[Cite as State v. Baker, 2013-Ohio-3504.]


                                        COURT OF APPEALS
                                      HOLMES COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. 12CA17
JESSE JAMES BAKER

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case Nos 10CR103, 11CR2


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         August 9, 2013



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

STEVE KNOWLING                                 DAVID M. HUNTER
PROSECUTING ATTORNEY                           244 West Main Street
SEAN M. WARNER                                 Loudonville, Ohio 44842
ASSISTANT PROSECUTOR
164 East Jackson Street
Millersburg, Ohio 44654
Holmes County, Case No. 12CA17                                                            2

Wise, J.

          {¶1}   Appellant Jesse James Baker appeals his convictions and sentences on

several drug-related offenses in the Court of Common Pleas, Holmes County, following

a prior remand from this Court. Appellee is the State of Ohio. The relevant facts leading

to this appeal are as follows.

          {¶2}   On October 22, 2010, drug enforcement agents executed a search

warrant for a camper, garage, and house on Township Road 212 in Washington

Township, Holmes County. Based on evidence seized during the search and on the

corresponding investigation, the Holmes County Grand Jury indicted appellant and a co-

defendant in Case No. 10CR103 on November 23, 2010, on the following charges:

          {¶3}   Count I: Illegal Manufacture of Methamphetamine, in violation of R.C.

2925.04, a second degree felony;

          {¶4}   Count II: Illegal Assembly or Possession of Chemicals/Methamphetamine,

in violation of R.C. 2925.041, a third degree felony;

          {¶5}   Count III: Aggravated Trafficking in Methamphetamine, in violation of R.C.

2925.03, a third degree felony;

          {¶6}   Count IV: Possession of Methamphetamine, in violation of R.C. 2925.11, a

third degree felony;

          {¶7}   Count V: Possession of Heroin, in violation of R.C. 2925.11, a fifth degree

felony;

          {¶8}   Count VI: Possession of Drug Paraphernalia, in violation of R.C. 2925.14,

a fourth degree misdemeanor;
Holmes County, Case No. 12CA17                                                           3


       {¶9}      Count VII: Weapons Under Disability, in violation of R.C. 2923.13, a third

degree felony.

       {¶10} The indictment also contained a forfeiture specification and a firearm

specification.

       {¶11} On January 11, 2011, appellant was also indicted in Case No. 11CR002.

This indictment contained one count of Illegal Manufacture of Methamphetamine, F-2, in

violation of R.C. 2925.04, one count of Illegal Assembly, F-3, in violation of R.C.

2925.041, and one firearm specification assigned to both counts. The only difference

between these counts and the first two counts in Case No. 10CR103 was concerning

the dates of offense.

       {¶12} On January 6, 2011, a pre-trial hearing was held. At this time the two

cases were ordered joined for trial via a judgment entry dated January 14, 2011.

       {¶13} On January 21, 2011, the trial court issued a judgment entry indicating the

case had been scheduled for trial on January 6, 2011, but that two previous judges had

abandoned the case due to conflicts of interest and/or scheduling, and the present

judge on assignment was not able to conduct the expected 3–day trial due to its own

docket conflicts in Wayne County, and was unable to do so until February 22, 2011. The

trial court therefore ordered a continuance, citing R.C. 2945.72(H) as its basis.

       {¶14} On January 26, 2011, upon motion by the State, the trial court amended

Counts III and IV in Case No. 10CR103 from Felony-3 to Felony-4 offenses.

       {¶15} On February 3, 2011, appellant filed a pro se Motion to Dismiss, based on

a claim of violation of speedy trial rights.
Holmes County, Case No. 12CA17                                                             4


       {¶16} On February 17, 2011, appellant entered guilty pleas to Counts II, V, and

VII of the original indictment described above. In addition, appellant pled guilty to the

firearm specification, which carried a one-year mandatory prison sentence. Appellant

further consented and stipulated to the property forfeiture specification contained in the

indictment. The remaining counts in Case No. 10–CR–103, as well as the indictment in

Case No. 11–CR–002, were dismissed.

