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State v. Hodge
Citation: 2022 Ohio 2748Docket: 19CA20 & 19CA21
Court: Ohio Court of Appeals; August 3, 2022; Ohio; State Appellate Court
Original Court Document: View Document
Daniteleen P. Hodge appeals the judgment of the Lawrence County Court of Common Pleas in two criminal cases, where she pleaded guilty to identity fraud, falsification, grand theft of a motor vehicle, and failure to appear. The trial court sentenced her to a total of 11 months for identity fraud, 6 months for falsification, and 17 months for grand theft, along with 17 months for failure to appear, all to be served concurrently. Hodge raises four assignments of error. First, she contends that the trial court erred by not merging the identity fraud and falsification convictions, arguing they are allied offenses. The court disagrees, finding that Hodge's actions constituted separate offenses with distinct purposes, as she provided false information to obstruct an investigation and used another person's social security number to evade identification. Second, Hodge claims the trial court improperly applied jail-time credit to her sentences. The court finds that while the failure to appear charges were unrelated to her other offenses, it remands for accurate calculation of her jail-time credit. Third, Hodge challenges her sentencing for a failure to appear count that was dismissed as part of her plea agreement. The court agrees that including a sentence for the dismissed count was improper and remands for resentencing, noting the trial court failed to specify which count was being sentenced. Overall, the court affirms some aspects of the trial court's decisions but remands the case for recalculating jail-time credit and for resentencing regarding the dismissed failure to appear count. Hodge claims her constitutional right to equal protection was violated because her prison sentence was allegedly based on her financial inability to pay restitution. The court disagreed, noting that Hodge was sentenced for the first time within the appropriate range after considering all relevant statutory provisions. The record indicates that any consideration of community control in relation to restitution was part of a plea offer from the state, not a condition set by the trial court. Initially, the state proposed a community control sentence if Hodge paid restitution at a pre-trial hearing. After Hodge failed to make any payment, the offer was modified to dismiss one of two failure-to-appear charges if she paid restitution. Hodge's failure to comply led to a sentencing discussion, where the trial court imposed an appropriate sentence, unrelated to her financial status. The court affirmed Hodge's sentence in case number 19-CR-31 but ordered a remand for resentencing in case number 19-CR-160. In December 2018, Deputy Tyler McGraw investigated a report of a stolen vehicle, a 1993 Oldsmobile Cutless Supreme, owned by Norman E. Gibson, II. Mr. Gibson stated that John Hodge and 'Krystal' had borrowed the vehicle but failed to return it. Deputy McGraw located a vehicle with the same license plate at the residence of John and 'Krystal,' where they denied knowing Mr. Gibson. 'Krystal' provided a false social security number, which led to the discovery of an arrest warrant for Daniteleen Hodge, who was later confirmed to be the same individual after initially providing false information to the deputy. On January 16, 2019, Hodge was indicted on charges of identity fraud, falsification, and grand theft of a motor vehicle. She pleaded not guilty to all offenses during her arraignment on February 6, 2019, and was warned about potential bond increases for any failures to appear or positive drug tests, with her pre-trial set for March 13, 2019. Hodge was absent from her scheduled pre-trial hearing on March 20, 2019, prompting the trial court to issue a capias for her arrest after she failed to appear. She was subsequently arrested and made her first appearance on March 27, 2019. An indictment was filed against her on May 1, 2019, charging her with two counts of failure to appear, both felonies in the fourth degree. Hodge pleaded not guilty, and the trial court consolidated her cases, scheduling another pre-trial hearing. On June 5, 2019, Hodge confirmed signing plea agreement and jury waiver forms for both criminal cases. The agreement stipulated she would plead guilty to all three charges in case 19-CR-31—identity fraud, falsification, and grand theft of a motor vehicle—along with one count of failure to appear in case 19-CR-160, while the second count would be dismissed. The trial court informed her of the rights she was waiving and the potential penalties, ensuring her understanding that acceptance of her plea would allow sentencing without being bound to the state’s recommendations. Hodge pleaded guilty as agreed, and the court set a date for sentencing. At sentencing, her counsel