[Cite as State v. Ferguson, 2015-Ohio-5516.]


                                       COURT OF APPEALS
                                      PERRY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



                                                  JUDGES:
STATE OF OHIO                                     Hon. Sheila G. Farmer, P. J.
                                                  Hon. John W. Wise, J.
        Plaintiff-Appellee                        Hon. Patricia A. Delaney, J.

-vs-                                              Case Nos. 15 CA 00009 and
                                                            15 CA 00010
BRYAN K. FERGUSON

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case Nos. 11 CR 0070 and 11 CR
                                               0102


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        December 28, 2015



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOSEPH A. FLAUTT                               VALERIE K. WIGGINS
PROSECUTING ATTORNEY                           107 South Main Street
CINDY M. O’NEIL                                New Lexington, Ohio 43764
ASSISTANT PROSECUTOR
111 North High Street, P. O. Box 569
New Lexington, Ohio 43764
Perry County, Case Nos. 15 CA 00009 and 15 CA 00010                                       2

Wise, J.

       {¶1}   Appellant Bryan Ferguson appeals from the decisions of the Court of

Common Pleas, Perry County, which denied his motion for jail-time credit following his

incarceration for violating community control. Appellee is the State of Ohio. The relevant

facts leading to this consolidated appeal, stemming from two trial court cases, are as

follows.

                  Background of Common Pleas Case No. 11-CR-0070

       {¶2}   On July 21, 2011, in case number 11-CR-0070, appellant was indicted on

two counts of breaking and entering (R.C. 2911.13(A), felonies of the fifth degree), one

count of theft (R.C. 2913.02(A)(1), a misdemeanor of the first degree), and one count of

attempted theft (R.C. 2913.02(A)(1) and 2923.02(A), a misdemeanor of the second

degree).

       {¶3}   On February 9, 2012, appellant entered pleas of guilty to all counts as

charged. Appellant was placed on community control for a period of five years, with the

condition that he serve ninety days in jail.

                  Background of Common Pleas Case No. 11-CR-0102

       {¶4}   On November 18, 2011, in case number 11-CR-0102, while the above

charges were pending, appellant was indicted on one count of breaking and entering

(R.C. 2911.13(A), a felony of the fifth degree), one count of possession of criminal tools

(R.C. 2923.24(A), a felony of the fifth degree), and one count of theft (R.C. 2913.02(A)(1),

a misdemeanor of the first degree).

       {¶5}   On February 9, 2012, appellant entered pleas of guilty to all counts as

charged. Appellant was placed on community control for a period of five years, with the
Perry County, Case Nos. 15 CA 00009 and 15 CA 00010                                         3


condition that he spend ninety days in jail, with the incarceration period to run concurrently

with that in case number 11-CR-0070.

                            2013 Community Control Violation

       {¶6}   On April 12, 2013, appellant was charged with violating his community

control sanctions in case number 11-CR-0070. On May 15, 2013, appellant appeared

before the trial court and admitted to violating community control. The court decided to

continue his community control, but as an additional condition, appellant was ordered to

attend and successfully complete the community transition control program (“CTC”) in

Lancaster, Ohio.

                            2014 Community Control Violations

       {¶7}   On September 10, 2014, appellant was again charged with violating his

community control, this time under both 11-CR-0070 and 11-CR-0102. On October 20,

2014, appellant admitted to the violation in both cases. As a result, via a judgment entry

filed in each case on October 23, 2014, appellant's community control was revoked. The

trial court further sentenced him to prison for a period of eleven months in each case, for

a total of twenty-two months. Appellant was also given credit for 90 days of jail time served

under 11-CR-0070 and 207 days of jail time under 11-CR-0102. However, these periods

did not include credit for any days spent at the aforementioned treatment at CTC.

                         Appellant’s Request for Jail-Time Credit

       {¶8}   On February 18, 2015, appellant filed a motion for jail-time credit under both

case numbers, therein requesting credit for 103 claimed days of jail-time credit for his

CTC treatment, which he alleged had occurred from mid-June 2013 to late September
Perry County, Case Nos. 15 CA 00009 and 15 CA 00010                                      4


2013. On March 12, 2015, the trial court denied appellant's motion via judgment entries

in each case.   1


      {¶9}      On April 1, 2015, appellant filed a notice of appeal under each of the

aforesaid trial court case numbers. This Court consolidated the cases via judgment entry

on July 17, 2015.

      {¶10} Appellant herein raises the following two Assignments of Error:

      {¶11} “I.      THE     TRIAL     COURT         VIOLATED     THE      APPELLANT'S

CONSTITUTIONAL RIGHTS AND ABUSED ITS DISCRETION WHEN IT FAILED TO

GRANT THE APPELLANT CREDIT FOR TIME SERVED WHILE THE APPELLANT WAS

INCARCERATED IN COMMUNITY TRANSITION CONTROL. THE APPELLANT IS

NOW BEING UNLAWFULLY DETAINED.

      {¶12} “II.     THE     TRIAL     COURT         VIOLATED      THE     APPELLANT'S

CONSTITUTIONAL RIGHTS AND ABUSED ITS DISCRETION WHEN IT FAILED TO

CONDUCT A HEARING TO DETERMINE THE NATURE OF THE APPELLANT'S

CONFINEMENT AT COMMUNITY TRANSITION CONTROL BEFORE DENYING THE

APPELLANT'S MOTION FOR JAIL TIME CREDIT. THE APPELLANT IS NOW BEING

UNLAWFULLY DETAINED.”

                                           I., II.

      {¶13} In his First Assignment of Error, appellant contends the trial court abused

its discretion and violated his constitutional rights by denying his request for jail-time




1  Our reading of the trial court files indicates that the CTC requirement, which the court
added in 2013, was only ordered in 11-CR-0070, even though the subject motion for jail-
time credit was filed under both case numbers.
Perry County, Case Nos. 15 CA 00009 and 15 CA 00010                                          5


credit. In his Second Assignment of Error, appellant contends the trial court abused its

discretion and violated his constitutional rights by failing to conduct a hearing on the issue.

       {¶14} R.C. 2967.191 states in pertinent part as follows:

               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, including confinement in lieu of bail while

       awaiting trial, confinement for examination to determine the prisoner's

       competence to stand trial or sanity, confinement while awaiting

       transportation to the place where the prisoner is to serve the prisoner's

       prison term, as determined by the sentencing court under division

       (B)(2)(g)(i) of section 2929.19 of the Revised Code, and confinement in a

       juvenile facility. ***.


       {¶15} Accordingly, “[t]ime spent in a rehabilitation facility where one's ability to

leave whenever he or she wishes is restricted may be confinement for the purposes of

R.C. 2967.191.” State v. Osborne, 5th Dist. Richland No. 2009CA0119, 2010-Ohio-4100,

¶ 14, citing State v. Napier, 93 Ohio St.3d 646, 758 N.E.2d 1127, 2001-Ohio-1890.

Nonetheless, we have recognized that an appeal of a jail-time credit denial is moot where

the defendant-appellant has completed his prison sentence. See State v. Black, 5th Dist.

Richland No. 09-CA-153, 2010-Ohio-2594; State v. Owens, 5th Tuscarawas App.No.

2004 AP 03 0022, 2004-Ohio-4604.
Perry County, Case Nos. 15 CA 00009 and 15 CA 00010                                     6


      {¶16} Appellant states in his brief that “the issue will be moot before the case can

be remanded for further review ***.” See Appellant’s Brief at 7. Specifically, appellant

submits that with the 103 days of requested credit applied, he would have been entitled

to release on July 2, 2015. Id. at 3. Based on this, we must conclude that appellant has

by now completed his community control violation sentences imposed by the trial court

on October 23, 2014.

      {¶17} Appellant’s First and Second Assignments of Error are therefore found

moot, and we thus will not reach an analysis of the CTC program in regard to R.C.

2967.191, supra.

      {¶18} For the reasons stated in the foregoing opinion, the judgments of the Court

of Common Pleas, Perry County, Ohio, are hereby affirmed.



By: Wise, J.

Farmer, P. J., and

Delaney, J., concur.




JWW/d 1209
