[Cite as State v. Philpot,
2020-Ohio-104.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
Nos. 108271, 108272, and 108373
v. :
TY’JUAN PHILPOT, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART; VACATED IN PART;
REMANDED
RELEASED AND JOURNALIZED: January 16, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-14-590162-M, CR-17-621326-A, and CR-18-632516-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Christopher D. Schroeder, Assistant
Prosecuting Attorney, for appellee.
Paul W. Flowers Co., L.P.A., and Louis E. Grube, for
appellant.
EILEEN A. GALLAGHER, J.:
In this consolidated appeal, defendant-appellant Ty’Juan Philpot
appeals his consecutive sentences after (1) he pled guilty to one count of having
weapons while under disability and one count of attempted carrying concealed
weapons in Cuyahoga C.P. No. CR-18-632516-B (“CR-18-632516”) and (2) was
found to have violated community control in Cuyahoga C.P. Nos. CR-14-590162-M
(“CR-14-590162”) and CR-17-621326-A (“CR-17-621326”). Philpot contends that
(1) the sentencing journal entries in CR-14-590162 and CR-17-621326 are contrary
to law to the extent they impose consecutive sentences because the trial judge did
not make the requisite findings for the imposition of consecutive sentences “in the
manner required by statute” and (2) the record clearly and convincingly does not
support the findings set forth by the trial court for the imposition of consecutive
sentences. Philpot also contends that he is entitled to additional jail-time credit and
that the trial court lacked subject matter jurisdiction in CR-14-590162 due to the
juvenile court’s failure to comply with the juvenile transfer statutes. For the reasons
that follow, we vacate the trial court’s imposition of consecutive sentences in all
three cases and remand for the trial court to consider whether consecutive sentences
are appropriate under R.C. 2929.14(C)(4) and if so, to make all of the required
findings on the record and incorporate those findings in its sentencing journal
entries. We also vacate the trial court’s calculation of jail-time credit and remand
for the trial court to recalculate the amount of jail-time credit to which Philpot is
entitled under R.C. 2967.191. We affirm the trial court in all other respects.
Factual Background and Procedural History
On June 10, 2014, the state filed a delinquency complaint against
Philpot in the Cuyahoga County Court of Common Pleas, Juvenile Division (the
“juvenile court”) in Cuyahoga J.C. No. DL-14-107121, charging him with various
offenses based on allegations that he had engaged in a pattern of criminal gang
activity as a member of the Heartless Felons. At that time, Philpot was 16. The state
filed a motion for discretionary transfer of the case to the Cuyahoga County Court of
Common Pleas, General Division (the “general division”).
After hearings on probable cause and Philpot’s amenability to care
and rehabilitation within the juvenile system, the juvenile court found that (1) there
was probable cause to believe that Philpot had committed acts that would be felonies
if committed by an adult, including participating in a criminal gang, engaging in a
pattern of corrupt activity, conspiracy, robbery, extortion, kidnapping and
attempted felonious assault, (2) there were reasonable grounds to believe that
Philpot was not amenable to care or rehabilitation within the juvenile system and
(3) the safety of the community may require that Philpot be subject to adult
sanctions. The juvenile court transferred the matter to the general division pursuant
to the discretionary transfer provisions, R.C. 2152.10(B) and 2152.12(B).
On November 5, 2014, a Cuyahoga County Grand Jury indicted
Philpot in CR-14-590162 on one count of participating in a criminal gang, one count
of engaging in a pattern of corrupt activity, one count of kidnapping, one count of
attempted felonious assault, one count of assault, two counts of robbery and two
counts of extortion. The kidnapping, attempted felonious assault, robbery and
extortion counts included criminal gang activity specifications. The case was
assigned to Judge John Sutula. In June 2015, Philpot pled guilty to one count of
attempted participating in a criminal gang (a second-degree felony), one count of
assault (a first-degree misdemeanor), one count of attempted robbery (a third-
degree felony) and one count of extortion (a third-degree felony). In exchange for
his guilty pleas, the criminal gang activity specifications were deleted and the
remaining counts were dismissed.
