[Cite as State v. Thomas , 2023
- Ohio
- 1668.] COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO , :

Plaintiff

- A ppell ant , : No. 1 1 1 7 03 v. : J EFF ER Y THOMAS , : Defendant

- A

ppell ee . :

JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED IN PART AND REMANDED RELEASED AND JOURNALIZED: May 18, 2023

C riminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. C R

- 21
- 658493

- A
Appearances: Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Gregory J. Ochocki , Assistant Prosecuting Attorney, for a

ppell ant

. Cullen Sweeney, Cuyahoga County Public Defender, and John T. Martin , Assistant Public Defender, for appellee

.

EILEEN A. GALLAGHER , P. J.:

Plaintiff

- appellant the s tate of Ohio appeal s the sentence imposed on defendant

- appellee Jeffery Thomas for attempted felonious assault with a one - yearfirearm specification. The state argues that the trial court improperly appli ed jail

time credit to the mandatory prison term imposed on the firearm specification.

For the reasons that follow, we reverse the trial court’s judgment , in part , and remand the case for a limited resentencing, with instructions that the trial

court vacate the portion of Thomas’ sentence that applies jail

- time credit to the mandatory prison term imposed on the firearm specification and issue a new sentencing journal entry that do es not include a request to apply jail

- time credit to the mandatory prison term imposed on the firearm specification

. Factual Background and Procedural History

On April 15, 2021 , a Cuyahoga County Grand Jury indicted Jeffery Thomas on three counts: one co unt of felonious assault with one

- , three

- and five

year firearm specification s and notice

- of

- prior

- conviction, repeat

- violent

- offender and forfeiture

- of

- weapon specifications (Count 1); one count of having a weapon while under disability with a forfeiture

- of

- weapon specification (Count 2) and one count of improperly handling firearms in a motor vehicle with a forfeiture

- of

weapon specification (Count 3)

.

The parties reached a plea agreement. Thomas pled guilty to an amended count of attempted felonious assault in violation of R.C. 2903.11(A)(2)/2923.02, a third

- degree felony, with a one

- year firearm specification and a forfeiture

- of

- weapon specification (amended Count 1) and one count of having a weapon while under disability in violation of R. C. 2923.13(A)(2), a third

- degreefelony, with a forfeiture

- of

- weapon specification ( Count 2 ) . In exchange for Thomas’ guilty pleas, the remaining count was nolled.

On June 6 , 2022, t he trial court sentenced Thomas to a n aggregate prison term of four yea rs. On Count 1, as amended, the trial court sentenced Thomas to one year on the firearm specification to be served prior to , and consecutive with 36 months on the underlying offense. On Count 2, the trial court sentenced Thomas to 24 months, to be served concurrently with the sentence imposed on Count 1

. 1 The trial court credited Thomas with 430 days of jail

- time credit. 2

At the sentencing hearing, Thomas ’ counsel made the following request:
I ’m going to ask you a couple of things and I know this has been done before because of COVID. He’s got [a] firearm specification in 658493 , and I believe these cases would have been resolved much sooner had we not been in the COVID situation. And I’d ask the Court to consider crediting the time that he served i n the county jail, that year, towards that time. I think that’s fair and proper under the COVID circumstances, Judge. The trial court addressed the request a s follows during the sentencing hearing : Due to the COVID pandemic and its effect on the crimina l justice system, I will put in t he journal entry , and I hope that the O DR C complies with this order, Mr. Thomas will receive credit that he spent in the county jail to be applied towards the mandatory one

- year firearm specification.

1 The sentences were also ordered to be served concurrently with sentences imposed in two other cases , CR

- 20
- 653007

- A and CR

- 21
- 658838

- A

.

2 The parties do not dispute the amount of jail

- time credit credited by the trial court.The state objected to the allocation of jail

- time credit to the firearm

specification. Consistent with its statement at the sentencing hearing, i n its June 7, 2022 sentencing journal entry, the trial court included a request that jail

- time credit be appli ed to the one

- year firearm specification as follows: “ Due to C OVID pandemic, court is requesting jail time credit to be applied to 1 year firearm spec. ”

The state sought leave to appeal pursuant to App.R. 5(C) and R.C. 2945.67 . On August 27, 2022 , this c ourt granted the state’s motion for leave to appeal . The state rais es the following sole assignment of error for review: The trial court erred when it requested that defendant’s jail

- time credit be applied to the portion of the sentence imposed for a fire arm specification.
Law and Analysis

The state argues that , pursuant to R.C. 2929.14(B) and the Ohio Supreme Court’s decision in State v. Moore , 154 Ohio St.3d 94, 2018

- Ohio

- 3227, 111 N.E.3d 1146, jail

- time credit cannot be applied toward the portion of a s entence imposed for a firearm specification. The state asks us to reverse the trial court’s decision and remand the matter “for a limited resentencing hearing to vacate the portion of Thomas’ sentence applying jail

- time credit to the mandatory prison

sent ence imposed for the firearm specification.”

Thomas responds that the state’s appeal should be dismissed because (1) the issue is not ripe for review unless and until the trial court grant s Thomas judicial release before Thomas serves “an actual one year in prison,” i.e., the length of the mandatory term, and (2) we lack jurisdiction to hear th is appeal because thetrial court did not “decide” to apply jail

- time credit to the sentence imposed for the

firearm specification but only “request[ed]” that the O hio Department of Rehabilitation and Correction do so

.

This court recently addressed each of these same issues in full in State v. Mims , 8th Dist. Cuyahoga No. 111780, 2023

- Ohio

- 1044. F or the reasons set forth
in Mims , we find that the issue is ripe for review, that we have jurisdiction to hear this appeal and that the trial court’s sentence is contrary to law to the extent it applies jail

- time credit to the mandatory prison term imposed for the firearm specification. Id. at ¶ 12

- 39.

Because the trial court’s application of jail

- time credit is contrary to law, we sustain the state’s assignment of error.

We reverse the trial court’s judgment, in part, and remand this matter for a limited resentencing. On remand, the t rial court is directed to vacate the portion of Thomas’ sentence that applies jail

- time credit to the mandatory prison term imposed on the firearm specification and issue a new sentencing journal entry that does not include a request to apply jail

- time cre dit to the mandatory prison term imposed on the firearm specification bu t instead applies that credit to the underlying felony sentence. See id. at ¶ 41.

Judgment reversed in part and remanded. It is ordered that appell ant recover from appell ee the cost s 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, PRESIDING JUDGE
M ICHAEL JOHN RYAN , J. , and SEAN C . GALLAGHER , J., CONCUR