[Cite as State v. Krause, 2018-Ohio-5175.]



                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 106612



                                             STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                         NICHOLAS KRAUSE

                                                        DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED



                                     Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                          Case Nos. CR-16-609974-B and CR-17-613196-A

        BEFORE: Laster Mays, J., E.A. Gallagher, A.J., and Kilbane, J.

        RELEASED AND JOURNALIZED:                    December 20, 2018
                                                  -i-
ATTORNEYS FOR APPELLANT

Mark Stanton
Cuyahoga County Public Defender

By: Paul Kuzmins
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Gregory J. Ochocki
          Anthony Thomas Miranda
Assistant County Prosecutors
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113



ANITA LASTER MAYS, J.:

       {¶1} Defendant-appellant Nicholas Krause (“Krause”) asks this court to award him

jail-time credit for the period of incarceration leading up to his sentencing hearing.   We affirm

the trial court’s decision to deny Krause’s jail-time credit.

       {¶2} On November 22, 2016, Krause pleaded guilty to one count of drug possession, a

fifth-degree felony, in violation of R.C. 2925.11(A). Before his plea hearing and after his arrest,

Krause spent 66 days in jail. At the plea hearing, Krause was ordered to report to the county

probation department for a presentence investigation (“PSI”) report. Krause was also advised

that he would be placed on postrelease control for up to three years. The trial court released
Krause and set a sentencing date for December 19, 2016.

       {¶3} On November 29, 2016, the court was notified by the probation department that

Krause failed to appear for his PSI appointment and that all attempts to notify Krause had been

made. The trial court issued a capias. On January 12, 2017, Krause was taken into custody

and on January 30, 2017, charged with escape, a fifth-degree felony, in violation of R.C.

2921.34(A)(3). On March 16, 2017, Krause was sentenced to two years of community control

supervision for drug possession.     Krause also pleaded guilty to escape, and the trial court

imposed two years of community control.      After a bed became available, Krause was placed in a

community-based correctional facility (“CBCF”) on April 25, 2017, with the conditions that he

successfully complete the CBCF program and follow all program recommendations, program

rules, and regulations. It was further ordered that if Krause fail to follow program rules and

regulation of the CBCF program, Krause may be taken into custody by the Cuyahoga County

Sheriff’s staff and returned to the Cuyahoga County jail and held without bond until further order

of the court. The trial court elected not to suspend Krause’s driving privileges.

       {¶4} On September 19, 2017, Krause was terminated from CBCF for bringing unknown

substances in his bookbag into the facility. The trial court found Krause in violation of his

community control sanctions, and sentenced Krause to 180 days in jail. Krause had entered

county jail on September 6, 2017. After sentencing, Krause filed several motions for jail-time

credit. The trial court denied all of his motions. Krause was released from county jail on

March 21, 2018. Krause filed this appeal assigning one error for our review:

       I.      The trial court erred in failing to give Mr. Krause jail-time credit for all of
               the time he spent incarcerated leading up to his sentence hearing.

I.     Jail-Time Credit
       A.      Standard of Review

       {¶5} Krause’s assigned error raises issues with his sentencing. “An appellate court must

conduct a meaningful review of the trial court’s sentencing decision. State v. Johnson, 8th Dist.

Cuyahoga No. 97579, 2012-Ohio-2508, ¶ 6, citing State v. Hites, 3d Dist. Hardin No. 6-11-07,

2012-Ohio-1892.” State v. Williams, 8th Dist. Cuyahoga No. 105903, 2018-Ohio-1297, ¶ 8.

       R.C. 2953.08(G)(2)(a) compels appellate courts to modify or vacate sentences if
       they find by clear and convincing evidence that the record does not support any
       relevant findings under “division (B) or (D) of section 2929.13, division (B)(2)(e)
       or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised
       Code.” See State v. Belew, 140 Ohio St.3d 221, 2014-Ohio-2964, 17 N.E.3d
       515, ¶ 12 (Lanzinger, J., dissenting from the decision to dismiss the appeal as
       having been improvidently accepted) (“R.C. 2953.08(G)(2) repudiates the
       abuse-of-discretion standard in favor of appellate review that upholds a sentence
       unless the court of appeals clearly and convincingly finds that the record does not
       support the trial court’s findings”).

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22.

       B.      Law and Analysis

       {¶6} In Krause’s sole assignment error, he argues that the trial erred when it did not

award him 322 days of jail-time credit.

       (A) When a person who is convicted of or pleads guilty to a felony is sentenced to
       a community residential sanction in a community- based correctional facility
       pursuant to section 2929.16 of the Revised Code or when a person who is
       convicted of or pleads guilty to a felony or a misdemeanor is sentenced to a term
       of imprisonment in a jail, the judge or magistrate shall order the person into the
       custody of the sheriff or constable, and the sheriff or constable shall deliver the
       person with the record of the person’s conviction to the jailer, administrator, or
       keeper, in whose custody the person shall remain until the term of imprisonment
       expires or the person is otherwise legally discharged.