On July 7, 2015, the trial court sentenced Philpot to six months at the
Ohio Department of Youth Services (“ODYS”) on the assault count, to be served
concurrently with a sentence he was then serving in an unrelated juvenile case,
Cuyahoga J.C. No. DL-13-115317, at ODYS. On the remaining counts, the trial court
imposed a 48-month term of community control. After he completed his term at
ODYS, Philpot was ordered to serve a six-month term at a community-based
correctional facility (“CBCF”) on each of the felony counts. The trial court further
ordered that after Philpot completed his term at the CBCF, he be subject to
electronic home monitoring for 100 days, he perform 375 hours of community
service, he submit to random drug testing and complete an anger management
program and he obtain and maintain verifiable employment. Judge Sutula warned
Philpot that if he violated community control, he would sentence him to 36 months
in prison on each of the three felony counts and would run those sentences
consecutively “for a total of 108 months in prison.”
While at the CBCF, Philpot received multiple violations for being in
an unauthorized area and possessing contraband. Due to his behavior, his
placement at the CBCF was terminated. On December 9, 2015, the trial court held
a community control violation hearing. Philpot admitted the community control
violations. The trial court found Philpot to have violated community control and
continued his community control with modified conditions. The trial court ordered
Philpot to serve 120 days in the county jail. After the completion of his jail sentence,
the trial court ordered that Philpot be placed on GPS monitoring for 180 days. Once
again, the trial court warned: “Violation of the terms and conditions [of community
control] may result in more restrictive sanctions as approved by law. 108 months in
prison, 36 months on each of the fel[ony]-3’s consecutive.”
While he was on community control, Philpot allegedly committed
additional criminal offenses. On October 16, 2016, Philpot was arrested after he was
indicted on charges of robbery, kidnapping and having a weapon while under
disability in Cuyahoga C.P. No. CR-16-611522-B. Those charges were dismissed on
March 29, 2017. On March 30, 2017, the trial court held a second community
control violation hearing. Once again, Philpot admitted the violation. The trial court
found Philpot to have violated community control, continued his community control
with modified conditions and ordered that Philpot receive transdermal alcohol
detection monitoring for 120 days and perform an additional 100 hours of
community service. The trial court warned Philpot that the “[n]ext violation” would
be “108 months in prison, 36 months on each count, and those will run consecutive.”
On September 11, 2017, Philpot was arrested on new charges. In CR-
17-621326, Philpot waived indictment and was charged by information with one
count of having weapons while under disability, one count of improperly handling a
firearm in a motor vehicle, one count of carrying a concealed weapon and one count
of obstructing official business. Each of the charges included a forfeiture
specification. The case was assigned to Judge John Sutula. On October 13, 2017,
Philpot pled guilty to the having weapons while under disability and obstructing
official business counts and the remaining counts were dismissed. On November 2,
2017, the trial court conducted a sentencing hearing in CR-17-621326 and a third
violation of community control hearing in CR-14-590162. In CR-17-621326, the trial
court sentenced Philpot to 90 days in jail (suspended) on the obstructing official
business count and three years of community control on the having weapons while
under disability count. Philpot was ordered to serve a six-month term at a CBCF.
The trial court imposed 180 days of GPS monitoring after Philpot completed his
term at the CBCF and also ordered Philpot to perform 200 hours of community
service, submit to random drug testing, complete an inpatient drug treatment
program, obtain and maintain verifiable employment and obtain his GED. The trial
court advised Philpot that if he violated community control he would receive a 36-
month prison sentence.
With respect to Philpot’s alleged community control violations in CR-
14-590162, the trial court found Philpot to have violated community control,
continued his community control with modified conditions and ordered Philpot to
perform an additional 300 hours of community service. Judge Sutula warned
Philpot that this was his “last opportunity” and that if he violated community control
again, he would receive a 36-month prison sentence on each of the felony counts, to
be served consecutively:
THE COURT: … Next violation will be 108 months in prison. That’s
36 months as to each F-2 and F-3, consecutive. That’s 108 months.