mentioned she had partial restitution funds but not the full amount. The trial court noted a prior agreement for a community-control sanction contingent on full restitution payment, which Hodge did not meet, allowing both parties to argue for sentencing. The state sought a total prison term of 34 months, while Hodge's counsel requested probation, highlighting her partial restitution payment of $600 and her request for additional time to complete the payment. The trial court detailed Hodge's case history, noting her repeated failures to appear in court and to pay full restitution despite extensions. The court sentenced her to a total of 17 months for identity fraud, falsification, auto theft, and failure to appear, with all sentences running concurrently, and ordered $1,400 restitution to the victim, Mr. Gibson. Although the state acknowledged Hodge's entitlement to jail-time credit, there was uncertainty regarding the days served. Hodge expressed a desire for leniency in her sentencing following a mention of available funds for restitution, but the court denied her request, citing her lack of compliance and previous leniency. Hodge's counsel later contested the accuracy of her jail-time credit, suggesting 30 days as a fair estimate. The court agreed to this stipulation, allowing for a re-evaluation of the jail-time credit if more proof was presented. The document includes several assignments of error regarding alleged violations of Hodge's rights, including claims of double jeopardy, improper credit for jail time, erroneous inclusion of a nolled count in sentencing, and conditional community control tied to restitution payment, which Hodge argues violates her equal protection rights. Hodge argues that the trial court erred by not merging her convictions for identity fraud and falsification, claiming both charges stemmed from the same conduct—providing law enforcement with a false name and social security number to mislead officers. Hodge contends that these actions were motivated by the same intent and caused the same harm of delaying the investigation. The state counters that the offenses are distinct; the falsification charge relates to Hodge's denial of knowledge about a vehicle, while the identity fraud charge pertains to providing a false social security number. The state maintains that these actions were motivated by separate intentions: one to mislead regarding the vehicle and the other to evade arrest. Hodge acknowledges the state’s position but argues that her statements were made in a single conversation with a unified purpose to avoid accountability. The legal framework for assessing whether offenses are allied under the Double Jeopardy Clause includes Ohio Revised Code § 2941.25, which allows for the possibility of merging offenses if they arise from the same conduct. The Ohio Supreme Court established a three-part test to determine if offenses are of similar import: (1) whether the offenses are dissimilar in significance, (2) whether they were committed separately, and (3) whether they were committed with distinct motivations. A positive response to any question allows for separate convictions, necessitating an analysis of conduct, motivation, and import. The defendant must prove entitlement to protection against multiple punishments for a single criminal act under R.C. 2941.25, as established in State v. Mughni. The trial court's merger determination of allied offenses is reviewed de novo, per State v. Williams. Hodge did not object to her sentencing for both identity fraud and falsification, which means she forfeited the right to challenge the issue except for plain error. To demonstrate plain error, an accused must show a reasonable probability that the offenses are allied and committed with the same conduct and animus; otherwise, the failure to merge convictions is not reversible. Hodge was convicted of falsification under R.C. 2921.13(A)(3) for knowingly making a false statement to mislead a public official and identity fraud under R.C. 2913.49(B)(1) for using another person's identifying information without consent. The court concluded that Hodge's offenses were not allied as she committed two distinct acts with separate motives. The animus for the falsification was to impede Deputy McGraw’s investigation into a stolen vehicle, while the animus for identity fraud was to conceal her identity due to an outstanding arrest warrant. Hodge's false statements during the investigation established the elements of both offenses. Hodge's argument that her interactions with Deputy McGraw should be treated as a single statement is rejected, as she fails to provide legal authority supporting this view. Each statement made during the conversation is considered distinct, akin to various forms of sexual activity in a single assault not being classified as allied offenses. The trial court did not err in imposing separate sentences for Hodge's identity fraud and falsification