[Cite as State v. Rink , 2021-Ohio-1068.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-20-1049 Appellee Trial Court No. CR20021826

v. Stanley Lee Rink DECISION AND JUDGMENT Appellant Decided: March 31, 2021

* * * * * Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appel lee. Autumn D. Adams, for appellant.

* * * * * MAYLE, J. {¶ 1} Appellant, Stanley Rink, appeals the December 18, 2019 judgment of the Lucas County Court of Common Pleas resentencing him following o ur remand in State v.

Rink , 6th Dist. Lucas No. L-19-1130, 2019-Ohio-4379 (“ Rink II ”). For the following reasons, we affirm.2. I. Background and Facts {¶ 2} In 1999, Rink was convicted of one count of rape and sentenced to three years in prison (“1999 case”). He was released in 2001 and pla ced on postrelease

control. {¶ 3} In 2002, shortly after his release from prison, Rink was convic ted of two counts of rape in the case underlying this appeal (“2002 case”) . The trial court sentenced Rink to ten years in prison on each count, as well as five year s in prison for violating postrelease control. The court ordered Rink to serve the priso n terms consecutively, with the five-year postrelease control sanction to be served first. Rink appealed to this court, arguing that the trial court erred by imposing maximum sentence s. We affirmed. State v.

Rink , 6th Dist. Lucas No. L-02-1307, 2003-Ohio-4097. {¶ 4} In 2008, the trial court issued a nunc pro tunc sentencing entr y once again sentencing Rink to ten years on each rape count and five years on the postrelease control violation. The court again ordered Rink to serve the sentences consecutively, with the postrelease control sanction to be served first. Rink did not appeal the nunc pro tunc entry. {¶ 5} Beginning in 2014, Rink filed various motions attempting to vac ate the fiveyear prison sentence for the postrelease control violation on t he basis that postrelease control was not properly imposed in the 1999 case, rendering th at part of his sentence void. The trial court denied all of Rink’s requests, and he ap pealed its final denial. Ultimately, we concluded that “Rink argue[d], the state concede [d], and the trial court3. found that postrelease control was not properly imposed in the 1999 case and that the five-year postrelease control sanction [was] void.” Rink II , 6th Dist. Lucas No. L-19-1130, 2019-Ohio-4379, at ¶ 15. Because Rink had already c ompleted his five-year sentence for the postrelease control violation, we determined t hat the proper remedy was to credit the days he served for the postrelease control violat ion to his 20-year sentence for the rape convictions. Id. {¶ 6} On December 11, 2019, the trial court resentenced Rink in accor dance with

our decision in Rink II , vacating the five-year postrelease control sentence, reaffirm ing the aggregate 20-year sentence for Rink’s rape convictions, and crediting the time Rink served under the postrelease control sentence against the rape sentences. {¶ 7} Rink now appeals, assigning the following error: The Trial Court erred in not granting Appellant credit for the time he Served on post-release control. II. Law and Analysis {¶ 8} In his assignment of error, Rink contends that he should receiv e 243 days of jail-time credit toward his 20-year rape sentence in the 2002 c ase because he spent 243 days under an improperly-imposed term of postrelease control fo llowing his release from prison in the 1999 case. He argues that he is entitled to this additional jail-time credit because “his freedom was restrained and he was subject to the s upervision of the Adult Parole Authority for a voided period [of] post-release [sic] co ntrol * * *.” The state responds that Rink waived this argument by failing to raise it at the resentencing hearing.4. Alternatively, the state argues that Rink is not entitled to cr edit for time when he was not physically confined. {¶ 9} “When reviewing sentencing errors, the Supreme Court of Ohio ha s consistently held that a failure to object waives all but plain error.” State v. Devai , 2013- Ohio-5264, 2 N.E.3d 993, ¶ 16 (11th Dist.). Rink did not ask t he trial court to give him additional credit against his rape sentences for the time that he was under postrelease control supervision, but not incarcerated, so he has waived all but plain error. {¶ 10} Plain error is an error that affects an appellant’s substantial rights. Crim.R. 52(B). An error that affects substantial rights is one that “a ffected the outcome” of the proceedings. State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Plain error should be found “only in exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v. Hill , 92 Ohio St.3d 191, 203, 749 N.E.2d 274 (2001), citing State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of t he syllabus. {¶ 11} Rink’s request for credit toward his prison term for days when he was not confined in jail or prison, or under a similarly restrictive sa nction (such as confinement in a community-based correctional facility), is contrary to statut ory law and governing precedent from the Supreme Court of Ohio. That is, R.C. 2967.1 91(A) provides for a reduction of prison time for related days to confinement . It states, in relevant part, that “[t]he department of rehabilitation and correction shall reduce the prison term of a prisoner * * * by the total number of days that the prisoner was confined for any reason5. arising out of the offense for which the prisoner was convicted and sentenced * * *.” (Emphasis added.) Recently, the Supreme Court of Ohio clarifie d that “R.C. 2967.191(A) is plain and unambiguous and limits a jail-time cre dit to specific types of confinement, those in which the defendant is confined in a public or private facility .” (Emphasis added.) State v. Reed , Slip Opinion No. 2020-Ohio-4255, ¶ 19. {¶ 12} In Reed , the Supreme Court determined that a defendant who was sentenced to prison after the trial court revoked his community control was not entitled to jail-time credit for the days he spent on house arrest and elec tronic monitoring after his conviction because, although “confinement” is not defined by R. C. 2967.191, the statute contemplates confinement in a “public or private facility inten ded for penal confinement,” and does not extend to any type of confinement in a private residence. Id. at ¶ 16. {¶ 13} Applying that logic to Rink’s case, we cannot agree that he is entitled to credit against his rape sentences for time when he was not impr isoned. Although being on postrelease control necessarily meant that Rink was subject to certain restrictions, see Ohio Adm.Code 5120:1-1-12, those restrictions were not the equi valent of Rink being “confined in a public or private facility” that is “intended fo r penal confinement.” Reed at ¶ 16. Moreover, there is no evidence in the record that the time Rink was on postrelease control meets the second requirement in R.C. 2967.1 91(A)—i.e., that it “ar[ose] out of the offense for which the prisoner was convicte d and sentenced * * *.” Rink was on postrelease control before he was charged with and convicted of the rapes in6. the 2002 case. So, logically, the term of postrelease control could not have arisen from