You got 36 here. That’s 144. How long is that?
THE DEFENDANT: Twelve years.
THE COURT: Twelve.
THE DEFENDANT: Twelve years, right.
[THE COURT:] This is your last opportunity. Do you understand me?
… Do you understand? Last opportunity. Last-ditch effort here.
THE DEFENDANT: I understand.
Philpot was discharged from the CBCF for physical aggression and,
on December 27, 2017, the trial court held a fourth community control violation
hearing in CR-14-590162 and an initial community control violation hearing in CR-
17-621326. The trial court continued the hearing so it could determine whether
Philpot was eligible for placement in a CBCF outside Cuyahoga County. In January
2018, Philpot was accepted into a Lorain County/Medina County CBCF. Philpot
completed that CBCF program and was released in May 2018.
On October 2, 2018, a Cuyahoga County Grand Jury indicted Philpot
on one count of having weapons while under disability and one count of carrying
concealed weapons in a third criminal case, CR-18-632516. Both counts included
forfeiture specifications. The case was assigned to Judge Pamela Barker.
In December 2018, Philpot pled guilty to the having weapons while
under disability count and an amended count of attempted carrying concealed
weapons. Judge Barker ordered a presentence investigation report and scheduled
the matter for sentencing. On January 16, 2019, Judge Barker conducted the
sentencing hearing in CR-18-632516 and the community control violation hearing
in CR-14-590162 and CR-17-621326.
At the outset of the hearing, Judge Barker observed that CR-14-
590162 and CR-17-621326 “have been presided over by the Honorable John Sutula”
and that Judge Sutula “has asked that this Court handle the hearings associated with
the alleged probation violations in those two cases.” Judge Barker indicated that
Judge Sutula had previously “reserved” a 108-month sentence in CR-14-590162 and
a 36-month sentence in CR-17-621326 and that he had stated he would run those
sentences consecutively if Philpot committed another community control violation.
Judge Barker explained:
I’m basically taking over for Judge Sutula in terms of handling this
matter because of the third case that’s before me, but therefore I
wanted to know what Judge Sutula had to say with regard to this
defendant based upon the numerous violations that the record
indicates have occurred over some years.
After hearing from the state, Philpot, defense counsel and Philpot’s
probation officer and reviewing the presentence investigation report prepared for
CR-18-632516, the status report from Philpot’s probation officer, the “prior
presentence investigation reports and the journal entries that were assigned by
Judge Sutula relative to the other probation violation hearings” and considering the
purposes and principles of sentencing under R.C. 2929.11 and the relevant
sentencing factors under R.C. 2929.12, Judge Barker sentenced Philpot to an
aggregate sentence of 14 years as follows:
● In CR-14-590162, to a sentence of 108 months — 36 months on
the attempted criminal gang activity count, 36 months on the
attempted robbery count, 36 months on the extortion count and
180 days on the assault count, with the sentence on the assault
count to be served concurrently to the sentences on the other
counts and the sentences on the other counts to be served
consecutively to each other and consecutively to the sentences
imposed in CR-17-621326 and CR-18-632516.
● In CR-17-621326, to a sentence of 36 months — 36 months on
the having weapons while under disability count and 90 days on
the obstructing official business count to be served concurrently
to each other and consecutively to the sentences imposed in CR-
14-590162 and CR-18-621326.
● In CR-18-632516, to a sentence of 24 months — 24 months on
the having weapons while under disability count and 12 months
on the attempted carrying of concealed weapons count to be
served concurrently to each other and consecutively to the
sentences imposed in CR-14-590162 and CR-17-621326.
