[Cite as State v. Sturgell, 2013-Ohio-3518.]


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

STATE OF OHIO                                        C.A. No.      26618

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
KENNETH STURGELL, JR.                                COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE Nos. CR 11 04 1035
                                                                CR 11 03 0715

                                  DECISION AND JOURNAL ENTRY

Dated: August 14, 2013



        BELFANCE, Presiding Judge.

        {¶1}     Kenneth Sturgell appeals from his convictions in the Summit County Court of

Common Pleas. For the reasons set forth below, we affirm.

                                                I.

        {¶2}     Mr. Sturgell was indicted on one count of breaking and entering on March 29,

2011 (case CR-2011-03-0715). On April 29, 2011, Mr. Sturgell was indicted on one count of

domestic violence (CR-2011-04-1035). Mr. Sturgell pleaded guilty to both charges on May 23,

2011, and the trial court sentenced him to three years of community control.

        {¶3}     Mr. Sturgell was indicted for burglary in an unrelated case and was also charged

with violating the terms of his community control. On November 8, 2011, Mr. Sturgell pleaded

guilty to community control violations in both CR-2011-03-0715 and CR-2011-04-1035. The

trial court sentenced Mr. Sturgell to one year in prison for breaking and entering and three years

in prison for domestic violence and ordered the terms to be served consecutively for an aggregate
                                                 2


term of four years.1 On November 10, 2011, the trial court held a hearing to correct the

imposition of post-release control.

       {¶4}    The trial court’s journal entry did not include a calculation of jail-time credit.

However, the trial court issued an entry on December 14, 2011, that determined that Mr. Sturgell

was entitled to 155 days of jail-time credit. Mr. Sturgell filed a motion for jail-time credit on

December 22, 2011, requesting credit for an additional 32 days, which would bring his total

credit to 187. The trial court never ruled on that motion.

       {¶5}    On August 13, 2011, Mr. Sturgell moved for the trial court to correct his sentence.

He argued that the trial court had failed to make “the requisite findings to impose over the

minimum sentence pursuant to the Ohio Revised Code 2929.11 and 2929.12.” The trial court

determined that Mr. Sturgell’s motion was essentially a motion for reconsideration and denied it

on August 20, 2011. Mr. Sturgell filed a notice of appeal from the August 20, 2011 entry on

September 7, 2011.      Counsel was appointed on September 21, 2011, and Mr. Sturgell’s

appointed counsel filed a second notice of appeal on October 3, 2011. Mr. Sturgell’s counsel

moved to file a delayed appeal for the May 23, 2011 sentencing entry, and this Court granted his

request.

       {¶6}    Mr. Sturgell raises four assignments of error for our review.

                                               II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY
       SENTENCING STURGELL TO CONSECUTIVE SENTENCES IN
       VIOLATION OF R.C. 2929.14(C).



       1
         Mr. Sturgell also pleaded guilty to burglary, and the trial court ordered all of his
sentences be served consecutively.
                                                 3


                                 ASSIGNMENT OF ERROR II

       STURGELL 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
       CONSECUTIVE SENTENCES WAS CONTRARY TO LAW.

       {¶7}    Mr. Sturgell argues that the trial court failed to make the required findings prior to

imposing consecutive sentences.      Mr. Sturgell was sentenced to consecutive sentences in

November 2011; however, the November 13 and November 15, 2011 sentencing entries are not

part of this appeal. Mr. Sturgell appealed the trial court’s August 20, 2012 denial of his motion

to correct his sentence, and this Court allowed Mr. Sturgell to file a delayed appeal from the May

23, 2011 sentencing entry as well. At no point has Mr. Sturgell appealed the November 2011

sentencing entries, which is when he was sentenced to consecutive terms. Thus, Mr. Sturgell’s

sentence is not properly part of this appeal. Compare with State v. Painter, 12th Dist. Clermont

No. CA2012-04-031, 2013-Ohio-529, ¶ 14-19 (concluding that appellant could not raise issues

pertaining to sentencing entry imposing community control in an appeal from the sentencing

entry revoking community control and imposing a prison term when appeal time for the original

entry had run and appellant had not requested leave to file a delayed appeal). Similarly, whether

Mr. Sturgell’s trial counsel was ineffective for not objecting to the imposition of consecutive

sentences is not properly before us on appeal either.