       (B) The record of the person’s conviction shall specify the total number of days, if
       any, that the person was confined for any reason arising out of the offense for
       which the person was convicted and sentenced prior to delivery to the jailer,
       administrator, or keeper under this section. The record shall be used to determine
       any reduction of sentence under division (C) of this section.
       (C) (1) If the person is sentenced to a jail for a felony or a misdemeanor, the jailer
       in charge of a jail shall reduce the sentence of a person delivered into the jailer’s
       custody pursuant to division (A) of this section by the total number of days the
       person was confined for any reason arising out of the offense for which the person
       was convicted and sentenced, including confinement in lieu of bail while awaiting
       trial, confinement for examination to determine the person’s competence to stand
       trial or to determine sanity, confinement while awaiting transportation to the place
       where the person is to serve the sentence, and confinement in a juvenile facility.

       (2) If the person is sentenced to a community-based correctional facility for a
       felony, the total amount of time that a person shall be confined in a
       community-based correctional facility, in a jail, and for any reason arising out of
       the offense for which the person was convicted and sentenced prior to delivery to
       the jailer, administrator, or keeper shall not exceed the maximum prison term
       available for that offense. Any term in a jail shall be reduced first pursuant to
       division (C)(1) of this section by the total number of days the person was confined
       prior to delivery to the jailer, administrator, or keeper. Only after the term in a
       jail has been entirely reduced may the term in a community-based correctional
       facility be reduced pursuant to this division. This division does not affect the
       limitations placed on the duration of a term in a jail or a community-based
       correctional facility under divisions (A)(1), (2), and (3) of section 2929.16 of the
       Revised Code.

R.C. 2949.08(A), (B), (C)(1), and (2).

       {¶7} Despite Krause being sentenced to CBCF, we find that he was confined.

       “Confinement” is construed as time in which one is not free to come and go as he
       or she wishes. State v. Napier, 93 Ohio St.3d 646, 648, 2001-Ohio-1890, 758
       N.E.2d 1127 (2001). In Napier, the Ohio Supreme Court held that “all time served
       in a community-based correctional facility constitutes confinement for purposes of
       R.C. 2967.191.” (Emphasis added.) Id. at syllabus. Accord State v. Mullin, 8th
       Dist. Cuyahoga No. 105042, 2017-Ohio-939.

State v. Henderson, 8th Dist. Cuyahoga Nos. 106340 and 107334, 2018-Ohio-3168, ¶ 8.

       {¶8} Krause asks this court to award him jail-time credit, however, Krause was released

from jail on March 21, 2018. Krause has already served his sentence, and thus, cannot receive a

credit towards the time he was ordered to serve.   We find that this error is moot.   “This court is

obligated to dismiss an action where the issues raised in that action are moot. In re Affidavits

for Probable Cause, 8th Dist. Cuyahoga No. 103255, 2016-Ohio-856, ¶ 9, citing McBee v.
Toledo, 6th Dist. Lucas No. L-13-1101, 2014-Ohio-1555.” In re Grand Jury Subpoena for

Byrd, 8th Dist. Cuyahoga No. 106193, 2018-Ohio-3046, ¶ 7.

       [A]n appeal of a jail-time credit denial is moot where the defendant-appellant has
       completed his prison sentence. State v. Howard, 5th Dist. Richland No.
       10CA23, 2010-Ohio-4729, ¶ 9. Accord State v. Feagin, 6th Dist. Huron No.
       H-12-014, 2013-Ohio-1837, ¶ 4 (“[T]he issue of jail-time credit is moot once the
       sentence has been served because this issue relates only to the length of the
       sentence and not the underlying conviction * * * .”).

State v. Reeves, 9th Dist. Summit Nos. 28632, 28679, 28680, 28681, and 28682,

2017-Ohio-9139, ¶ 6.

       {¶9} There are exceptions to the mootness doctrine.

       An exception to the mootness doctrine is presented when issues are “capable of
       repetition, yet evading review.” State ex rel. Plain Dealer Publishing Co. v.
       Barnes, 38 Ohio St.3d 165, 527 N.E.2d 807 (1998), paragraph one of the syllabus.
        The Ohio Supreme Court has limited “this exception [to] exceptional
       circumstances in which the following two factors are both present: (1) the
       challenged action is too short in its duration to be fully litigated before its
       cessation or expiration, and (2) there is a reasonable expectation that the same
       complaining party will be subject to the same action again.” State ex rel.
       Calvary v. Upper Arlington, 89 Ohio St.3d 229, 231, 729 N.E.2d 1182 (2000).

In re Affidavits for Probable Cause, 8th Dist. Cuyahoga No. 103255, 2016-Ohio-856, ¶ 12.

       {¶10} We find that neither exception apply to Krause.      The issue of his jail-time credit

only related to the length of his sentence not his underlying conviction so there is not a

reasonable expectation that he will be subject to the same action again.

       {¶11} Krause’s sole assignment of error is overruled.

       {¶12} Judgment affirmed.

       It is ordered that the appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.


______________________________________
ANITA LASTER MAYS, JUDGE

EILEEN A. GALLAGHER, A.J., and
MARY EILEEN KILBANE, J., CONCUR
