[Cite as State v. Golden, 2016-Ohio-7525.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                     Court of Appeals Nos. L-15-1283
                                                                        L-15-1287
        Appellee
                                                  Trial Court No. CR0201302361
v.

Sherman Golden                                    DECISION AND JUDGMENT

        Appellant                                 Decided: October 28, 2016

                                             *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

        Veronica M. Murphy, for appellant.

                                             *****

        PIETRYKOWSKI, J.

        {¶ 1} Defendant-appellant, Sherman Golden, appeals the January 22, 2015

judgment of the Lucas County Court of Common Pleas which following his admission to

a community control violation, sentenced him to three years in prison for his conviction

for having a weapon while under a disability. Appellant also appeals the trial court’s

denial of his motion for jail-time credit. For the reason set forth herein, we affirm.
       {¶ 2} The history of this case is as follows. Appellant was initially indicted on

May 9, 2013, and charged with having a weapon while under a disability, R.C.

2923.13(A)(2), a third-degree felony. The indictment was dismissed and on August 12,

2013, appellant was recharged in the instant matter.

       {¶ 3} During the course of the dismissed and current proceedings, appellant was

represented by four different attorneys. According to appellate counsel, in the dismissed

matter appellant had retained counsel. Counsel was appointed in this matter and less than

one month later, counsel requested leave to withdraw and the second counsel was

appointed. Subsequent counsel filed a motion to suppress and a motion for transcription

of an earlier hearing. On October 29, 2014, appellant, pro se, filed a motion to dismiss

the indictment or removal of his attorney; he also requested a change of venue.

       {¶ 4} On October 30, 2014, appellant was appointed a third attorney and his

motion to dismiss was denied. Counsel filed a motion to suppress. On December 11,

2014, appellant withdrew the motion and entered a guilty plea to having a weapon while

under a disability, the sole count in the indictment. Appellant was sentenced to

community control which was revoked on January 21, 2015; a three-year imprisonment

term was then imposed. He was given credit for 213 days of incarceration.

       {¶ 5} On September 24, 2015, appellant filed a pro se motion for jail-time credit

requesting he be awarded an additional 118 days. Specifically, appellant claimed that he

was not given credit for the time from April 26, 2013 through August 21, 2013, when he

was held in the Lucas County Jail. On September 30, 2015, the trial court denied the

motion.


2.
       {¶ 6} Two appeals were commenced in this court, a delayed direct appeal of

appellant’s conviction and sentence and an appeal, pro se, of the denial of appellant’s

motion for jail time credit. The appeals were consolidated and appointed counsel filed a

single brief in the matter. In her brief, under procedures announced in Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel indicates that

she has thoroughly examined the record, discussed the case with appellant, and is unable

to find meritorious grounds for appeal. Following Anders procedure, appellate counsel

filed a brief setting forth potential grounds for appeal and also filed a request to withdraw

as counsel.

       {¶ 7} Counsel notified appellant of her inability to find meritorious grounds for

appeal and provided appellant with copies of both the Anders brief and her motion to

withdraw. Counsel advised appellant of his right to file his own appellate brief.

Appellant has not filed an additional brief.

       {¶ 8} In her Anders brief, counsel has asserted two potential assignments of error:

              Potential First Assignment of Error: Ineffective Assistance of

       Counsel

              Potential Second Assignment of Error: Sentencing

       {¶ 9} In appellant’s counsel’s first potential assignment of error she notes that

appellant’s multiple attorneys filed various pretrial motions and his final attorney was

able to effectuate a plea deal with the state which resulted in a community control

sentence for a third-degree felony. Further, counsel aided in arranging treatment for

appellant’s mental health and substance abuse issues.


3.
         {¶ 10} To establish ineffective assistance of counsel, an appellant must

demonstrate “(1) deficient performance of 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. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204,

citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). “A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Id. at 694. When, however, a defendant enters a guilty plea or no contest

plea, he waives the right to claim that he was prejudiced by constitutionally ineffective

counsel, unless the conduct complained of is shown to have prevented the defendant from

making a knowing and voluntary plea. State v. Barnett, 73 Ohio App.3d 244, 248-249,

596 N.E.2d 1101 (2d Dist.1991).

         {¶ 11} Reviewing the record of the proceedings below, we find that appellant’s

counsel represented him vigorously and was able to secure a non-prison sanction with

treatment. At the plea hearing, appellant indicated that he was satisfied with counsel’s

representation. Accordingly, we reject appellant’s counsel’s first potential assignment of

error.

         {¶ 12} In appellant’s counsel’s second potential assignment of error, she

incorporates appellant’s argument that the court miscalculated his jail-time credit. We

first note that appellant’s appeal of the court’s denial of his motion was from a final and

appealable order because the court’s alleged error was clerical in nature. See State v.

McLain, 6th Dist. Lucas No. L-07-1164, 2008-Ohio-481.


4.
       {¶ 13} R.C. 2967.191 provides that the department of rehabilitation and correction

must reduce the stated prison term of a 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 * * *.” A trial court is charged with calculating the number of

days to be credited. See State v. Fair, 136 Ohio App.3d 184, 736 N.E.2d 82 (3d

Dist.2000). However, it is a defendant’s burden to show the error in a trial court’s

calculation of jail-time credit. State v. Smith, 10th Dist. Franklin Nos. 15AP-209, 15AP-

214, 2015-Ohio-4465, ¶ 13, citing State v. Britton, 3d Dist. Defiance No. 4-12-13, 2013-

Ohio-1008, ¶ 16.

       {¶ 14} Appellant filed this motion, pro se, and it was denied in the trial court.

Appellant contends that because he was incarcerated from April 26, 2013 through

August 21, 2013, the total number of days should be 331, not 213. Counsel asserts,

however, that appellant could not have been incarcerated on the days he claims because it

includes the date, April 30, 2013, when he was caught possessing a firearm.

       {¶ 15} Reviewing the record before us, we find no evidence that the trial court

erred in its calculation of appellant’s jail credit. First, as counsel correctly states and

appellant admitted during his plea hearing, the offense at issue took place on April 30,

2013, thus, appellant could not have been incarcerated on that date. Further, the first

indictment was dismissed on June 10, 2013, and appellant was re-indicted on August 12,

2013. Accordingly, appellant’s counsel’s second potential assignment of error is not

well-taken.




5.
       {¶ 16} Upon our own independent review of the record as required by Anders, we

find no other grounds for a meritorious appeal. This appeal is, therefore, found to be

without merit and is wholly frivolous. Appellant’s counsel’s motion to withdraw is found

well-taken and is hereby granted. The judgments of the Lucas County Court of Common

Pleas are affirmed. Further, appellant’s pro se motion for judicial notice is moot and not

well-taken. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.

The clerk is ordered to serve all parties with notice of this decision.


                                                                          Judgments affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                         _______________________________
                                                             JUDGE
Thomas J. Osowik, J.
                                                 _______________________________
James D. Jensen, P.J.                                        JUDGE
CONCUR.
                                                 _______________________________
                                                             JUDGE




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