Judge Barker also imposed three years of postrelease control, ordered
Philpot to pay court costs and indicated that Philpot would be given 709 days of jail-
time credit for the time he had already spent in custody.1
With respect to her decision to run the sentences on the attempted
criminal gang activity count, the attempted robbery count and the extortion count
in CR-14-590162 consecutively, Judge Barker stated that this was “based upon
Judge’s Sutula’s representations that that would be what would occur.” With respect
1 The transcript from the sentencing hearing reflects that Judge Barker informed
Philpot that he was entitled to 578 days of jail-time credit in CR-14-590162 and CR-17-
621326 and 131 days of jail-time credit in CR-18-632516 and that “we will add those
together and that means you’ll be given credit for 799 days.” 578 and 131 totals 709, not
799. The sentencing journal entries in all three cases indicate that Philpot was to receive
709 days of jail-time credit.
to her decision to run the aggregate sentences in the three cases consecutively, Judge
Barker stated:
Now, the 24 months in my case and the time I’ve already
indicated imposed in the other two cases that were before Judge Sutula
will be served consecutively. And that is because the Court finds that
consecutive service is necessary to protect the public from future crime
and to punish the offender, and consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the
danger the offender poses to the public. And the Court also finds that
the offender committed one or more of the multiple offenses while the
offender was under a sanction imposed pursuant to Section 2929.16,
2929.17, or 2929.18 of the Ohio Revised Code and the offender’s history
of criminal conduct demonstrates that consecutive sentences are
necessary to protect the public from future crime by the offender.
On January 17, 2019, Judge Barker issued a sentencing journal entry
in CR-18-632516, setting forth the sentences she had imposed at the sentencing
hearing. With respect to the imposition of consecutive sentences, she stated: “The
24 months to run consecutive with the 108 months in Case 590162 and the 36
months in Case 621326 for a total of 14 years in prison.” She set forth her findings
in support of the imposition of consecutive sentences as follows:
The court imposes prison terms consecutively finding that consecutive
service is necessary to protect the public from future crime or to punish
defendant; that the consecutive sentences are not disproportionate to
the seriousness of defendant’s conduct and to the danger defendant
poses to the public; and that, the defendant committed one or more of
the multiple offenses while the defendant was awaiting trial or
sentencing or was under a community control or was under post-release control for a prior offense, or defendant’s history of criminal
conduct demonstrates that consecutive sentences are necessary to
protect the public from future crime by defendant.
On February 4, 2019, Judge Sutula issued sentencing journal entries
in CR-14-590162 and CR-17-621326 setting forth the sentences Judge Barker had
imposed at the January 16, 2019 sentencing hearing. In the sentencing journal entry
in CR-14-590162, Judge Sutula stated: “The 108 months will run consecutive with
the 24 months in Case 632516 and the 36 months in Case 621326 for a total of 14
years in prison.” In the sentencing journal entry in CR-17-621326, he stated: “The
36 months will run consecutive to the 108 months in Case 590162 and the 24
months in Case 632516 for a total of 14 years in prison.” Both of the February 4,
2019 sentencing journal entries included the following findings in support of the
imposition of consecutive sentences:
The court imposes prison terms consecutively finding that consecutive
service is necessary to protect the public from future crime or to punish
defendant; that the consecutive sentences are not disproportionate to
the seriousness of defendant’s conduct and to the danger defendant
poses to the public; and that, the defendant committed one or more of
the multiple offenses while the defendant was awaiting trial or
sentencing or was under a community control or was under post-release control for a prior offense, or defendant’s history of criminal
conduct demonstrates that consecutive sentences are necessary to
protect the public from future crime by defendant.
Philpot appealed, raising four assignments of error for review:
Assignment of Error I
The trial court’s consecutive sentencing orders are contrary to law.
Assignment of Error II
The trial court’s consecutive sentencing orders are not supported by the
record.
Assignment of Error III
The defendant is entitled to additional jail-time credit for time spent in
juvenile and community-based correction facilities.
Assignment of Error IV
The trial court lacked subject matter jurisdiction over Case No. CR-14-
590162-M because the juvenile division failed to follow the statutory
procedures imposed by R.C. 2152.12(B)(3).
