hearing was held

on February 2, 2015 where the trial court acknowledged Appellant’s self-termination

and sentenced him to twelve months of incarceration on each count. The court

ordered his sentences to run consecutively for an aggregate total of 24 months of

incarceration. The trial court additionally suspended his driver’s license for three

years effective February of 2015. This timely appeal followed.

FIRST ASSIGNMENT OF ERROR

THE TRIAL COURT'S SENTENCE WAS CONTRARY TO LAW AND

THE COURT ABUSED ITS DISCRETION IN IMPOSING A JAIL

SENTENCE.

{¶4} Appellant contends that a trial court is required to sentence an offender

to a community control sanction if: the most serious offense the offender is convicted

of or pleads guilty to is a felony of the fourth or fifth degree, the offender has no

previous felony convictions, the court properly makes a request, and the offender has

not been found guilty of a misdemeanor within the past two years. Appellant

acknowledges that there are exceptions to R.C. 2929.13(B)(1)(a); however, he

argues that none of these exceptions apply, here. While Appellant concedes that he

self-terminated from drug court, he urges that the trial court was required by R.C.

2929.11 to choose the least restrictive penalty. Appellant asserts that instead the

trial court imposed the most restrictive penalty, incarceration.

{¶5} Citing State v. Chandler, 10th Dist. Nos. 04AP-895, 04AP-897, 04AP-

898,

, the state responds by arguing that even if the R.C. -3-

2929.13(B)(1)(a) factors do not apply, a trial court has discretion to sentence an

offender to prison based on the seriousness and recidivism factors found in R.C.

2929.12. The state also notes that the trial court warned Appellant that if he self-

terminated from drug court, he would be subject to stricter sanctions.

{¶6} R.C. 2929.13(B)(1)(a) states:

Except as provided in division (B)(1)(b) of this section, if an offender is

convicted of or pleads guilty to a felony of the fourth or fifth degree that

is not an offense of violence or that is a qualifying assault offense, the

court shall sentence the offender to a community control sanction of at

least one year's duration if all of the following apply:

(i) The offender previously has not been convicted of or pleaded guilty

to a felony offense.

(ii) The most serious charge against the offender at the time of

sentencing is a felony of the fourth or fifth degree.

(iii) If the court made a request of the department of rehabilitation and

correction pursuant to division (B)(1)(c) of this section, the department,

within the forty-five-day period specified in that division, provided the

court with the names of, contact information for, and program details of

one or more community control sanctions of at least one year's duration

that are available for persons sentenced by the court. -4-

(iv) The offender previously has not been convicted of or pleaded guilty

to a misdemeanor offense of violence that the offender committed

within two years prior to the offense for which sentence is being

imposed.

{¶7} However, pursuant to R.C. 2929.13(B)(1)(b):

The court has discretion to impose a prison term upon an offender who

is convicted of or pleads guilty to a felony of the fourth or fifth degree

that is not an offense of violence or that is a qualifying assault offense if

any of the following apply:

(i) The offender committed the offense while having a firearm on or

about the offender's person or under the offender's control.

(ii) If the offense is a qualifying assault offense, the offender caused

serious physical harm to another person while committing the offense,

and, if the offense is not a qualifying assault offense, the offender

caused physical harm to another person while committing the offense.

(iii) The offender violated a term of the conditions of bond as set by the

court.

(iv) The court made a request of the department of rehabilitation and

correction pursuant to division (B)(1)(c) of this section, and the

department, within the forty-five-day period specified in that division, did

not provide the court with the name of, contact information for, and -5-

program details of any community control sanction of at least one year's

duration that is available for persons sentenced by the court.

(v) The offense is a sex offense that is a fourth or fifth degree felony

violation of any provision of Chapter 2907. of the Revised Code.

(vi) In committing the offense, the offender attempted to cause or made

an actual threat of physical harm to a person with a deadly weapon.

(vii) In committing the offense, the offender attempted to cause or

made an actual threat of physical harm to a person, and the offender

previously was convicted of an offense that caused physical harm to a

person.

(viii) The offender held a public office or position of trust, and the

offense related to that office or position; the offender's position obliged

the offender to prevent the offense or to bring those committing it to

justice; or the offender's professional reputation or position facilitated

the offense or was likely to influence the future conduct of others.

(ix) The offender committed the offense for hire or as part of an

organized criminal activity.

(x) The offender at the time of the offense was serving, or the offender

previously had served, a prison term. -6-

(xi) The offender committed the offense while under a community

control sanction, while on probation, or while released from custody on

a bond or personal recognizance.

