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Date: 05-19-2020
Case Style:
STATE OF OHIO vs. DELANIO WRIGHT
Case Number: 19CA14
Judge: Peter B. Abele
Court: IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
Plaintiff's Attorney: Anneka P. Collins, Highland County Prosecuting Attorney, and Adam J. King, Highland County Assistant Prosecuting Attorney
Defendant's Attorney:
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On May 7, 2019, appellant filed a motion to vacate a void sentence. Appellant
asserted that the November 3, 1995 judgment is void because the entry: (1) “has no findings that the
sentence is based on or the statutes of the conviction”; and (2) “fails to state any of the jail time
credit days that the court granted.” The trial court denied appellant’s motion and noted that the
sentence imposed in the July 26, 1994 judgment was not affected by this court’s June 19, 1995
decision, which remanded the matter to the trial court for a hearing on appellant’s motion to
withdraw his guilty plea. Thus, the trial court found that the July 26, 1994 judgment remained in
effect as the sentencing entry and the trial court’s language in the November 3, 1995 entry in regard
to the sentence imposed is superfluous. Thus, the trial court determined that the November 3, 1995
entry is not the sentencing entry and, thus, overruled appellant’s motion. In its June 25, 2019
decision, the trial court also stated that, even if one assumes that the November 3, 1995 entry
controls, the entry conforms to Crim.R. 32(C) and R.C. 2505.02. Additionally, the court indicated
that the November 3, 1995 entry also provides for jail-time credit. This appeal followed.
I.
{¶ 5} In his first assignment of error, appellant asserts that the trial court erred when it
denied his request for counsel and “forced” him to appear at the June 14, 2019 sentencing hearing.
However, as the trial court aptly observed, the June 14, 2019 hearing was not a sentencing hearing,
but rather a hearing on appellant’s pro se motion to vacate his sentence.
HIGHLAND, 19CA14 5
{¶ 6} The Sixth Amendment right to counsel applies to critical stages of criminal
proceedings. United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); see
also Iowa v. Tovar, 541 U.S. 77, 80, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004) (“The Sixth
Amendment safeguards to an accused who faces incarceration the right to counsel at all critical
stages of the criminal process”). In Wade, the court explained that “in addition to counsel's presence
at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the
prosecution, formal or informal, in court or out, where counsel's absence might derogate from the
accused's right to a fair trial.” (Footnotes omitted.) Id. at 226, 87 S.Ct. 1926; see also Rothgery v.
Gillespie Cty., Texas, 554 U.S. 191, 212, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008), fn. 16 (noting that
“critical stages” include proceedings between an individual and agents of the state that amount to
trial-like confrontations at which counsel would help the accused in coping with legal problems or
meeting the adversary). State v. Schleiger, 141 Ohio St.3d 67, 2014-Ohio-3970, 21 N.E.3d 1033,
¶ 13.
{¶ 7} Appellant cites State v. Smith, 4th Dist. Scioto No. 14CA3657, 2015-Ohio-841, to
support his contention that he was entitled to the assistance of counsel at his June 14, 2019 hearing.
However, Smith involved a resentencing hearing, not a hearing on a motion to vacate. Appellant
also cites State v. Wamsley, 2016-Ohio-2885, 64 N.E.3d 489 (5th Dist.), which is also inapplicable as
it relates to trial counsel, not at a hearing on a motion to vacate. Finally, appellant cites State v.
Mootispaw, 4th Dist. Highland No. 09CA33, 2010-Ohio-4772, in which the trial court granted a
petition for judicial release, but several months later the Adult Parole Authority alleged that the
appellant violated the terms of judicial release. After Mootispaw appeared pro se at a hearing on the
supervision violations and admitted to two violations, the court reinstated his prison sentence. Id. at
HIGHLAND, 19CA14 6
¶ 2. Here again, Mootispaw is irrelevant to our analysis because it involved a judicial release
revocation hearing, not a hearing on a motion to vacate. In the case sub judice, because the court
held the June 13, 2019 hearing to consider appellant’s motion to vacate a void sentence, not to
conduct a sentencing hearing or a resentencing hearing, appellant had no right to counsel.
{¶ 8} Therefore, based upon the foregoing reasons, we overrule appellant’s first assignment
of error.
II.
{¶ 9} In his second assignment of error, appellant asserts that the trial court erred “when it
failed to answer the motion for transcripts to the prejudice of Appellant, when it failed to inform the
Clerk to transcribe the oral hearing for Resentencing, the Appellant is without the transcribed facts
from the hearing on June 14, 2019, which is the root of this Appeal and by rule App.R. 10(B) the
record should be complete.”
{¶ 10} Once again, we point out that the June 14, 2019 hearing was not a resentencing
hearing, but rather a hearing on appellant’s motion to vacate a void sentence. Moreover, we observe
that after appellant filed this brief, the June 13, 2019 hearing transcript was filed on October 8, 2019.
Thus, this assignment of error is moot.
III.
{¶ 11} In his third assignment of error, appellant asserts that the trial court “erred to the
prejudice of the Appellant by failing to credit Appellant with all days served incarcerated in the
instant case in Violation of the Fourteenth Amendment Right to Equal Protection of the Law.”