Law and Analysis
Imposition of Consecutive Sentences
Philpot’s first and second assignments of error are interrelated.
Accordingly, we address them together.
Philpot’s first and second assignment of errors relate to the trial
court’s imposition of consecutive sentences. R.C. 2929.14(C)(4), which governs the
imposition of consecutive sentences, provides:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the
offender and that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender
poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no
single prison term for any of the offenses committed as part of any
of the courses of conduct adequately reflects the seriousness of the
offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
The trial court must make the required statutory findings at the
sentencing hearing and incorporate those findings into its sentencing journal entry.
State v. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177,
16 N.E.3d 659, syllabus. To
make the requisite “findings” under the statute, ‘“the [trial] court must note that it
engaged in the analysis’ and that it ‘has considered the statutory criteria and
specifie[d] which of the given bases warrants its decision.’” Id. at ¶ 26, quoting State
v. Edmonson,
86 Ohio St.3d 324, 326,
715 N.E.2d 131 (1999).
There are two ways a defendant can challenge consecutive sentences
on appeal. State v. Johnson, 8th Dist. Cuyahoga No. 102449, 2016-Ohio-1536, ¶ 7.
First, the defendant can argue that consecutive sentences are contrary to law
because the trial court failed to make the findings required by R.C. 2929.14(C)(4).
See R.C. 2953.08(G)(2)(b). Second, the defendant can argue that the record clearly
and convincingly does not support the findings made under R.C. 2929.14(C)(4). See
R.C. 2953.08(G)(2)(a). Philpot raises both arguments here.
In his first assignment of error, Philpot argues that the sentencing
journal entries Judge Sutula entered in CR-14-590162 and CR-17-621326 are
contrary to law to the extent they impose consecutive sentences2 because Judge
Sutula did not make any consecutive sentencing findings at the sentencing hearing.
In his second assignment of error, Philpot argues that the record clearly and
2 Philpot does not challenge Judge Barker’s authority to sentence him on the
community control violations in the cases assigned to Judge Sutula or the individual
sentences imposed on any of the counts in the three cases at issue. Accordingly, we do
not address those issues here.
convincingly does not support the findings set forth by the trial court for the
imposition of consecutive sentences. Specifically, he contends that “the shared
record in these appeals” clearly and convincingly does not support the trial court’s
findings that “consecutive service is necessary to protect the public from future
crime or to punish defendant” and that “consecutive sentences are not
disproportionate to the seriousness of defendant’s conduct and to the danger
defendant poses to the public” because (1) Philpot is in his early twenties, (2) his
most significant crimes were committed when he was a juvenile in a juvenile
detention facility, (3) the court’s staff clinical psychologist testified that Philpot
would likely grow out of his delinquent behavior as he aged into adulthood, (4)
during the time Philpot has spent outside of confinement as an adult, he “has
committed only two crimes of possession of a weapon — and no allegations of
violence have been proven against him” and (5) Philpot had left the gang with which
he had previously been involved.
The state, in turn, argues that the record supports the trial court’s
findings in support of the imposition of consecutive sentences, pointing out that
Philpot had six felony convictions by the age of 21 (at least three of which involved
gun crimes), he was “an admitted member of the Heartless Felons,” he had a prior
juvenile adjudication for kidnapping and robbery, he was “kicked out” of the CBCF
for fighting and gang activity and he continued to reoffend despite the numerous
opportunities the trial court gave him to correct his behavior and turn his life
around.