charges, leading to the affirmation of her convictions. In the second assignment of error, Hodge claims the trial court violated the Equal Protection Clause and R.C. 2967.191 by applying a 30-day jail-time credit only to one concurrent sentence instead of all. The state does not oppose this argument. The analysis highlights that the practice of awarding jail-time credits is rooted in constitutional principles. R.C. 2967.191 mandates that jail-time credit must be applied to all concurrent prison terms, as failing to do so would deny an offender credit for time served while awaiting trial. The Ohio Supreme Court has established that a court cannot arbitrarily select one concurrent term for the application of jail-time credit. Hodge claims entitlement to a 30-day jail-time credit for her concurrent sentences, relying on the Fugate decision. However, prior rulings establish that an offender is not entitled to jail-time credit for periods of incarceration related to separate offenses. Specifically, R.C. 2967.191 does not apply when imprisonment results from an unrelated offense, meaning no credit is available for time served on unrelated charges, even if concurrent. While on bail for charges of falsification, identity fraud, and grand theft of a motor vehicle, Hodge failed to appear at court hearings, leading to new charges of failure to appear. These offenses are deemed unrelated, thus the jail time served for the earlier case (19-CR-31) cannot be credited toward the new failure to appear case (19-CR-160). The trial court incorrectly ruled that all credit had been considered for the failure to appear case, overlooking the established principle that jail-time credit pertains only to the current sentence's underlying facts. Calculating jail-time credit can be complex, particularly when multiple charges are involved, but defendants are entitled to credit for all time served. The trial court is responsible for determining the credit amount based on the defendant's confinement days. During the hearing for the failure to appear case, the state indicated that jail records showed Hodge had four days of credit, but both the state and Hodge's counsel believed this was inaccurate. The trial court suggested arbitrarily assigning a number and ultimately settled on 30 days after Hodge's counsel agreed. The court expressed willingness to adjust this number if Hodge could provide proof of additional time served, emphasizing a cautious approach to credit determination. The trial court did not hold a hearing to determine the jail-time credit for Hodge in case number 19-CR-31 (identity fraud, falsification, and theft of a motor vehicle), resulting in no jail-time credit being applied. Consequently, the matter is remanded for the trial court to accurately calculate the jail-time credit due for both of Hodge's criminal cases, sustaining part of Hodge’s second assignment of error. In her third assignment of error, Hodge seeks a remand to issue a nunc pro tunc entry for case number 19-CR-160. The trial court imposed a sentence for only one failure to appear offense, but the judgment entry erroneously included a sentence for both since the second offense was dismissed. Hodge also highlighted a clerical error in her guilty plea entry. The Supreme Court of Ohio mandates that a judgment entry must fully resolve counts with convictions but not reiterate counts that were dismissed. The court erred by sentencing Hodge for the dismissed count, and while typically a nunc pro tunc entry would correct this, remand is necessary here due to the lack of clarity on which count Hodge was sentenced for. Thus, the case is remanded for resentencing, sustaining part of Hodge's third assignment of error. For the fourth assignment of error, Hodge argues that the trial court violated her equal protection rights by conditioning her community-control sentence on the payment of $1,400 in restitution, asserting that her imprisonment was based solely on her inability to pay without considering alternative sentences. Hodge's reliance on Bearden v. Georgia is deemed misplaced by the state, as Bearden pertains specifically to the imprisonment of a probationer for non-payment of required restitution, while Hodge was sentenced for the first time. Hodge was aware of the maximum potential sentence of 48 months she faced for pleading guilty to multiple offenses, and her actual sentence was less than the maximum. Hodge argues for an extension of Bearden's principles, claiming the trial court imposed a prison sentence solely due to her inability to pay full restitution, despite finding community control appropriate. The judicial system mandates due process and equal protection, ensuring that all individuals charged with crimes are treated equally, as established in Griffin v. Illinois. The U.S. Supreme Court has ruled that a state cannot imprison a defendant beyond the statutory maximum solely due to financial inability to pay a fine. This