Appellant contends that in the November 3, 1995 entry, “the court states that appellant is awarded
the days from March 5, 1994; which is an ambiguous date, but the DRC has only given 137 days,
HIGHLAND, 19CA14 7
and which the days credited should be 580 plus days.”
{¶ 12} The July 26, 1994 sentencing entry sets forth appellant’s sentences with respect to all
three charges, charged in three separate cases. With respect to jail credit, the entry states: “the
defendant to receive credit of 137 days as of July 20, 1994, for jailtime previously served by him, as
provided by law.” The November 3, 1995 entry states: “This cause came on for further hearing on
November 1, 1995, on the matter of defendant’s motion to withdraw his plea of guilty pursuant to the
Court of Appeals’ decision of June 19, 1995.” The court went on to state that “[t]he Court having
heard and considered the statements of counsel and the evidence adduced as to defendant’s motion to
withdraw his guilty pleas, hereby overrules the same in its entirety.” The court also restated the
original sentence verbatim, with one exception - with respect to jail credit, the court stated, “the
defendant to receive credit for jailtime previously served by him, as provided by law, from March 5,
1994.”
{¶ 13} The gist of appellant’s argument is that the trial court failed to credit him with all days
served. R.C. 2967.191 requires the Ohio Department of Rehabilitation and Correction to:
reduce the prison term of a prisoner * * * 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, including confinement in lieu of bail while awaiting trial,
confinement for examination to determine the prisoner's competence to stand trial or
sanity, and confinement while awaiting transportation to the place where the prisoner
is to serve the prisoner's prison term.
{¶ 14} “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 sentence.” State ex rel. Rankin v. Ohio Adult Parole Auth., 98 Ohio
HIGHLAND, 19CA14 8
St.3d 476, 2003-Ohio-2061, 786 N.E.2d 1286, ¶ 7. R.C. 2949.12 and Ohio Adm.Code
5120-2-04(B) require that this information be included in the sentencing entry.
{¶ 15} Here, the trial court stated in its June 25, 2019 decision that the July 26, 1994
sentencing entry provides the amount of jail-time credit to which appellant is entitled. Further, even
if the November 3, 1995 entry controlled, that entry also specifies jail-time credit.
{¶ 16} Accordingly, based upon the foregoing reasons, we overrule appellant’s third
assignment of error.
IV.
{¶ 17} In his final assignment of error, appellant asserts that the trial court’s decision to deny
his motion is contrary to law because the 1994 and 1995 entries must be read in conjunction to
understand appellant’s sentence in violation of the “one document rule” of State v. Baker, 119 Ohio
St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163.
{¶ 18} In State v. Lester, 130 Ohio St.3d 303, 2011–Ohio–5204, 958 N.E.2d 142, the
Supreme Court of Ohio clarified its holding in State v. Baker, supra, and held that a sentencing entry
must include the following items in order to constitute a final appealable order: (1) the fact of the
conviction, (2) the sentence, (3) the judge's signature, and (4) the time-stamp indicating the entry
upon the journal by the clerk. Lester at paragraph one of the syllabus. In addition, Crim.R. 32(C)
requires that:
A judgment of conviction shall set forth the fact of conviction and the sentence.
Multiple judgments of conviction may be addressed in one judgment entry. If the
defendant is found not guilty or for any other reason is entitled to be discharged, the
court shall render judgment accordingly. The judge shall sign the judgment and the
clerk shall enter it on the journal. A judgment is effective only when entered on the
journal by the clerk.
HIGHLAND, 19CA14 9
{¶ 19} We believe that the July 26, 1994 judgment entry satisfies the Lester requirements, as
well as Crim.R. 32(C). As the appellee points out, that entry sets forth the statutes under which
appellant was convicted, the jail-time credit to which appellant is entitled, is signed by the judge and
has been filed with the clerk. Thus, the July 26, 1994 judgment entry complies with Crim.R. 32(C)
and R.C. 2505.02.
{¶ 20} The July 26, 1994 judgment entry also denied appellant’s oral motion to withdraw his
guilty pleas. This court’s decision in State v. Wright, 4t Dist. Highland No. 95CA891, 1996 WL
557809, reversed that portion of the judgment and remanded the matter with instructions to conduct
a hearing on appellant’s motion to withdraw his pleas. In spite of appellant’s assertions, this court
did not remand the cause for a resentencing. Indeed, the trial court conducted a November 1, 1994
hearing on appellant’s motion to withdraw his guilty pleas. On November 3, 1995, the trial court
overruled appellant’s motion to withdraw his guilty pleas and reimposed the identical sentence.
Even assuming arguendo, that the November 3, 1994 entry controls, that entry also conforms to
Crim.R. 32(C) and R.C. 2505.02 in that it overrule’s appellant’s motion to withdraw his guilty pleas,
sets forth the facts of conviction, sets forth the sentence imposed, contains the judge’s signature and
was journalized by the clerk.
Outcome: Accordingly, based upon the foregoing reasons we overrule appellant’s final
assignment of error and affirm the trial court’s judgment.
Plaintiff's Experts:
Defendant's Experts:
Comments: