Date: 10-06-2020

Case Style:

Case Number: 2019 AP 12 0047

Judge: William B. Hoffman

Court: COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

Plaintiff's Attorney: LACEE K. FELIX

Defendant's Attorney:

Description: New Philadelphia, Ohio - Criminal Defense Attorney, criminal trespass


{¶2} On May 31, 2019, Appellant entered the premises of First Federal Bank in
Dover, Ohio, where he had previously been issued an order not to trespass. Although
Appellant was no longer on the premises when police officers arrived, a photograph from
video surveillance showed Appellant present on the bank’s property.
{¶3} Appellant was charged on June 11, 2019, by complaint filed in the New
Philadelphia Municipal Court, with one count of criminal trespass, a misdemeanor of the
fourth degree. He was arrested on July 22, 2019, and released on bond the next day.
{¶4} A bench trial was set for August 14, 2019. Appellant failed to appear for
pretrial services on July 30, 2019, and a warrant was issued for his arrest. Appellant was
arrested on August 13, 2019, and appeared before the court on the same day. The trial
court continued the bench trial set for the next day based on his mental condition,
Appellant was “pink slipped” and held in jail awaiting a bed in a mental health hospital.
{¶5} Based on his plea of not guilty by reason of insanity, on August 27, 2019,
the court ordered Appellant to be examined by the Forensic Diagnostic Center of District
Nine for both his competence to stand trial and his mental condition at the time of the
offense. By letter received on September 9, 2019, the court was informed Appellant
refused to cooperate with his evaluations at the Tuscarawas County Jail. The trial court
Tuscarawas County, Case No. 2019 AP 12 0047 3
ordered Appellant remanded to Heartland Behavioral Healthcare for evaluation as soon
as a bed became available.
{¶6} After evaluation at Heartland, Appellant was found to be competent to stand
trial. At a competency hearing on October 21, 2019, Appellant expressed his desire to
withdraw his plea of not guilty by reason of insanity and enter a plea of no contest. The
trial court did not feel comfortable accepting a change in plea at that time due to her
ongoing concerns about Appellant’s mental condition, and took the matter under
advisement. Counsel for Appellant objected on the basis Appellant had already been in
custody longer than the maximum sentence for a fourth degree misdemeanor of thirty
days.
{¶7} Appellant appeared before the court again on October 25, 2019, for a
change of plea hearing. At the hearing, counsel represented to the court, against the
wishes of his client, he did not wish to withdraw the plea of guilty by reason of insanity.
The trial court ordered Appellant back to Heartland Behavioral Health for a sanity
evaluation.
{¶8} The case proceeded to a change in plea hearing on November 26, 2019.
The results of the sanity evaluation demonstrated Appellant was not experiencing any
debilitating symptoms of mental disease at the time of the incident. He changed his plea
from not guilty by reason of insanity to no contest, and was convicted as charged. The
court sentenced him to thirty days incarceration with all days suspended. He was placed
on community control for 24 months, ordered to complete a mental illness assessment at
Community Mental Health, and ordered to take medications as prescribed.
Tuscarawas County, Case No. 2019 AP 12 0047 4
{¶9} It is from the November 26, 2019 judgment of conviction and sentence
Appellant prosecutes his appeal, assigning as error:
THE TRIAL COURT ERRED IN NOT AWARDING CREDIT FOR
TIME PREVIOUSLY SERVED BY MR. BAIR WHILE AWAITING TRIAL.
{¶10} The parties agree Appellant served 72 days in confinement while awaiting
trial. R.C. 2949.08 provides in pertinent part:
(A) When a person who is convicted of or pleads guilty to a felony is
sentenced to a community residential sanction in a community-based
correctional facility pursuant to section 2929.16 of the Revised Code or
when a person who is convicted of or pleads guilty to a felony or a
misdemeanor is sentenced to a term of imprisonment in a jail, the judge or
magistrate shall order the person into the custody of the sheriff or constable,
and the sheriff or constable shall deliver the person with the record of the
person's conviction to the jailer, administrator, or keeper, in whose custody
the person shall remain until the term of imprisonment expires or the person
is otherwise legally discharged.
(B) The record of the person's conviction shall specify the total
number of days, if any, that the person was confined for any reason arising
out of the offense for which the person was convicted and sentenced prior
to delivery to the jailer, administrator, or keeper under this section. The
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record shall be used to determine any reduction of sentence under division
(C) of this section.
(C)(1) If the person is sentenced to a jail for a felony or a
misdemeanor, the jailer in charge of a jail shall reduce the sentence of a
person delivered into the jailer's custody pursuant to division (A) of this
section by the total number of days the person was confined for any reason
arising out of the offense for which the person was convicted and
sentenced, including confinement in lieu of bail while awaiting trial,
confinement for examination to determine the person's competence to
stand trial or to determine sanity, confinement while awaiting transportation
to the place where the person is to serve the sentence, and confinement in
a juvenile facility.
{¶11} The State concedes the trial court’s judgment of conviction and sentence
failed to give Appellant credit for time served in accordance with this section. The
assignment of error is sustained.

Tuscarawas County, Case No. 2019 AP 12 0047 6

Outcome: The judgment of sentence entered by the New Philadelphia Municipal Court
is reversed, and this case is remanded to that court for further proceedings according tolaw, cons istent with this opinion.

Plaintiff's Experts:

Defendant's Experts:

Comments: