[Cite as State v. Guiser , 2019-Ohio-5421.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO Appellee

v. KRISTIE M. GUISER Appellant C.A. No. 29456

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR-2014-07-2178(B)

DECISION AND JOURNAL ENTRY Dated: December 31, 2019

HENSAL, Judge. {¶1} Kristie Guiser appeals a judgme nt of the Summit County Court of Common Pleas that denied her motion for jail- time credit. For the following reasons, this Court reverses.

I. {¶2} In 2014, Ms. Guiser pleaded guilty to one count of aggravated p ossession of drugs. The trial court found her guilty of the offense and sen tenced her to 30 months of community control, advising her that, if she violated the condi tions of her community control, it would sentence her to one year in prison and order it to run co nsecutive to a sentence she had

received in a different case. {¶3} Three weeks after sentencing, Ms. Guiser violated the condition s of her community control . The trial cour t found her guilty of the vio lation and ordered her to serve one year in prison consecutive to the two-year sentence she had rec eived in a different case. The2

court credited her 145 days for time she had already served in jail and a community-based correctional facility (CBCF). {¶4} After Ms. Guiser served more th an 500 days in prison, the trial court granted her judicial release and placed her on two years of community contr ol. Ms. Guiser violated the conditions of her community control three times. The first two times, the court continued her on community control. The third time the trial court sentenced he r to one year in prison to be served consecutively to a two-year sentence it had imposed for her community control violation in a different case, for a total of three years imprisonment. It credited her “an aggregate total of 67 days of jail credit * * * since the time she was released fr om prison on judicial release.” The court also wrote in its entry that “Defendant’s previously calc ulated jail time credit prior to the original imposition of sentence, along with the time served in the Ohio State Reformatory for Women, is not included in this calculation.” {¶5} Ms. Guiser did not appeal her sentence. Instead, she filed a m otion for jail-time credit, arguing that she had only received 67 days of credit an d that the trial court should have included the time she spent in jail and a CBCF before her first prison stay. The trial court denied her motion. Ms. Guiser subsequently filed a request for a nunc pro tunc entry and a motion to calculate and amend her jail time and prison credit, arguing th at the court’s jail time credit

should have included all of the time she spent in jail, a CBCF, or prison before her judicial

release. The trial court denied her motion. Ms. Guiser has ap pealed, assigning as error that the trial court failed to properly cal culate and credit her prior j ail and prison time.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT DENIED THE DEFENDANT-APPELLANT DUE PROCESS AND EQUAL PROTECTION UNDER THE LAW WHERE IT3

FAILED TO CALCULATE AND CREDIT THE DEFENDANT’S CONFINEMENT (JAIL-TIME) CREDIT AND PRIOR INCARCERATION IN ITS SENTENCING ENTRY. {¶6} Ms. Guiser argues that the trial court incorrectly concluded th at she was not entitled to any additional jail-time credit. Revised Code Sect ion 2929.19(B)(2)(g) 1 provides that, at sentencing, if a court dete rmines that a prison term is nece ssary or required, it shall include in the sentencing entry t he total number of days, inclu ding 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 bei ng sentenced and by which the department of rehabilitation and correction must redu ce the definite prison term imposed on the offender as the offender’s stated pr ison term * * *. The court’s calculation shall not include the number of days, i f any, that the offender served in the custody of the department of rehabilitat ion and correction arising out of any prior offense for which the prisoner was con victed and sentenced. R.C. 2929.19(B)(2)(g)(i). The statute also provides that a sen tencing court retains jurisdiction “to correct any error [in the calculation] not previously raise d at sentencing[.]” R.C. 2929.19(B)(2)(g)(iii). “[An] offender may, at any time after s entencing, file a motion in the sentencing court to correct any error made in making a determin ation under division (B)(2)(g)(i) of this section, and the court ma y in its discretion grant or d eny that motion.” Id . We review the denial of a motion to correct jail-time credit for an abuse of discretion. State v. George , 9th Dist. Medina No. 19CA0037-M, 2019-Ohio- 3823, ¶ 8. An abuse of discre tion occurs when the court’s decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219 (1983). {¶7} Ms. Guiser argues that the trial court’s sentencing entry did n ot award her all of the jail-time credit to which she was e ntitled. She contends t hat, in contrast to the 67 days that

1 Since their enactment in 2012, th e location of these jail-time credit provisions has fluctuated between R.C. 2929.19(B) (2)(f), 2929.19(B)(2)(g), and 2929.19(B)(2)(h).4