We agree with Philpot that the trial court’s imposition of consecutive
sentences in CR-14-590162 and CR-17-621326 is contrary to law. First, no findings
were made at the December 27, 2018 sentencing hearing (or at any other hearing)
in support of the decision to run the three 36-month sentences imposed on the
attempted criminal gang activity count, the attempted robbery count and the
extortion count in CR-14-590162 consecutively. At the December 27, 2018 hearing,
Judge Barker stated that she was ordering that the three 36-month sentences in CR-
14-590162 be served consecutively “based upon Judge’s Sutula’s representations
that that would be what would occur.” She then proceeded to set forth findings
supporting her decision that “the 24 months in my case and the time I’ve already
indicated imposed in the other two cases that were before Judge Sutula” — i.e., the
108-month sentence in CR-14-590162 and the 36-month sentence in CR-17-621326
— “be served consecutively.” Judge Barker thereafter issued a sentencing journal
entry in CR-18-632516 setting forth all of the requisite findings in support of her
decision to order the 24-month sentence she imposed in CR-18-632516 be served
consecutively to the sentences imposed in CR-14-590162 and CR-17-621326, and
Judge Sutula thereafter issued sentencing journal entries in CR-14-590162 and CR-
17-621326 setting forth findings in support of the imposition of consecutive
sentences as to those cases — even though he did not preside at the December 27,
2018 sentencing hearing and did not make any of the requisite findings at the
sentencing hearing.3
It is well-established that where a trial court has imposed consecutive
sentences in a sentencing journal entry, but failed to make all of the requisite
statutory findings in support of the imposition of consecutive sentences at the
sentencing hearing, the imposition of consecutive sentences is contrary to law. See,
e.g., Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177,
16 N.E.3d 659, at ¶ 36-37; State
v. Tidmore, 8th Dist. Cuyahoga No. 107369,
2019-Ohio-1529, ¶ 21; State v. Lariche,
8th Dist. Cuyahoga No. 106106,
2018-Ohio-3581, ¶ 25. In such circumstances, the
proper remedy is to vacate the consecutive sentences and remand for resentencing
on the issue. See, e.g., Tidmore at ¶ 30; State v. Wells, 8th Dist. Cuyahoga No.
105723,
2017-Ohio-8738, ¶ 5-7; State v. Ferrell, 8th Dist. Cuyahoga No. 104047,
2016-Ohio-7715, ¶ 7-9. We do not believe a different result is warranted here where
one trial judge attempts to memorialize certain findings made by another trial judge,
who was not assigned to the case, in a sentencing journal entry.
As such, the imposition of consecutive sentences in CR-14-590162
and CR-17-621326 is contrary to law. We vacate Philpot’s consecutive sentences in
all three cases and remand for the trial court to consider whether consecutive
sentences are appropriate under R.C. 2929.14(C)(4) and, if so, to make all of the
3 Judge Pamela Barker sat on the Cuyahoga County Court of Common Pleas until
June 18, 2019. The journal entries signed by Judge John Sutula were signed and filed
with the clerk of courts on February 4, 2019, so there was no reason that Judge Barker
could not have issued the entries.
required findings on the record and incorporate those findings into its sentencing
journal entries.4
We sustain Philpot’s first assignment of error. Based on our
resolution of Philpot’s first assignment of error, his second assignment of error is
moot.
Jail-Time Credit
In his third assignment of error, Philpot argues that the trial court
failed to give him jail-time credit for all of the time he spent in confinement. Philpot
contends that he spent a total of 1,157 days in confinement, including time spent in
ODYS, jail and at various CBCF facilities, but was only given 709 days of jail-time
credit.
“Criminal defendants have a right to jail-time credit.” State v.
Thompson, 8th Dist. Cuyahoga No. 102326, 2015-Ohio-3882, ¶ 21. R.C. 2967.191
provides that a prison term shall be reduced “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.”
4
Given that Philpot’s consecutive sentences in CR-14-590162 and CR-17-621326
are contrary to law and must be vacated and given that Judge Barker’s decision to run the
24-month sentence in CR-18-632516 “consecutive with” the sentences imposed in CR-14-
590162 and CR-17-621326 involved an expectation — “based upon Judge’s Sutula’s
representations that that would be what would occur” — that Philpot would receive
consecutive prison sentences totaling 108 months in CR-14-590162, we believe that the
appropriate relief in this case is to vacate the imposition of consecutive sentences in all
three cases and to remand all three cases for resentencing on the issue of consecutive
sentences.