       {¶17} After his plea, the trial judge granted appellant an “O.R.” bond with certain

reporting conditions. Subsequently, a bench warrant was issued due to appellant's

failure to comply with the reporting requirements of this bond.

       {¶18} Appellant failed to appear at his March sentencing date. Appellant was

eventually located in the State of Illinois and arrested. He appeared for sentencing in

Holmes County on August 2, 2011.

       {¶19} Prior to sentence being imposed, appellant moved to withdraw his guilty

plea. The trial court, after conducting a hearing, denied the motion. The trial court then

proceeded to sentence appellant. The original sentencing judgment entry was filed on

August 3, 2011, followed by a nunc pro tunc sentencing entry on August 30, 2011, to

correct the numbering of the counts to which appellant pled guilty.

       {¶20} Appellant thereupon filed a notice of appeal to this Court. He challenged,

inter alia, the trial court’s denial of his motion to withdraw his guilty pleas. We concluded

the trial court had abused its discretion in denying appellant's motion to withdraw his

guilty pleas, and we vacated his convictions and sentences, finding his remaining

assigned errors moot. The case was then remanded for further proceedings. See State

v. Baker, Holmes App.No. 11 CA 16, 2012-Ohio-853.
Holmes County, Case No. 12CA17                                                              5


       {¶21} Upon remand, appellant filed a number of pro se motions, as further

discussed infra. After obtaining new counsel, who obtained leave to consolidate the pro

se motions, the trial court conducted a pre-trial hearing on September 6, 2012, following

which the consolidated motions, including all motions to suppress, were overruled.

       {¶22} On September 10, 2012, prior to the commencement of a jury trial,

appellant and the State reached a plea deal. Pursuant to the plea agreement, appellant

was to plead guilty to five counts: Illegal manufacture of methamphetamine in violation

of R.C. 2925.04; illegal assembly or possession of chemicals for methamphetamine,

with   a   firearm   specification,   in   violation   of   R.C.   2925.041;   possession   of

methamphetamine in violation of R.C. 2925.11; possession of heroin in violation of R.C.

2925.11; and, having a weapon under a disability in violation of R.C. 2923.13. See Tr.,

September 10, 2012, at 2-3. In exchange, the balance of the charges would be

dismissed. The State further agreed to a "recommendation of five years, of which:

counts eight and count two have a total mandatory of three and one years, four year

mandatory." Tr. at 3. The State further agreed to "waive any fine and costs, on either of

these two cases." Tr. at 3.

       {¶23} The trial court issued a sentencing entry on October 18, 2012.

       {¶24} On November 13, 2012, appellant filed a notice of appeal. He herein

raises the following three Assignments of Error:

       {¶25} “I.     THE TRIAL COURT ERRED IN HOLDING THAT DEFENDANT'S

MOTION TO SUPPRESS EVIDENCE THAT WAS FILED ALLEGING A VIOLATION OF

R.C. §2935.12, WAS NOT TIMELY FILED.
Holmes County, Case No. 12CA17                                                            6


       {¶26} “II. THE TRIAL COURT ERRED BY NOT INCORPORATING THE PLEA

AGREEMENT OF THE PARTIES IN ITS SENTENCING ENTRY.

       {¶27} “III. THE TRIAL COURT ERRED IN COMPUTING DEFENDANT'S JAIL

TIME CREDIT PURSUANT TO R.C. §2949.08 AND R.C. §2967.191 BY ONLY GIVING

DEFENDANT CREDIT FOR 355 DAYS.”

                                                  I.

       {¶28} In his First Assignment of Error, appellant contends the trial court erred in

finding untimely his motion to suppress based on the “knock and announce” rule under

R.C. 2935.12. We disagree.

       {¶29} As an initial matter, we note that a plea of guilty, as occurred in this case,

generally operates as a waiver of any alleged error regarding an appellant's motion to

suppress. See, e.g., State v. Bump, Ashtabula App.No. 2010–A–0028, 2011-Ohio-6687,

¶ 42, citing State v. Elliott (1993), 86 Ohio App.3d 792, 795. However, in the interest of

justice, we will analyze the merits of appellant’s first assigned error.