{¶8} While the state cites to Chandler, this case predated several changes to

the relevant statute, R.C. 2929.13. Prior to March 22, 2013, R.C. 2929.13(B)(3)(a)

read as follows:

If the court makes a finding described in division (B)(2)(a), (b), (c), (d),

(e), (f), (g), (h), or (i) of this section and if the court, after considering the

factors set forth in section 2929.12 of the Revised Code, finds that a

prison term is consistent with the purposes and principles of sentencing

set forth in section 2929.11 of the Revised Code and finds that the

offender is not amenable to an available community control sanction,

the court shall impose a prison term upon the offender.

Effective March 22, 2013, section (B)(3) was deleted from the statute. As Appellant

was arrested and charged on March 28, 2013, Appellant was subject to the revised

version of the statute. As such, the trial court’s reliance on the previous version of

R.C. 2929.13(B)(3) is misplaced.

{¶9} However, the Eleventh District recently held that the presumption of

community control found within R.C. 2929.13(A) does not apply if an offender

pleaded guilty to or was convicted of multiple felonies of the fourth or fifth degree.

State v. Parrado, 11th Dist. No. 2015-T-0069,

, ¶ 23. The Court -7-

reasoned that if the legislature intended to apply the statute to cases involving

multiple charges, it would have pluralized the term “felony.”

{¶10} Based on a plain reading of the statute, we agree with the Eleventh

District. Even so, we note that the trial court did attempt to impose the least

restrictive penalty in this case. Drug court is similar to the concept of bond, in that a

defendant can avoid incarceration if he complies with certain conditions. If those

conditions are not met, more restrictive penalties can be imposed, such as

incarceration. Here, Appellant agreed to participate in drug court and avoided

immediate incarceration. However, he was found in violation of drug court on several

occasions and eventually self-terminated from the program. As he violated the terms

of the least restrictive penalty, the trial court did not abuse its discretion by imposing

a more restrictive penalty. Accordingly, Appellant’s first assignment of error is

without merit and is overruled.

SECOND ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN FAILING TO CREDIT APPELLANT

WITH THE CORRECT AMOUNT OF TIME SERVED IN THE

JUDGMENT ENTRY.

{¶11} Appellant argues that he was not given jail-time credit for 13 days in

which he was held while awaiting sentencing. Consequently, he argues that he is

entitled to 213 days of jail-time credit instead of the 200 days awarded by the trial

court. The state has confessed judgment on this issue. -8-

{¶12} Pursuant to R.C. 2967.191, “the department of rehabilitation and

correction credits jail-time served but the trial court calculates the number of days

that can constitute jail-time credit.” State v. Mason, 7th Dist. No.

,

, citing State v. Frazier, 8th Dist. No. 86984,

; Ohio Adm.Code 5120–04(B). R.C. 2967.191 provides that:

The department of rehabilitation and correction shall reduce the stated

prison term of a prisoner or, if the prisoner is serving a term for which

there is parole eligibility, the minimum and maximum term or the parole

eligibility date of the 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.

{¶13} “A reviewing court may modify or vacate the trial court’s jail-time-credit

computation if it clearly and convincingly finds that the awarded credit is contrary to

law.” State v. Bowden, 1st Dist. No. C-140462,

, citing R.C.

2953(G)(2)(b); State v. Hargrove, 1st Dist. No. C-140416,

.

{¶14} According to the trial court’s February 3, 2015 sentencing entry,

Appellant was given 200 days of jail-time credit. According to a probation department

report attached to the state’s brief, Appellant was given credit for the following time

periods: 1 day from 3/28/13, 17 days from 8/5/13 to 8/21/13, 39 days from 11/4/13 to

12/12/13, 119 days from 12/13/13 to 4/10/14, 8 days from 10/10/14 to 10/17/14, and

16 days from 1/5/15 to 1/20/15. However, both parties agree that Appellant was not

released on January 20, 2015. Instead, he was held an additional 13 days until his -9-

sentencing hearing on February 2, 2015. Accordingly, Appellant’s second

assignment of error has merit and is sustained.

Conclusion

{¶15} Appellant contends that the trial court’s sentence is the most restrictive

punishment he could have received and is improper pursuant to R.C. 2929.13.

However, Appellant was convicted of multiple fifth-degree penalties, and the trial

court had already attempted to impose the least restrictive penalty, drug court.

Appellant also argues that the trial court improperly gave him 200 days of jail-time

credit when he was entitled to 213 days. As Appellant served an additional 13 days

for which he was not given credit, we modify his sentence to properly reflect those

days. However, Appellant’s sentence is affirmed in all other respects.

Donofrio, P.J., concurs.

DeGenaro, J., concurs.