[Cite as State v. Davis, 2018-Ohio-4137.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
          Plaintiff-Appellee                      :   Appellate Case No. 27495
                                                  :
 v.                                               :   Trial Court Case No. 2016-CR-3425
                                                  :
 CONRAD E. DAVIS                                  :   (Criminal Appeal from
                                                  :   Common Pleas Court)
          Defendant-Appellant                     :
                                                  :

                                             ...........

                                            OPINION

                            Rendered on the 12th day of October, 2018.

                                             ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

MICHAEL HALLOCK, JR., Atty. Reg. No. 0084630, P.O. Box 292017, Dayton, Ohio
45429
      Attorney for Defendant-Appellant

                                            .............



WELBAUM, P.J.
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      {¶ 1} Defendant-appellant, Conrad E. Davis, appeals from his conviction in the

Montgomery County Court of Common Pleas after he pled guilty to one count of

involuntary manslaughter and two counts of felonious assault of a peace officer. In

support of his appeal, Davis specifically challenges the trial court’s sentence, which

awarded him 102 days of jail-time credit; Davis claims he should have instead been

awarded 112 days of credit. We agree that the trial court’s jail-time credit calculation

was erroneous, but we find that Davis was only entitled to 109 days of jail-time credit.

Accordingly, the judgment of the trial court will be reversed as to the jail-time credit

calculation, and the matter will be remanded to the trial court for the sole purpose of

issuing a corrected sentencing entry that credits Davis with 109 days of jail time served.



                          Facts and Course of Proceedings

      {¶ 2} On January 6, 2017, Davis was charged by bill of information with one count

of involuntary manslaughter and two counts of felonious assault of a peace officer, all

felonies of the first degree. One of the felonious assault counts included a three-year

firearm specification, a five-year firearm specification, and a seven-year firearm

specification. Davis entered a plea agreement and pled guilty as charged in the bill of

information in exchange for receiving concurrent sentences for the two counts of felonious

assault.   After accepting Davis’s guilty plea, the trial court ordered a presentence

investigation report (“PSI”) and scheduled the matter for a sentencing hearing on

February 17, 2017. At the sentencing hearing, the trial court sentenced Davis to an

aggregate term of 15 years in prison and awarded him 102 days of jail-time credit, as
                                                                                          -3-


calculated in the PSI.

       {¶ 3} On March 10, 2017, Davis filed a timely appeal. Thereafter, on July 21,

2017, Davis’s assigned appellate counsel filed a brief under the authority of Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating there were no

issues with arguable merit for appeal. After reviewing the matter, we issued a decision

and entry on December 28, 2017, finding at least one issue with arguable merit for appeal,

concerning the trial court’s jail-time credit calculation of 102 days. Specifically, we found

that the trial court relied on the jail-time credit calculation in the PSI, which incorrectly

indicated that Davis’s sentencing hearing occurred on February 10, 2017, as opposed to

February 17, 2017. Since the author of the PSI arrived at 102 days by calculating the

days between the date Davis was placed in custody, November 1, 2016, and the incorrect

sentencing hearing date of February 10, 2017, we found that a non-frivolous issue existed

as to whether the jail-time credit calculation was seven days short.

       {¶ 4} In light of this finding, we rejected Davis’s Anders brief and appointed new

counsel to file an appellate brief addressing the jail-time credit issue as well as any other

issues that counsel deemed appropriate. In response, Davis’s newly appointed counsel

has filed an appellate brief raising a single assignment of error for review.



                                  Assignment of Error

       {¶ 5} Davis’s sole assignment of error is as follows:

       THE TRIAL COURT ERRED BY ERRONEOUSLY FAILING TO AWARD

       DEFENDANT-APPELLANT              CONRAD         DAVIS       (“DAVIS”)     HIS

       APPROPRIATE JAIL TIME CREDIT.
                                                                                        -4-


       {¶ 6} Under his single assignment of error, Davis contends the trial court erred in

awarding him only 102 days of jail-time credit. According to Davis, he should have been

credited with an additional 10 days, making his total award of jail-time credit 112 days.

Davis arrives at 112 days by calculating the days between the date he was placed in

custody, November 1, 2016, and the date he was transported to prison, February 21,

2017. Therefore, in addition to the seven-day shortage that arose from the trial court

using the wrong sentencing hearing date, Davis claims he was entitled to an additional

three days of jail-time credit for the time he spent in custody while awaiting his

transportation to prison (February 18, 19, and 20, 2017). Davis notes that February 21,

2017, is not part of his calculation because it is considered the first day of his prison

sentence.