       {¶30} Crim.R. 12(D) states: “All pretrial motions except as provided in Crim.R.

7(E) and 16(M) shall be made within thirty-five days after arraignment or seven days

before trial, whichever is earlier. The court in the interest of justice may extend the time

for making pretrial motions.”

       {¶31} The decision as to whether to permit leave to file an untimely motion to

suppress is within the sound discretion of the trial court, and we will not reverse a trial

court's decision regarding an untimely filed motion absent an abuse of discretion. State

v. Fornshell, Fairfield App.No. 10 CA 48, 2011-Ohio-3560, ¶ 12, (additional citations

omitted). The term “abuse of discretion” implies the court's attitude is unreasonable,
Holmes County, Case No. 12CA17                                                             7

arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d

144.

       {¶32} In the case sub judice, appellant filed his pro se motion to suppress based

on the knock and announce rule on June 13, 2012, well over a year after the first pre-

trial in this matter. Appellant also filed several additional pro se motions during the

summer of 2012, including a motion in limine, a request for discovery, a motion to

dismiss on speedy trial grounds, and additional motions to suppress. The trial court

scheduled a hearing on August 10, 2012 to consider all of appellant’s pro se motions,

which totaled about thirteen. After deciding to overrule appellant's attorney's motion to

withdraw as counsel, and at the suggestion of the State, the court continued the hearing

to afford appellant's counsel time to consolidate the motions. The trial court declined to

dismiss any of appellant’s pro se motions, telling appellant at the end of the August 10th

hearing that he was “bending over backwards trying to give you every possible

opportunity.” Tr., August 10, 2012, at 14-15.

       {¶33} Appellant’s counsel, on August 31, 2012, re-filed appellant’s pro se

motions as a five-part motion, including issues of suppression. A non-evidentiary

motions hearing was then conducted on September 6, 2012, at the conclusion of which

the court orally held, inter alia: “And based upon my review *** that in consideration of

the law cited [i]n the criminal rules in particular 12(D) and 41(D), the court finds that for

the record all of the five consolidated motions contained in the August 31st filing of the

defendant are overruled.” Tr., September 6, 2012, at 13.

       {¶34} Appellant presently maintains that by affording his counsel time to

consolidate the motions in August 2012, the court essentially granted him leave to file a
Holmes County, Case No. 12CA17                                                          8


renewed suppression motion, and that it was an abuse of discretion for the trial court to

overrule the suppression motion on September 6, 2012, by simply referencing the time

guidelines of Crim.R. 12(D). In support, appellant directs us to State v. Robson, 165

Ohio App.3d 621, 847 N.E.2d 1233. However, as we previously recognized in Fornshell,

supra, while the Fourth District Court of Appeals in Robson reversed a municipal court's

decision to disallow an untimely motion to suppress, “ *** the Fourth District Court's

decision was based on a determination that the trial court had acted unreasonably by

scheduling a suppression hearing, having witnesses appear, and accepting testimony,

but then finding that the motion was untimely filed and declining to address the merits of

the suppression motion.” Fornshell at ¶ 14. Although the prosecutor in the case sub

judice indicated at the September 6, 2012 hearing that he had law enforcement officers

“available” to testify regarding the suppression issues, no such testimony was taken on

that date or thereafter. See Tr., September 6, 2012, at 9.

      {¶35} Accordingly, we find appellant's reliance on Robson is unpersuasive, and

upon review, we hold the trial court's decision to disallow appellant's untimely

suppression motion was not unreasonable, arbitrary or unconscionable under the

circumstances of this case.

      {¶36} Appellant’s First Assignment of Error is overruled.

                                               II.

