[Cite as State v. Caldwell, 2011-Ohio-4385.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellant                       Hon. Sheila G. Farmer, J.
                                                  Hon. Julie A. Edwards, J.
-vs-

MARCUS A. CALDWELL                                Case No. 11CA40

        Defendant-Appellee                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Court of Common Pleas,
                                               Case No. 07CR92H



JUDGMENT:                                      Affirmed




DATE OF JUDGMENT ENTRY:                        August 30, 2011




APPEARANCES:

For Plaintiff-Appellant                        For Defendant-Appellee

DANIEL J. BENOIT                               PATRICIA O'DONNELL KITZLER
38 South Park Street                           3 North Main Street
Mansfield, OH 44902                            Suite 801
                                               Mansfield, OH 44902
Richland County, Case No. 11CA40                                                          2

Farmer, J.

       {¶1}   On April 5, 2007, the Richland County Grand Jury indicted appellee,

Marcus Caldwell, on two counts of trafficking in drugs (cocaine) in violation of R.C.

2925.03, two counts of possession of drugs (crack cocaine and marijuana) in violation

of R.C. 2925.11, one count of possession of drug paraphernalia in violation of R.C.

2925.14, and a forfeiture specification in violation of R.C. 2925.42. On September 13,

2007, appellee pled guilty to two counts of trafficking in drugs (crack cocaine), one

count of possession of drugs, and the forfeiture specification. By judgment entry filed

November 1, 2007, the trial court sentenced appellee to an aggregate term of three

years of community control with sanctions and conditions.

       {¶2}   On December 1, 2008, the trial court revoked appellee's community

control due to a probation violation and ordered him to serve three years in prison.

       {¶3}   On August 26, 2010, appellee was granted judicial release and was

placed on three years of community control which included time in the Volunteers of

America program (hereinafter "VOA").

       {¶4}   On February 23, 2011, the trial court again revoked appellee's community

control due to a probation violation and ordered him to serve three years in prison.

       {¶5}   On March 10, 2011, appellee filed a motion for additional jail time credit for

the time he spent in the VOA program. By judgment entry filed March 23, 2011, the trial

court granted the motion and awarded appellee 139 days of jail time credit.

       {¶6}   Appellant, the state of Ohio, filed an appeal and this matter is now before

this court for consideration. Assignment of error is as follows:
Richland County, Case No. 11CA40                                                              3


                                               I

       {¶7}   "THE TRIAL COURT ERRED WHERE IT FAILED TO PROPERLY

CALCULATE THE TOTAL CREDIT AFFORDED TO THE APPELLEE AND FAILED TO

HOLD A HEARING TO DETERMINE THE NATURE OF THE APPELLEE'S

PARTICIPATION IN THE VOLUNTEERS OF AMERICA AND WHAT ACCOUNTED

TOWARD JAIL TIME CREDIT."

                                               I

       {¶8}   Appellant claims the trial court erred in granting appellee jail time credit for

the time he spent in the VOA program. Appellant also objects to the trial court granting

the motion without holding a hearing.

       {¶9}   Appellee challenges the state's right to appeal a sentence. We disagree

with appellee's argument. The Ohio sentencing scheme permits a state challenge to a

sentence if it is contrary to law:

       {¶10} "(B) In addition to any other right to appeal and except as provided in

division (D) of this section, a prosecuting attorney, a city director of law, village solicitor,

or similar chief legal officer of a municipal corporation, or the attorney general, if one of

those persons prosecuted the case, may appeal as a matter of right a sentence

imposed upon a defendant who is convicted of or pleads guilty to a felony or, in the

circumstances described in division (B)(3) of this section the modification of a sentence

imposed upon such a defendant, on any of the following grounds:

       {¶11} "(2) The sentence is contrary to law." R.C. 2953.08(B)(2).
Richland County, Case No. 11CA40                                                         4


       {¶12} We find appellant's challenge is to the legal issue of whether participation

in the VOA program legally qualifies as confinement for jail time credit and therefore the

issue is proper for appeal.