the 2002 convictions. 1 {¶ 14} In support of his argument, Rink cites N. Olmstead v. Cipiti , 114 Ohio App.3d 549, 683 N.E.2d 795 (8th Dist.1996). In that case, the appellant was convicted of a misdemeanor and sentenced to, among other things, the maximum sentence of 30 days in jail, which the court suspended on the condition that the ap pellant complete a term of probation. Id. at 550-551. However, he was held in jail pending trial for 59 days—more than the maximum number of days that he could legally be incarc erated for the offense of

which he was convicted. Id. at 553. The Eighth District vacated the trial court’s imposition of the suspended jail sentence because the appellant had already served more than the statutorily-permissible number of days in jail for his conviction and “any sentence of incarceration imposed due to a violation of the ter ms of probation would be

void.” Id. at 554. {¶ 15} As Rink recognizes in his brief, “[i]n Cipiti , the imposition of a jail sentence was void and [the appellant] received credit for the days he was incarcerated .” (Emphasis added.) Nonetheless, Rink contends that he should re ceive credit for days that

he was not incarcerated because he was improperly subject to state control via the ter ms and conditions of postrelease control. Cipiti does not support his position. Rather, the

1 The five-year prison term for the postrelease control violatio n, on the other hand, did arise from the 2002 rape convictions; the postrelease control s anction was a punishment that Rink received as a direct result of committing new crimes while on postrelease control.7. Cipiti court’s determination that the appellant could not properly be sentenced to any further jail time hinged on the fact that he had already been c onfined in jail beyond the maximum allowable number of days, id. at 553-554, which fits squarely with the Supreme Court of Ohio’s recent pronouncement that an offender i s entitled to jail-time credit for any time that was spent physically “confined in a pu blic or private facility” that is “intended for penal confinement.” Reed , Slip Opinion No. 2020-Ohio-4255, at ¶ 16. {¶ 16} In sum, we previously determined that the trial court erred in imposing postrelease control, which resulted in an invalid prison term. Rink II , 6th Dist. Lucas No. L-19-1130, 2019-Ohio-4379, at ¶ 15. However, that error was re ctified at resentencing when the trial court gave Rink credit for the days that he was actually confined in prison on the void five-year prison sentence and ordered the Ohio Depa rtment of Rehabilitation and Correction to apply that credit to Rink’s 20-year sentence in the 2002 case. Rink is not entitled to any credit beyond that. Accordingly, his assig nment of error is not welltaken.

III. Conclusion {¶ 17} Based on the foregoing, the December 18, 2019 judgment of the L ucas County Court of Common Pleas is affirmed. Rink is ordered to p ay the costs of this appeal pursuant to App.R. 24. Judgment affirmed.8. State v. Rink C .A. No. L-20-1049

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. _______________________

________ JUDGE Christine E. Mayle, J.

_______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.