       {¶8}    Accordingly, Mr. Sturgell’s first and second assignments of error are overruled.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY
       SENTENCING STURGELL WITHOUT CREDITING THE NUMBER OF
       DAYS THAT HE WAS HELD IN DETENTION OR INCARCERATION
       PRIOR TO HIS SENTENCE.
                                                 4


       {¶9}    In Mr. Sturgell’s third assignment of error, he argues that the trial court failed to

include calculations of jail-time credit in its November 13 and November 15, 2011 sentencing

entries. However, as we explained above, the November 2011 sentencing entries are not part of

this appeal, and, therefore, this Court is without jurisdiction to address any alleged errors

contained in them.

       {¶10} Mr. Sturgell also argues that the trial court committed reversible error by not

including a calculation of jail-time credit in its May 23, 2011 sentencing entry. However,

assuming that the trial court committed an error in Mr. Sturgell’s May 23, 2011 sentencing entry,

such an error did not affect his substantial rights because the trial court calculated and awarded

him jail-time credit on December 14, 2011.2 See State v. Boone, 9th Dist. Summit No. 26104,

2013-Ohio-2664, ¶ 26 (declining to reverse a trial court’s failure to calculate jail-time credit in a

sentencing entry when the trial court calculated the credit at a later date because the defendant

had not suffered any prejudice). Thus, we conclude that, assuming error occurred, that error was

harmless. See Crim.R. 52(A) (“Any error, defect, irregularity, or variance which does not affect

substantial rights shall be disregarded.”) Accordingly, Mr. Sturgell’s third assignment of error is

overruled.

                                 ASSIGNMENT OF ERROR IV

       STURGELL 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 STURGELL’S NUMBER OF
       DAYS OF CONFINEMENT BEFORE SENTENCE WAS IMPOSED.


       2
          We note that eight days after the trial court calculated Mr. Sturgell’s jail-time credit,
Mr. Sturgell filed a motion for jail-time credit arguing that he was entitled to an additional 32
days of credit; however, the trial court has not ruled on this motion. See State ex rel. Williams v.
McGinty, 129 Ohio St.3d 275, 2011-Ohio-2641, ¶ 2 (A trial court’s failure to calculate jail-time
credit “[i]s remediable in the ordinary course of law by appeal or motion for jail-time credit.”).
                                                  5


          {¶11} In Mr. Sturgell’s fourth assignment of error, he argues that his trial counsel was

ineffective for failing to object when the trial court did not calculate his jail-time credit prior to

sentencing him. In order to prevail on an ineffective assistance of counsel claim, a defendant

“must show (1) deficient performance by counsel, i.e., performance falling below an objective

standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for

counsel’s errors, the proceeding’s result would have been different.” State v. Mundt, 115 Ohio

St.3d 22, 2007–Ohio–4836, ¶ 62, citing Strickland v. Washington, 466 U.S. 668, 687–688, 694

(1984).

          {¶12} To the extent Mr. Sturgell is arguing that he received ineffective assistance of

counsel at the hearings that occurred on November 8 and November 10, 2011, those hearings are

outside the scope of the appeal for the reasons articulated above. To the extent Mr. Sturgell is

arguing that he received ineffective assistance of counsel at his sentencing hearing on May 17,

2011, we disagree that reversible error has occurred. Even assuming that Mr. Sturgell’s counsel

was deficient and that Mr. Sturgell was prejudiced by counsel’s actions at the time, we cannot

conclude that Mr. Sturgell’s substantive rights were affected for the same reasons we stated in

our analysis of his third assignment of error. See Crim.R. 52(A). The trial court has calculated

Mr. Sturgell’s jail-time credit. Accordingly, his fourth assignment of error is overruled.

                                               III.

          {¶13} In light of the foregoing, the August 20, 2012 and May 23, 2011 judgments of the

Summit County Court of Common Pleas are affirmed.

                                                                                Judgments affirmed.
                                                 6


       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.

       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 to Appellant.




                                                     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 RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
