[Cite as State v. Worley, 2014-Ohio-2465.]
                            STATE OF OHIO, BELMONT COUNTY
                                  IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT

STATE OF OHIO,                                   )
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )               CASE NO. 13 BE 8
V.                                               )
                                                 )                    OPINION
JOHNNY J. WORLEY,                                )
                                                 )
        DEFENDANT-APPELLANT.                     )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from Court of Common
                                                 Pleas of Belmont County, Ohio
                                                 Case No. 08CR037

JUDGMENT:                                        Reversed and Remanded

APPEARANCES:
For Plaintiff-Appellee                           Christopher Berhalter
                                                 Prosecutor
                                                 Helen Yonak
                                                 Assistant Prosecutor
                                                 147-A West Main St.
                                                 St. Clairsville, Ohio 43950

For Defendant-Appellant                          Attorney Peter Galyardt
                                                 Asst. State Public Defender
                                                 250 East Broad Street, Suite 1400
                                                 Columbus, Ohio 43215




JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
                      -2-


Dated: June 2, 2014
[Cite as State v. Worley, 2014-Ohio-2465.]
DONOFRIO, J.

        {¶1}     Defendant-appellant Johnny J. Worley appeals his sentence entered in
the Belmont County Common Pleas Court for sexual battery.
        {¶2}     On March 31, 2008, Worley waived indictment and pleaded guilty to a
bill of information containing one count of sexual battery in violation of R.C.
2907.03(A)(5), a second-degree felony, and was remanded to the county jail awaiting
sentencing. Twenty-eight days later at the April 28, 2008 sentencing hearing, the trial
court sentenced Worley to a seven-year term of imprisonment, noting the
seriousness of the crime and the harm to the two-year-old victim, and designated
Worley as a Tier III sex offender. The court made no mention of court costs or jail-
time credit. In its May 20, 2008 sentencing entry, the court again designated Worley a
Tier III sex offender. The court again failed to mention jail-time credit, but this time did
assess court costs of $331.
        {¶3}     On August 2, 2013, this court granted Worley’s motion for delayed
appeal and later appointed him appellate counsel.
        {¶4}     Worley raises four assignments of error. Worley’s first assignment of
error states:

                 The trial court violated Johnny Worley’s constitutional right to be
        free from retroactive laws. Section 28, Article II, Ohio Constitution.
        Sentencing Tr. 5-7; May 20, 2008 Nunc Pro Tunc Journal Entry.

        {¶5}     As indicated, the trial court designated Worley as a Tier III sex offender.
This would have been done pursuant to the current version of R.C. Chapter 2950,
2007 Am.Sub.S.B. No. 10 (S.B. 10), Ohio’s version of the federal Adam Walsh Act.
        {¶6}     Worley cites to the Ohio Supreme Court’s decision in State v. Williams,
129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, syllabus, where it held that
“2007 Am.Sub.S.B. No. 10, as applied to defendants who committed sex offenses
prior to its enactment, violates Section 28, 109 Article II of the Ohio Constitution,
which prohibits the General Assembly from passing retroactive laws.” Here, Worley’s
offense occurred prior to the January 1, 2008 enactment of S.B. 10. Therefore,
                                                                                 -2-


Worley contends the trial court’s classification of him as a Tier III sex offender should
be vacated and the case remanded to the trial court for classification under the law at
the time he committed the offense. In response, the state agrees.
       {¶7}   The Ohio Supreme Court was asked to decide whether S.B. 10 was
unconstitutionally retroactive when it was applied to an offender who committed a sex
crime about one month prior to the enactment date of S.B. 10. Williams, 129 Ohio
St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108. In response to that question, the Ohio
Supreme Court held that S.B. 10 is punitive in nature. Id. at ¶ 15, 952 N.E.2d 1108.
“The statutory scheme has changed dramatically since this court described the
registration process imposed on sex offenders as an inconvenience ‘comparable to
renewing a driver’s license.’ [State v. Cook (1998), 83 Ohio St.3d 404, 409, 418, 700
N.E.2d 570]. And it has changed markedly since this court concluded in [State v.
Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110] that R.C. Chapter
2950 was remedial.” Id. Senate Bill 10 has imposed new or additional burdens,
duties, obligations, or liabilities as to a past transaction. Id. at ¶ 21. Thus, the Court
held that applying S.B. 10 to any sex offender who committed an offense prior to its
enactment violates Section 28, Article II of the Ohio Constitution, the prohibition
against the enactment of retroactive laws. Id.
       {¶8}   Here, Worley committed the sexual assault in 2007, prior to the January
1, 2008 enactment date of Senate Bill 10. Accordingly, Senate Bill 10 cannot
retroactively be applied to him. At the time of the commission of the sex crime Senate
Bill 5, Megan’s Law, was applicable. Accordingly, Worley must be classified under
Senate Bill 5, not Senate Bill 10.
       {¶9}   Accordingly, Worley’s first assignment of error has merit.
       {¶10} Worley’s second assignment of error states:

              The trial court violated Johnny Worley’s constitutional right to
       equal protection when it did not grant him 28 days of jail-time credit.
       Fourteenth Amendment, United States Constitution; Section 16, Article
                                                                                -3-


       I, Ohio Constitution. Plea Hearing Tr. 9; Sentencing Tr. 1-9; May 20,
       2008 Nunc Pro Tunc Journal Entry.

       {¶11} Worley argues that the trial court did not give him jail-time credit for the
28 days he served in jail between the time he pleaded guilty and the time he was
sentenced. In response, the state agrees, characterizing it as an oversight on the
part of the sentencing court.
       {¶12} A defendant is entitled by law to have credited to his sentence of
incarceration the number of days that he was confined prior to conviction and
sentence. R.C. 2949.08(C)(1). The Ohio Supreme Court has also held that “it is the
trial court that makes the factual determination as to the number of days of
confinement that a defendant is entitled to have credited toward his sentence.” State
ex rel. Rankin v. Ohio Adult Parole Auth., 98 Ohio St.3d 476, 2003-Ohio-2061, 786
N.E.2d 1286, ¶ 7.
       {¶13} Here, it is clear from the record that the trial court did not give Worley
credit for the 28 days he served in jail between his conviction and sentence.
       {¶14} Accordingly, Worley’s second assignment of error has merit.
       {¶15} Worley’s third assignment of error states:

              The trial court committed plain error by imposing court costs in
       the sentencing entry but not at the sentencing hearing. R.C. 2947.23;
       State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶
       1; Crim.R. 52(B). Sentencing Tr. 1-9; May 20, 2008 Nunc Pro Tunc
       Journal Entry.

       {¶16} Worley argues that the trial court violated his statutory right that court
costs be imposed at the sentencing hearing when it did not impose such costs at his
sentencing hearing but did in its sentencing entry. Worley asks this court to remand
for a hearing concerning costs to afford him the opportunity to seek waiver of them. In
response, the state agrees.
                                                                                  -4-


       {¶17} In State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278,
the Ohio Supreme Court held that it is reversible error under Crim.R. 43(A) for the
trial court to impose court costs in its sentencing entry when it did not impose those
costs in open court at the sentencing hearing. Id. at ¶ 22. The court reasoned that the
defendant was denied the opportunity to claim indigency and to seek a waiver of the
payment of court costs before the trial court because the trial court did not mention
costs at the sentencing hearing. Id. The remedy in such a situation is a limited
remand to the trial court for the defendant to seek a waiver of court costs. Id. at ¶ 23.
       {¶18} In this case, it is clear that the trial court did not address court costs at
Worley’s sentencing hearing, but did assess them in its judgment entry of sentence.
       {¶19} Accordingly, Worley’s third assignment of error has merit.
       {¶20} Worley’s fourth and final assignment of error states:

              Johnny Worley was deprived of his constitutional right to the
       effective   assistance    of   counsel.    Fifth,   Sixth,   and   Fourteenth
       Amendments, United State Constitution; Sections 10 and 16, Article I,
       Ohio Constitution. Sentencing Tr. 1-9.

       {¶21} Under this assignment of error, Worley argues that he received
ineffective assistance of trial counsel by his trial counsel’s failure to inform the trial
court of its failure to give him jail-time credit for the 28 days he served between his
conviction and sentence. In response, the state contends that Worley was not
deprived effective assistance of trial counsel by that counsel’s failure to request jail-
time credit. The state contends that jail-time credit is an “automatic computation”
usually handled by the sentencing court and entered by the court in its sentencing
entry, but that in this instance the omission was simply an oversight. The state
argues that if Worley would have brought it to the attention of his trial counsel, his
trial counsel would have notified the sentencing court and it would have corrected the
entry to properly reflect Worley’s jail-time credit.
                                                                                  -5-


       {¶22} This court has found merit to Worley’s first three assignments of error,
including Worley’s second assignment of error concerning jail-time credit. Because
this court’s resolution of that error necessitates remand to the trial court to correct the
error, Worley will not have suffered any resulting prejudice.
       {¶23} Accordingly, Worley’s fourth assignment of error has been rendered
moot. App.R. 12(A)(1)(c).
       {¶24} The judgment of the trial court is reversed and remanded in three
respects: (1) the trial court’s classification of Worley as a Tier III sex offender is
reversed and the case remanded to the trial court to classify Worley pursuant to the
law that existed at the time he committed his offenses which was Senate Bill 5,
Megan’s Law, R.C. Chapter 2950; (2) the matter is remanded to the trial court for it to
give Worley 28-days credit for the time Worley served in jail between his conviction
and sentence; and (3) that portion of the trial court’s judgment imposing court costs is
reversed and the matter remanded to allow Worley the opportunity to move the court
for a waiver of payment of court costs.

Waite, J., concurs.

DeGenaro, P.J., concurs.