“Although the [department of rehabilitation and correction] has a
mandatory duty pursuant to R.C. 2967.191 to credit an inmate with jail time already
served, 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 or her]
sentence.” State ex rel. Rankin v. Ohio Adult Parole Auth., 98 Ohio St.3d 476, 2003-
Ohio-2061,
786 N.E.2d 1286, ¶ 7. Former R.C. 2929.19(B)(2)(f)(i), which was in
effect at the time of Philpot’s sentencing, provides, in relevant part:
[I]f the sentencing court determines at the sentencing hearing that a
prison term is necessary or required, the court shall … [d]etermine,
notify the offender of, and include in the sentencing entry the total
number of days, including the sentencing date but excluding
conveyance time, 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. The
court’s calculation shall not include the number of days, if any, that the
offender served in the custody of the department of rehabilitation and
correction arising out of any prior offense for which the prisoner was
convicted and sentenced.
Philpot did not object to the trial court’s calculation of jail-time credit
and did not file a motion to correct jail-time credit below. Accordingly, we review
the trial court’s calculation of jail-time credit for plain error. See, e.g., State v.
Thomas, 8th Dist. Cuyahoga No. 105824, 2018-Ohio-4106, ¶ 43; State v. Lowe, 8th
Dist. Cuyahoga No. 99176,
2013-Ohio-3913, ¶ 22. “A trial court commits plain error
when it fails to include the appropriate amount of jail-time credit in the sentencing
entry.” Thomas at ¶ 43.
It is unclear from the record how the trial court calculated the 709
days of jail-time credit with which it credited Philpot in this case. The state has
indicated that it “does not dispute any of Philpot’s calculations regarding jail-time
credit and defers to this Court regarding the number of days to which Philpot is
entitled.” Although it appears, based on the record before us, that the trial court did
not properly calculate Philpot’s jail-time credit, there is insufficient information in
the record for us to make a determination as to precise number of days of jail-time
credit to which Philpot is entitled. Accordingly, we sustain Philpot’s third
assignment of error, vacate the trial court’s calculation of jail-time credit and
remand for the trial court to recalculate the amount of jail-time credit to which
Philpot is entitled under R.C. 2967.191.
Discretionary Bindover
In his fourth and final assignment of error, Philpot argues that the
general division never acquired subject matter jurisdiction over CR-14-590162
because the juvenile court did not state on the record which factors weighed for and
against Philpot’s bindover to the general division as required under R.C.
2152.12(B)(3). He contends that, as a result, all of the proceedings in the case were
void ad initio and that we should, therefore, reverse and vacate all orders entered in
CR-14-590162. Philpot’s argument is meritless.
Ohio’s juvenile courts have “exclusive jurisdiction over children
alleged to be delinquent for committing acts that would constitute crimes if
committed by an adult.” In re M.P., 124 Ohio St.3d 445,
2010-Ohio-599,
923 N.E.2d
584, ¶ 11, citing R.C. 2151.23(A); State v. Mays,
2014-Ohio-3815,
18 N.E.3d 850, ¶ 17
(8th Dist.). Under certain circumstances, however, the juvenile court has the
authority to transfer a case, or bind a juvenile over, to the adult criminal system to
face criminal sanctions. R.C. 2152.10; 2152.12; In re M.P. at ¶ 11. There are two
types of transfers under Ohio’s juvenile justice system — mandatory transfers and
discretionary transfer. State v. D.W.,
133 Ohio St.3d 434,
2012-Ohio-4544,
978
N.E.2d 894, ¶ 10. CR-14-590162 involved a discretionary transfer.