       {¶13} We must note a procedural problem sub judice. Appellee filed his motion

for jail time credit on March 10, 2011 with notice to appellant. Appellant did not file its

objections with the trial court until March 22, 2011. Pursuant to Loc.R. 1.01(A) of the

Richland County Court of Common Pleas, General Division, a reply or objection should

have been filed within ten days of the filing of the motion. The tenth day would have

been March 20, 2011. However, said date was a Sunday, so the tenth day for timely

filing was March 21, 2011.

       {¶14} We note a request for a hearing was not made, nor was any leave granted

by the trial court for additional time.

       {¶15} Our standard of review is abuse of discretion. State v. Hill, 70 Ohio St.3d

25, 1994-Ohio-12. In order to find an abuse of discretion, we must determine the trial

court's decision was unreasonable, arbitrary or unconscionable and not merely an error

of law or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217.

       {¶16} Our first inquiry is whether the trial court abused its discretion in

disregarding appellant's objection which was untimely filed. We find the trial court did

not abuse its discretion given the requirement of Loc.R. 1.01(A).

       {¶17} Secondly, did the trial court abuse its discretion in considering appellee's

community control participation in the VOA program in calculating jail time credit?

Obviously, the answer is no. The trial court had complete discretion in determining the

scope of the sentence in terminating appellee's community control. The trial court was
Richland County, Case No. 11CA40                                                           5


not fettered by the restrictions of the original sentence (one year on each count to be

served consecutively), and it was within the trial court's discretion to give a lesser

sentence upon terminating the community control (R.C. 2929.15):

       {¶18} "(B)(1) If the conditions of a community control sanction are violated or if

the offender violates a law or leaves the state without the permission of the court or the

offender's probation officer, the sentencing court may impose upon the violator one or

more of the following penalties:

       {¶19} "(a) A longer time under the same sanction if the total time under the

sanctions does not exceed the five-year limit specified in division (A) of this section;

       {¶20} "(b) A more restrictive sanction under section 2929.16, 2929.17, or

2929.18 of the Revised Code;

       {¶21} "(c) A prison term on the offender pursuant to section 2929.14 of the

Revised Code.

       {¶22} "(2) The prison term, if any, imposed upon a violator pursuant to this

division shall be within the range of prison terms available for the offense for which the

sanction that was violated was imposed and shall not exceed the prison term specified

in the notice provided to the offender at the sentencing hearing pursuant to division

(B)(3) of section 2929.19 of the Revised Code.***The court may reduce the longer

period of time that the offender is required to spend under the longer sanction, the more

restrictive sanction, or a prison term imposed pursuant to this division by the time the

offender successfully spent under the sanction that was initially imposed." (Footnote

omitted.)
Richland County, Case No. 11CA40                                                    6


      {¶23} We note the new sentence was identical to the original sentence. See,

Judgment Entries filed November 1, 2007, December 1, 2008, August 26, 2010, and

February 23, 2011.

      {¶24} Upon review, we find the trial court did not abuse its discretion, and the

sentence was not contrary to law.

      {¶25} The sole assignment of error is denied.

      {¶26} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Edwards, J. concur.




                                          _s/ Sheila G. Farmer__________________




                                          _s/ W. Scott Gwin____________________




                                          _s/ Julie A. Edwards__________________

                                                      JUDGES

SGF/sg 803
             IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT



STATE OF OHIO                            :
                                         :
       Plaintiff-Appellant               :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
MARCUS A. CALDWELL                       :
                                         :
       Defendant-Appellee                :         CASE NO. 11CA40




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

judgment of the Court of Common Pleas of Richland County, Ohio is affirmed. Costs to

appellant.




                                         _s/ Sheila G. Farmer__________________




                                         _s/ W. Scott Gwin____________________




                                         _s/ Julie A. Edwards__________________

                                                   JUDGES