the court credited her, she has actually been in a jail or a CB CF for a total of 243 days. She also contends that she has been incarcerated in prison a total of 50 4 days, bringing her aggregate time served to 747 days. {¶8} The State notes that the trial court was not responsible for cr editing Ms. Guiser’s prison time. Section 2929.19(B)(2)(g)(i) specifically provides that “[t]he court’s [jail-time credit] calculation shall not include the number of days, if an y, that the offender served in the custody of the department of rehabilitation and correction * * *.” Prior prison time is credited to a defendant by the department of rehabilitation and correction itself under Section 2967.191(A), which provides that the departme nt “shall reduce the stated pri son term * * * by the total number of days, if any, that the prisoner previously served in the cus tody of the department * * * arising out of the offense for which the prisoner was * * * sentenced.” See State v. Fisher , 10th Dist. Franklin No. 16AP-402, 2016-Ohio- 8501, ¶ 16 (explaining that th e department of rehabilitation and corrections’ “obligation to r educe a stated prison term by the number of days an inmate previously served in [its] custody is independent of the senten cing court’s duty to determine jailtime credit.”). {¶9} Although the trial court was not r equired to include Ms. Guiser ’s prior prison time in its calculation, it was require d to determine “the total num ber of days” that Ms. Guiser has been confined “for any reason arising out of the offense” for w hich she was being sentenced. R.C. 2929.19(B)(2)(g)(i). When the trial court sentenced Ms. G uiser after her first community control violation, it determined that she had served 145 days i n jail or a CBCF. According to Ms. Guiser, she spent another 15 days in jail after sentencing until she was actually transported to prison. Under Section 2967.191(A), Ms. Guiser is entitled t o credit for the number of days that she spent in “confinement while awaiting transportation to the place where [she] is to serve5

[her] prison term.” Because a se ntencing court does not know h ow many days that is going to be at the time of sentencing, Ohio Administrative Code 5120-2-04(C ) provides that, when a sheriff delivers an offender to the department of rehabilitation and co rrections’ reception center, the sheriff must present “a record of the days [the offender] was c onfined for the offe nse between the date of sentencing and the date committed to the reception cent er.” See State v. Davis , 2d Dist. Montgomery No. 27495, 2018-Ohio-4137, ¶ 10-14. {¶10} When the trial court sentenced Ms. Guiser for violating the con ditions of her community control after her judi cial release, it did not includ e the 145 days it originally credited her or the time that she spent awaiting transportation to priso n following her first violation in its jail-time credit. Instead, it only credited her the 67 days sh e had spent in custody “since the time she was released from prison on judicial release.” It explicit ly indicated that “Defendant’s previously calculated jail time credit * * * is not included in this calculation.” {¶11} The plain language of Section 2929.19(B)(2)(g)(i) directs a sen tencing court to include in its sentencing “the tot al number of days” that an of fender has been confined “for any reason” arising out of the offense for which she is being sente nced. We note that, although the court sentenced Ms. Guiser after she committed a community cont rol violation, the sentence it imposed was actually for her or iginal conviction of aggravated possession of drugs, just as the sentence it imposed following her first community control viola tion. Upon review of the record,

we conclude that the trial cour t’s jail-time cre dit should have included all of the time that she was confined in jail or a CBCF before and immediately after sen tencing on her first community control violation as well as the time that she has spent in jai l or a CBCF related to that offense following her judicial release.6

{¶12} Upon review of the trial court’s sentencing entry, it appears t hat the court believed it did not have to include the jail-time credit it previously d etermined, but could simply tack on

the additional time that Ms. Guiser was entitled because of her confinement on the latest community control violation. Although that makes some practica l sense, Section 2929.19(B)(2)(g)(i) requires a court to calculate “the total nu mber of days” that an offender was confined related to the underlying offense. It is also importa nt for a court’s la test sentencing entry to include all of the pr ior time because the department o f rehabilitations and correction may only credit jail time that has been “determined by the sentenci ng court under [R.C. 2929.19(B)(2)(g)(i).” R.C. 2967.191(A). Furthermore, in asses sing what time has been “determined by the sentencing court[,]” Section 2929.19(B)(2)(g )(v) provides that “[t]he department of rehab ilitation and correction shall rely upon the latest journal entry of the court in determining the total days of local confinement for purposes of division (B)(2)(g)(i) to (iii) of

this section and section 2967.191 of the Revised Code.” The de partment, therefore, could not

look back to the time the trial c ourt credited in its prior sen tencing entry, but was only authorized to award Ms. Guiser 67 day s of jail time credit. {¶13} Upon review of the record, we conclude that the trial court sho uld have granted Ms. Guiser’s motion and awarded her the additional jail-time cr edit to which she is entitled.

Without a correction of the am ount of jail-time credit, Ms. Gui ser will be required to serve time that she has already served, whic h is both unreasonable and unc onscionable. We, therefore, conclude that the trial court exercised improper discretion whe n it denied Ms. Guiser’s motion under Section 2929.19(B)(2)(g)(iii). The trial court is instru cted to enter a new sentencing order that credits Ms. Guiser for all of the time she has spent in co nfinement in jail or a CBCF related to her aggravated-possession-of-drugs offense. If the trial co urt concludes on remand that the7

correct jail-time credit can be determined from the record, it may correct the error by issuing a corrected sentencing entry nunc pro tunc. Davis , 2018-Ohio-4137, ¶ 17. Ms. Guiser’s assignment of error is sustained.

III. {¶14} Ms. Guiser’s assignment of error is sustained. The judgment of the Summit County Court of Common Pleas is re versed, and this matter is re manded for proceedings

consistent with this decision. Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed to Appellee.

JENNIFER HENSAL FOR THE COURT8

CARR, P. J. SCHAFER, J. CONCUR.

APPEARANCES: KRISTIE M. GUISER, pro se, Appellant. SHERRI BEVAN WALSH, Prosecuti ng Attorney, and JACQUENETTE S. CO RGAN, Assistant Prosecuting Attorney, for Appellee.