principle was reinforced in Williams v. Illinois, which stated that the statutory limit for imprisonment must be consistent for all defendants, regardless of economic status. Subsequently, in Tate v. Short, the Supreme Court ruled against converting a fine into jail time simply due to a defendant's indigence. Bearden itself addressed whether a state could revoke probation for failure to pay fines, concluding that imprisonment cannot follow solely from an inability to pay unless the defendant willfully refused or failed to make efforts to pay. The court highlights a critical distinction: Bearden involved a probation violation, while Hodge's situation is a first-time sentencing, aligning with the reasoning in State v. West, which supports the state's position that Bearden does not apply in this context. A probationer's failure to make required payments cannot result in imprisonment unless the court finds that the probationer did not make genuine efforts to pay and that alternatives to imprisonment are inadequate, as established in Bearden. In the case of West, he was sentenced for the first time after pleading guilty to two second-degree felonies, and the court had not previously imposed a sentence or ordered restitution. At sentencing on June 5, 2017, the court was bound to impose a prison term under R.C. 2929.13(D)(1) and R.C. 2929.14(A)(2), which presumes a prison sentence and specifies a term between two and eight years for second-degree felonies. The imposition of a six-year term was based on statutory guidelines and not on West's ability to pay restitution. Similarly, Hodge was also facing her first sentencing and was subject to the same statutory sentencing range as any other defendant with similar convictions. Hodge did not contest the trial court's adherence to statutory provisions when an aggregate prison term of 17 months was imposed. Despite Hodge's late appearances and missed hearings, the trial court showed leniency by opting not to follow the state's recommendation of a 34-month sentence. The state had suggested a community-control sanction if Hodge paid full restitution, and during a pre-trial hearing, the state offered a probation sentence of 28 months, which Hodge's counsel indicated she could fulfill with payment in about two months. Hodge's counsel asked the court whether to proceed with a plea and defer sentencing or to place Hodge on house arrest or GPS monitoring to secure restitution. The court set a trial date for June 24 and a pre-trial hearing for May 22. The trial court indicated that Hodge could plead that day under the state's offer, which included a seventeen-month incarceration if she did not pay restitution. Hodge was reminded that new charges for failing to appear would be filed, but these could be dismissed if restitution was made. On May 22, Hodge pleaded not guilty to the new charges. The state presented an amended plea offer: if full restitution was paid, the case would be resolved with community control; otherwise, Hodge faced the seventeen-month sentence for the original charges, with the new charges dismissed. Hodge acknowledged her inability to pay the full restitution immediately but claimed she could provide $400 by June 1 and the rest by July 1. The court expressed skepticism about Hodge's sincerity, questioning why she had not accumulated the restitution amount given her fixed income. The trial court scheduled a future sentencing date to allow Hodge another opportunity to secure the restitution. At the sentencing hearing, Hodge did not meet the restitution requirement, prompting the court to hear arguments on sentencing. The court then applied statutory provisions to Hodge's actions and conduct before announcing the sentence. Hodge's appeal regarding her fourth assignment of error was denied due to lack of legal merit and insufficient support in the case record. Hodge's convictions for identity fraud, falsification, and grand theft of a motor vehicle are affirmed, but the case is remanded to calculate her jail-time credit. Her conviction for failure to appear is also affirmed, with a remand for resentencing. The judgment is partially affirmed and partially reversed, and the case is remanded. Both parties will share the costs equally, and the court finds reasonable grounds for the appeal. A special mandate is issued to the Lawrence County Common Pleas Court to execute this judgment. If a stay of execution has been granted, it is continued for up to 60 days to allow Hodge to file an application for a stay with the Supreme Court of Ohio. This stay will terminate after 60 days or if she fails to file a notice of appeal within 45 days. If the Supreme Court dismisses the appeal before the 60 days expire, the stay will end at that dismissal date. A certified copy of this entry serves as the mandate under the relevant appellate procedure rules. The document is finalized, and the appeal period begins from the filing date with the clerk.