       {¶ 7} The State concedes that the trial court erred in awarding Davis 102 days of

jail-time credit, but contends that Davis was only entitled to an additional seven days,

making the appropriate award of jail-time credit 109 days.       According to the State,

Davis’s jail-time credit should have been calculated from the date Davis was placed into

custody, November 1, 2016, to the date of his February 17, 2017 sentencing hearing.

While the State agrees that Davis was entitled to credit against his sentence for the three

days he was confined while awaiting his transportation to prison, the State maintains that

those days are to be calculated and awarded by the Department of Rehabilitation and

Correction, not the trial court. We agree with the State.

       {¶ 8} R.C. 2949.08 governs the reduction of a sentence for confinement prior to

conviction. Section (A) of the statute provides that a person who is convicted of a felony

or a misdemeanor and sentenced to a term of imprisonment shall, along with his record,
                                                                                         -5-


be delivered by the sheriff to the jailer. R.C. 2949.08(A). Section (B) of the statue

provides that: “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[.]” R.C. 2949.08(B). Section (C)(1) provides that the jailer must reduce the

sentence “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[.]” R.C. 2949.08(C)(1).

       {¶ 9} R.C. 2967.191 likewise provides that the “department of rehabilitation and

correction shall 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 * * * as determined by the sentencing court under

[R.C. 2929.19(B)(2)(g)(i)].”   R.C. 2929.19(B)(2)(g)(i) states that, when a trial court

imposes a prison sentence, it must “[d]etermine, notify the offender of, and include in the

sentencing entry the number of days that the offender has been confined for any reason

arising out of the offense for which the offender is being sentenced and by which the

department of rehabilitation and correction must reduce the stated prison term under

section 2967.191 of the Revised Code.”

       {¶ 10} Ohio Adm.Code 5120-2-04 further details the process for reducing a

sentence for jail-time credit and provides, in relevant part, as follows:

              (B) The sentencing court determines the amount of time the offender

       served before being sentenced.           The court must make a factual

       determination of the number of days credit to which the offender is entitled

       by law and, if the offender is committed to a state correctional institution,
                                                                                         -6-


       forward a statement of the number of days of confinement which he is

       entitled by law to have credited. This information is required to be included

       within the journal entry imposing the sentence or stated prison term.

              (C) When the sheriff delivers the offender to the department of

       rehabilitation and correction’s reception center, he shall present the

       managing officer with a copy of the offender’s sentence, stated prison term

       or combination thereof that specifies the total number of days, if any, the

       offender was confined for any reason prior to conviction and sentence and

       a record of the days he was confined for the offense between the date of

       sentencing and the date committed to the reception center.

              (D) The number of days, if any, specified in the court’s journal entry

       committing the offender to the department is the court’s finding of the

       number of days the offender is entitled to by law, up to and including the

       date of the journal entry. The bureau of sentence computation shall reduce

       the offender’s * * * prison term by the number of days specified in the entry,

       plus the number of days the offender was confined as a result of the offense,

       between the date of the entry and the date committed to the department, as

       reflected in the sheriff’s record.

(Emphasis added.)

       {¶ 11} “Pursuant to Ohio Adm.Code 5120-2-04(B), the sentencing court is to

determine the amount of time the offender served before being sentenced and forward

that information to the Department of Rehabilitation and Correction * * * if the offender is

committed to a state correctional institution.” (Emphasis sic.) State v. Breneman, 2d
                                                                                            -7-


Dist. Champaign No. 2011CA19, 2012-Ohio-2411, ¶ 14. “Although it is the [Department

of Rehabilitation and Correction] who credits the jail time served, it is the sentencing court

that makes the factual determination as to the amount of time served by the prisoner

before being sentenced[.]” (Emphasis added.) State v. Jenkins, 10th Dist. Franklin No.

09AP-1029, 2010-Ohio-2853, ¶ 13, citing State ex rel. Corder v. Wilson, 68 Ohio App.3d

567, 589 N.E.2d 113 (10th Dist.1991).

       {¶ 12} It is clear from the language in Ohio Adm.Code 5120-2-04 that the trial

court’s obligation in calculating jail-time credit is limited to calculating the number of days

the defendant was confined prior to sentencing. From there, it is the obligation of the

Department of Rehabilitation and Correction to credit the defendant with the number of

days the defendant was confined between the date of his sentencing and the date of the

defendant’s transportation to prison, as is reflected in the sheriff’s record.