A juvenile court may transfer a case to the general division in a
discretionary bindover after a complaint has been filed alleging that a child is a
delinquent child for committing an act that would be a felony if committed by an
adult, if it finds: (1) the child was fourteen years of age or older at the time of the act
charged; (2) there is probable cause to believe that the child committed the act
charged and (3) the child is not amenable to care or rehabilitation within the juvenile
system and the safety of the community may require that the child be subject to adult
sanctions. R.C. 2152.10(B); R.C. 2152.12(B). If the first two elements are met, then
the juvenile court must then “continue the proceeding for a full investigation” into
‘“the child’s social history, education, family situation, and any other factor bearing
on whether the child is amenable to juvenile rehabilitation, including a mental
examination of the child by a public or private agency or a person qualified to make
the examination.’” State v. Crosby, 8th Dist. Cuyahoga Nos. 107392 and 107551,
2019-Ohio-2217, ¶ 26, quoting R.C. 2152.12(C); see also In re M.P. at ¶ 12; Juv.R.
30(C).
In determining whether a child is amenable to care or rehabilitation
within the juvenile system, the juvenile court must consider all relevant factors,
including the specific factors identified in R.C. 2152.12(D) and (E), that weigh in
favor of and against a transfer. R.C. 2152.12(B)(3). R.C. 2152.12(B)(3) provides that
“[t]he record shall indicate the specific factors that were applicable and that the
court weighed.” Further, “[u]pon the transfer of a case under [R.C. 2152.12(B)], the
juvenile court shall state the reasons for the transfer on the record.” R.C. 2152.12(I);
see also Juv.R. 30(G) (“The order of transfer shall state the reasons for transfer.”).
Following a thorough review of the record, we find that the juvenile
court complied with its obligations under R.C. 2152.12(B). There is no dispute that
the juvenile court made all of the findings required under R.C. 2152.12(B)(1)-(3).
The record reflects that the investigation required under R.C. 2152.12(C) was
conducted and that the juvenile court reviewed and considered the results of that
investigation. Although Philpot asserts that “there is no indication in the record
which factors weighed for and against [his] transfer,” the juvenile court, in its
October 28, 2014 journal entry transferring the case to the general division, clearly
identified each of the factors it considered in determining that Philpot was not
amenable to care or rehabilitation, setting forth its findings with respect to each of
those factors as follows:
The court finds after a full investigation, including a mental
examination of said child made by a duly qualified person, and after full
consideration of the child’s prior juvenile record, family environment,
school record, efforts previously made to treat and rehabilitate the
child, including prior commitments to the Department of Youth
Services, the nature and severity of the offense herein, the age, physical,
and mental condition of the victim as effected by the matter herein, and
other matters of evidence, that there are reasonable grounds to believe
that the child herein is NOT amenable to care or rehabilitation within
the juvenile system.
The court further finds that the safety of the community may require
that the child be subject to adult sanctions.
The court considered the relevant factors in favor of transfer pursuant
to O.R.C. § 2152.12(D) and makes the following findings:
The victim suffered physical or psychological harm, or serious
economic harm.
The physical or psychological harm suffered by the victim was
exacerbated because of the physical or psychological vulnerability or
the age of the victim.
The child’s relationship with the victim facilitated the act charged.
The child allegedly committed the act charged for hire or as a part of a
gang or other organized criminal activity.
At the time of the act charged, the child was awaiting a community
control sanction, or was on parole for a prior delinquent child
adjudication or conviction.
The results of any previous juvenile sanctions and programs indicate
that rehabilitation of the child will not occur in the juvenile system.
The child is emotionally, physically, or psychologically mature enough
for the transfer.
There is not sufficient time to rehabilitate the child within the juvenile
system.
The court considered the relevant factors against transfer pursuant to
O.R.C. § 2152.12(E) and finds that no factors are applicable.
We find that the juvenile court complied with R.C. 2152.12(B)(3) by
identifying the specific factors it weighed on the record. Philpot’s fourth assignment
of error is overruled.
Judgment affirmed in part; vacated in part; remanded.
It is ordered that appellant recover from appellee the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
PATRICIA ANN BLACKMON, P.J., and
ANITA LASTER MAYS, J., CONCUR