      {¶37} In his Second Assignment of Error, appellant contends the trial court erred

by not incorporating the parties’ plea agreement as to fines and costs in the court’s

sentencing entry.
Holmes County, Case No. 12CA17                                                           9


      {¶38} Although the law favors settlements and their enforceability, trial courts

are vested with discretion in implementing plea agreements. See State v. Detter,

Morrow App.No. 06 CA 19, 2008-Ohio-102, ¶ 11 (additional citations omitted). In the

case sub judice, the trial court stated on the record that “ *** upon [appellant] being

found guilty of those counts and the firearm spec and the dismissal of the other counts,

withdrawal of the appeal [sic], there will be no fines and costs in this case.” Tr.,

Sentencing Hearing, at 16. However, the trial court’s written sentencing entry plainly

orders appellant to pay fines and costs, as well as fees and expenses of court-

appointed counsel. See Sentencing Entry at 5-6.

      {¶39} Appellant indicates in his brief that he filed a motion in the trial court to

correct the apparent clerical mistake, but the present appeal has now taken

precedence. See Appellant’s Brief at 10.

      {¶40} We note that “*** Crim.R. 36 allows the court to correct clerical errors at

any time, and a trial court's decision overruling a motion to correct a mere clerical error

in calculating jail-time credit may be treated as a final appealable order in certain

cases.” State v. Carter, Mahoning App.No. 09 MA 10, 2009-Ohio-6251, ¶ 9, citing State

v. McLain, Lucas App.No. L-07-1164, 2008-Ohio-481. Because the trial court in this

instance has not yet had the opportunity to address appellant’s request to correct the

sentencing entry, we find appellant’s Second Assignment of Error to be premature.

                                               III.

      {¶41} In his Third Assignment of Error, appellant contends the trial court erred in

computing his jail-time credit pursuant to statute. We disagree.
Holmes County, Case No. 12CA17                                                          10


       {¶42} R.C. 2967.191 allows for a reduction of a prisoner's stated prison term by

the number of days the prisoner was confined for any reason "arising out of the offense

for which the prisoner was convicted and sentenced." Similarly, R.C. 2949.08(B) sets

forth a reduction based upon the total number of days 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 ***."

       {¶43} It is undisputed that in a third case, Holmes County case number 11-CR-

083, appellant was convicted on February 17, 2012 on two counts of failure to appear

and was sentenced on that date to twenty months in prison.

       {¶44} There also appears to be no dispute that appellant was entitled to at least

114 days credit for the time period of October 26, 2010 (date of original arrest) to

February 17, 2011 (date of appellant fleeing while awaiting sentencing). However,

appellant contends that he should also be entitled to another 446 days from June 21,

2011 (date of his arrest in Illinois) to September 10, 2012 (date of his sentencing in the

case sub judice), for a total of 560 days.

       {¶45} The trial court, in its calculation, allowed credit for 241 days beyond the

first 114, representing the period from June 21, 2011 (date of appellant’s arrest in

Illinois) to February 17, 2012 (date of sentencing in case 11CR083), for a total of 355

days of credit.

       {¶46} Because appellant’s confinement after February 17, 2012 was related to

offenses other than those for which he was convicted and sentenced in the present

case (see R.C. 2967.191, supra), we find no error in the calculation of jail-time credit as

urged by appellant.
Holmes County, Case No. 12CA17                                                     11


      {¶47} Appellant’s Third Assignment of Error is overruled.

      {¶48} For the reasons stated in the foregoing opinion, the decision of the Court

of Common Pleas, Holmes County, Ohio, is hereby affirmed.


By: Wise, J.

Gwin, P. J., and

Baldwin, J., concur.



                                           /s/ John W. Wise___________________
                                           HON. JOHN W. WISE


                                           /s/_W. Scott Gwin__________________
                                           HON. W. SCOTT GWIN


                                           /s/ Craig R. Baldwin______________
                                           HON. CRAIG R. BALDWIN

JWW/d 0718
Holmes County, Case No. 12CA17                                                  12


            IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :        JUDGMENT ENTRY
                                          :
JESSE JAMES BAKER                         :
                                          :
       Defendant-Appellant                :        Case No. 12CA17




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Holmes County, Ohio, is affirmed.

       Costs assessed to appellant.




                                          /s/ John W. Wise___________________
                                          HON. JOHN W. WISE

                                          /s/ W. Scott Gwin__________________
                                          HON. W. SCOTT GWIN

                                          /s/ Craig R. Baldwin_______________
                                          HON. CRAIG R. BALDWIN