       {¶ 13} In State v. Wade, 2d Dist. Clark No. 2015-CA-45, 2015-Ohio-5171, we held

that the trial court erred in awarding jail-time credit “from November 30, 2014 until

conveyance to the penitentiary system.” Id. at ¶ 14-15. Specifically, we found that

awarding jail-time credit in such a manner was erroneous because R.C. 2949.08(B)

specifies that the record of the person’s conviction “ ‘shall specify the total number of

days, if any, that the person was confined’ for the offense prior to his conviction and ‘prior

to delivery to the jailer, administrator, or keeper.’ ” (Emphasis sic.) Id. at ¶ 14, quoting

R.C. 2949.08(B). Therefore, we held that “the trial court’s failure to reduce the amount

of jail-time credit to a number of days, as required by R.C. 2949.08(B), coupled with the

absence of any opportunity for Wade to be heard on the issue of jail-time credit,

warrant[ed] remanding [the] matter for the [trial] court to properly address the [jail-time
                                                                                            -8-

credit] issue.” Id. at ¶ 15.

       {¶ 14} Because the trial court must specify a defendant’s total number of days of

jail-time credit, the trial court’s factual determination as to jail-time credit is necessarily

limited to the amount of time that the defendant was in confinement prior to sentencing.

At the time of sentencing, the trial court has no way of knowing how long it will take a

defendant to be transported to prison after the defendant has been sentenced; therefore,

any days the defendant spends in confinement while awaiting transportation to prison

cannot properly be included in the trial court’s jail-time credit calculation. Accordingly,

we agree with the State that the trial court’s duty was limited to calculating the number of

days that Davis was confined as of the date of his sentencing hearing.

       {¶ 15} In this case, Davis was sentenced on February 17, 2017, not February 10,

2017. Since Davis was placed in custody on November 1, 2016, we find that the trial

court should have awarded Davis 109 days of jail-time credit as opposed to 102 days of

credit. Any failure on the part of the Department of Rehabilitation and Correction to credit

Davis with the three days he was confined between his sentencing and his transportation

to prison is a matter that Davis must raise with the Department of Rehabilitation and

Correction.

       {¶ 16} That said, we note that an inaccurate determination of jail-time credit at

sentencing is not grounds for setting aside the conviction or sentence and does not

otherwise render the sentence void or voidable.         R.C. 2929.19(B)(2)(g)(iv); State v.

Norris, 7th Dist. Monroe No. 14 MO 7, 2014-Ohio-5833, ¶ 21; State v. Thompson, 8th

Dist. Cuyahoga No. 102326, 2015-Ohio-3882, ¶ 21; Thompson v. Saffold, 8th Dist.

Cuyahoga No. 100774, 2014-Ohio-838, ¶ 4 (“a trial court’s failure to properly calculate
                                                                                          -9-


jail-time credit as required by law does not affect the finality of a sentencing order in a

criminal case”).

       {¶ 17} Crim.R. 36 authorizes a trial court to correct at any time “[c]lerical mistakes

in judgment, orders, or other parts of the record * * *.” See also State v. Gonzalez, 1st

Dist. Hamilton No. C-150582, 2017-Ohio-7301, ¶ 9 (holding that Crim.R. 36 authorizes a

trial court to, at any time, “enter judgment nunc pro tunc to the date of the original

conviction, correcting a mistake of fact, but not an error of law, in the jail-time credit

specified in a judgment of conviction.”) The trial court may therefore remedy the error in

this case by issuing a corrected sentencing entry nunc pro tunc that reflects the correct

number of days of jail-time credit. See State v. Fields, 10th Dist. Franklin No. 16AP-417,

2017-Ohio-661, ¶ 29, citing Crim.R. 36; State v. Weaver, 1st Dist. Hamilton No. C-

050923, 2006-Ohio-5072, ¶ 15; State v. Wolfe, 2d Dist. Montgomery Nos. 26681, 26729,

and 26983, 2016-Ohio-4897, ¶ 11, 16.

       {¶ 18} Davis’s sole assignment of error is sustained.



                                       Conclusion

       {¶ 19} Having sustained Davis’s sole assignment of error, the judgment of the trial

court is reversed only as to its calculation of jail-time credit, and the matter is remanded

for the trial court to issue a corrected sentencing entry nunc pro tunc that credits Davis

with 109 days of jail time served.

                                      .............



DONOVAN, J. and HALL, J., concur.
                        -10-




Copies sent to:

Mathias H. Heck, Jr.
Andrew T. French
Michael Hallock, Jr.
Hon. Dennis J. Langer
