[Cite as State v. Combs,

.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-190530 TRIAL NO. B-1803185B Plaintiff-Appellee, :

vs. : O P I N I O N.

TRULANCE COMBS, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Vacated in Part, and Cause Remanded

Date of Judgment Entry on Appeal: December 2, 2020

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Adam Tieger, Assisting Prosecuting Attorney, for Plaintiff-Appellee,

Roger W. Kirk, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

W INKLER , Judge.

{¶1} Defendant-appellant Trulance Combs appeals from the judgment of

the Hamilton County Court of Common Pleas revoking his community control and

imposing a prison sentence of eight years, with 129 days of confinement credit. He

argues that the trial court failed to properly consider R.C. 2929.11 and 2929.12 when

sentencing him and to award sufficient credit for his confinement before serving the

prison term.

{¶2} The record does not support Combs’s claim that the court failed to

consider the relevant sentencing statutes when imposing the eight-year prison term,

but it does show that Combs should have received additional confinement credit.

Thus, we vacate the confinement-credit calculation from his sentence and remand

the cause to the trial court for the proper calculation of the credit. In all other

respects, we affirm.

Facts and Procedural History

{¶3} In 2018, Combs was convicted of burglary, a second-degree felony,

after entering a guilty plea. The trial court ordered a presentence investigation,

which showed that Combs had never served a prison term but had a high risk of

recidivism. The trial court subsequently sentenced Combs to two years of

community control with intensive supervision. One condition of the community-

control sanction included the successful completion of the residential program at the

River City Correctional Center. The court also notified Combs that he would be

sentenced to an eight-year prison term, the maximum term for the offense, if he

violated the conditions of his community control.

2 OHIO FIRST DISTRICT COURT OF APPEALS

{¶4} In April 2019, Combs was charged with violating the conditions of his

community control. He pleaded guilty to that charge in August 2019. The trial court

then revoked Combs’s community control and, after a full sentencing hearing,

imposed an eight-year prison term. The court additionally indicated Combs would

be credited “for whatever time he’[d] served.” The clerk announced that the amount

appeared to be 129 days, but also indicated that amount may not have included the

days that Combs was confined at River City. The court then notified Combs he would

receive a “credit” of 129 days and included this credit in the sentencing entry.

Combs did not object when informed of the 129 days of credit.

Assignments of Error

{¶5} Both of Combs’s assignments of error involve his sentence. Pursuant

to R.C. 2953.08(G)(2)(a), we may modify or vacate a felony sentence only if we

clearly and convincingly find that the record does not support the trial court’s

findings under relevant statutes or that the sentence is contrary to law. State v.

Marcum,

,

,

, ¶ 1, quoted in State

v. Jackson, 1st Dist. Hamilton No. C-180162,

; State v. White,

,

, ¶ 5 (1st Dist.).

{¶6} We first address Combs’s second assignment of error. In essence, he

argues that his eight-year prison term is contrary to law. Specifically, Combs

contends the trial court failed to consider R.C. 2929.11 and 2929.12 when

determining an appropriate sentence.

{¶7} When sentencing Combs for his community-control violation, the trial

court was to be guided by the purposes of felony sentencing set forth in R.C. 2929.11

and the sentencing factors set forth in R.C. 2929.12. See State v. Fraley,

,

,

. But these are not fact-finding

3 OHIO FIRST DISTRICT COURT OF APPEALS

statutes, and absent an affirmative demonstration by Combs to the contrary, we may

presume that the trial court considered them. State v. Bedell,

,

(1st Dist.); State v. Patterson, 1st Dist. Hamilton No. C-170329,

. Combs argues that this court cannot presume the trial court

considered the statutes in this case because of the mitigating facts he presented. We

disagree.

{¶8} At the sentencing hearing for the community-control violation, the

trial court noted that Combs was placed on community control after a burglary

conviction and then violated the conditions of his community control in several

significant ways. He walked away from his work detail and failed to return to River

City. After absconding, he was charged in Kentucky with raping the mother of his

children in front of his children. The trial court also solicited facts in mitigation from

defense counsel and the defendant. These included that Combs was young, had a job

waiting for him, and had entered a guilty plea to a reduced sex offense in Kentucky.

In the end, though, the court imposed the eight-year prison term it had told Combs it

would impose if he violated the conditions of his community control. On this record,

Combs has not affirmatively demonstrated that the trial court failed to consider R.C.

2929.11 and 2929.12 when imposing sentence. Accordingly, we overrule the second

assignment of error.

{¶9} In his first assignment of error, Combs argues the trial court

committed plain error when it failed to properly calculate his credit for confinement.

According to Combs, he was not credited for confinement in accordance with the

credit afforded under R.C. 2967.191, including all of the days he was confined at

River City.

4 OHIO FIRST DISTRICT COURT OF APPEALS

{¶10} A felony offender sentenced to prison is entitled to a credit for 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.” R.C. 2967.191. The

trial court has the duty to determine this confinement credit at the sentencing

hearing and include in the sentencing entry the proper amount of the credit. R.C.

2929.19(B)(2)(g)(i). The amount of time served in a community-based correctional

facility qualifies as confinement under R.C. 2967.191 and should be credited towards

a prison sentence after conditions of the community sanctions are violated. See State

v. Napier,

,

(2001); State v. Whited, 12th

Dist. Butler No. CA2018-04-079,

.

{¶11} The trial court’s failure to properly calculate the amount of

confinement-time credit rises to the level of plain error and renders that part of the

sentence clearly and convincingly contrary to law. See State v. Hargrove, 1st Dist.

Hamilton No. C-120321,

. The state concedes that Combs was

not sufficiently credited for all of his confinement, including the time he was

confined at River City, a community-based correctional facility. Consequently, we

sustain the first assignment of error. The cause must be remanded for the trial court

to determine the proper amount of confinement credit to which Combs is entitled.

Conclusion

{¶12} Because the trial court did not properly calculate Combs’s confinement

credit, we vacate that part of Combs’s sentence, and we remand the cause for the trial

court to determine the proper amount of confinement credit to which Combs is

entitled. In all other respects, we affirm.

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

MYERS, P.J., and CROUSE, J., concur.

5 OHIO FIRST DISTRICT COURT OF APPEALS

Please note:

The court has recorded its own entry on the date of the release of this opinion.

6