NO TAXATION WITHOUT REPRESENTATION!! Remember learning that slogan in school when discussing the American Revolutionary War?  Just in case you don’t, this slogan was chanted because the Brits were taxing us Yankees and we had no say in their parliament.  So, that really pissed us off and we went to war (I know there was more to it, but let’s be honest, the founding fathers did not want to pay the Brits).

War ensued; we won, and formed our own government.  And now, said government taxes the hell out us working folk!  Everything these days seems to be taxed.  Don’t get me wrong I enjoy roads, bridges, stadiums, etc.  But as a Red Blooded American I have a right to bitch about taxes.

In State v. Noble, 2015-Ohio-652, Justin Noble had a bit of grip when it came to his trial tax for taking his criminal case to the jury.  Now before diving into this case, let me give you a real quick explanation of what attorneys mean by a trial tax.

Trial tax is essentially a punishment from the court for taking a case to a jury trial (sometimes a bench trial) on a case where the defendant is clearly guilty of the offense and has no legitimate defenses in the eyes of the court.  Said punishment is anything from prison time, jail time, tougher sanctions, etc.  Let me give you a quick scenario I have seen in the courtroom with regards to trial tax.

Waiting for my case to be called one afternoon, I had the pleasure of witnessing a defense attorney and what I would call a difficult client discussing their case.  It was apparent from the reactions of the client, that the client did not want to take any deals and wanted to proceed with a trial.  It was even more apparent from the look on the defense attorney’s face that he wanted to smack his client and explain to his client how not only would he be found guilty, but the judge would fry him during sentencing.  Client was not hearing it.

A few moments later, the judge takes the bench and this guy’s case was called.  Client and defense attorney go to the podium and the judge asked defense counsel how his client wanted to proceed.  Meaning, is he going to take the plea deal or go to trial.  Defense counsel stated that after speaking with his client, the client elected to proceed with trial.

Judge looks at the client and begins to have a little discussion.  The judge tells the client that if he accepts the plea deal, the most he will be facing his community control with basic supervision and sanctions.  However, if he proceeds to trial, the judge explained how he might not like what the witnesses would say about the incident and that could change his mind to lean towards prison time over community control.

Well wouldn’t ya know, that son um’ bitch changed his mind real quick!  Client entered a guilty plea right then and there to secure that plea deal.

Based on the above, you can kind of tell how the judge made it clear that, in his mind, there were no defenses, the witnesses will prove the state’s case, and because of that prison time may be in order.

In Noble, however, Noble went forward on his case and had is day in court.

Noble was indicted on 16 counts of thefts, ranging from fifth and fourth degree felonies.  During the investigation, Noble rode around with a detective from the Warren County Sherriff’s Office to visit the areas of theft.  During his ride along, Noble detailed the numerous thefts and explained his level of involvement with the thefts and his accomplice’s level of involvement.

Believing he still had a fighting chance for a not guilty verdict, even though he told the detective everything needed to lock in a conviction, Noble took his case to the jury.  During the two day trial, thirteen victims testified against Noble along with the detective that conducted the investigation.  During the detective’s testimony, the detective explained how Noble specifically admitted to removing items from vehicles.

At the end of the trial, the jury came back with a guilty verdict on all counts.  Noble’s case then went to sentencing.  The judge stated the following to Noble:

So, the sad but true tail is that you have learned nothing in your young life.  The only positive thing that anybody can say about you is you did cooperate with the police here.  But you wasted this jury’s time with this trial.  There was absolutely nothing your attorney could do for you.  You had no defense whatsoever.  You committed every one of these crimes as clearly as could be.

The jury took every opportunity to look at it and scrutinize the evidence carefully, but this isn’t a case where you had some legitimate defense to the claim, you just simply took a shot and hoped that the jury was dumb enough to busy some these nonsensical arguments.  So, this court will not give you any benefit of leniency.

On the other hand, I don’t accept the argument that maximum consecutive sentences are appropriate either.  You did help the police officer, you do get some credit for that.  You don’t get the same kind of leniency you would have gotten if you had just fessed up, taken responsibility and said, okay, I got caught, I screwed up, now what’s my prison sentence.

You’re going to prison for these crimes and there’s no ifs, ands, or butts about it.  The harm is just extraordinary and the nature of the crime spree is overwhelming.

Thereafter, Noble was sentenced to eight years in prison to be served consecutively to his sentences in two other cases.  On appeal, Noble asserted that he was penalized for exercising his constitutional right to a trial.  Specifically, Noble asserted that the trial court’s statements indicating that the trial was a waste of time and that he would not be granted the same leniency he otherwise would have been afforded if he had pled guilty created an appearance that the trial court punished him for pursuing a jury trial.

The appellate court starts off their analysis by recognizing that “a defendant is guaranteed the right to a trial and should never be punished for exercising that right.”  State v. O’Dell, 45 Ohio St.3d 140 (1989).  The augmentation of sentence based upon a defendant’s decision to stand on his right to put the government to its proof rather than plead guilty is improper.  State v. Scalf, 126 Ohio App.3d 614.

The appellate court goes on to state that it is improper for a trial court to create the mere appearance that it has augmented a defendant’s sentence because he has elected to put the government to its proof. State v. Howard, 2013-Ohio-2884.  Thus, when an appearance of an augmented sentence is created, even when a defendant may not in fact have been punished for electing to go to trial, a defendant’s sentence must be vacated.  State v. Morris, 2005-Ohio-962.  However, if the trial court unequivocally dispels any such inference by clearly stating the defendant’s decision to go to trial was not considered in imposing the sentence, then vacating the defendant’s sentence is not necessary.  Id.

After reviewing the trial court’s sentencing speech to Noble, the appellate court held that the statements made by the trial court created the appearance from which an inference could be made that it may have augmented Noble’s sentence because he exercised his right to a jury trial.  In addition, the appellate court found there to be no evidence in the record that the trial court made an unequivocal statement that Noble’s sentence was not more severe because he exercised his constitutional right.  Based on those findings, the appellate court vacated Noble’s sentence and remanded the case back down to the trial court for resentencing.

To be honest, I get that courts don’t want what seems to be an open and shut criminal case going through their court.  Jury trials take up a significant amount of time, cost tax payers money, and can clog up the court’s docket.  Thus, threating a defendant with a trial tax for asserting their rights might ease this burden.

But that should not matter!  If a defendant wants to take his case to the jury, even though he or she has no defense, they should be able to do so without the fear of judge imposing a harsher sentence.

What seems like eons ago, I was sitting for the Ohio Bar and praying to the law gods to have mercy on me.  And by eons ago, I mean three years ago.  But three years in lawyer years is enough time to get beat up on a daily basis through the court system.  So to my fellow July 2013 Ohio Bar class, congratulations, we have earned some well-deserved war stripes and war stories.  We still don’t know what we are doing, but we are still in the trenches!

Alright I lost my train of thought.  Back to the story at hand, while in Columbus taking the bar, I stayed at the Sheraton Hotel on Capitol Square.  Not going to lie, it was an outstanding hotel that I could not afford.  I was actually booked a cheaper hotel, but a week before I was to take the bar; I received a phone call from said hotel informing that the floor I would be staying on had flooded.  Heart sank and panic set in!  But the kind folks of the Noah’s Ark hotel put me up at the Sheraton Hotel and paid the difference.  Not bad at all.

After completing the bar exam, I was ready to head back to Dayton and enjoy the ever so cold beer this great city has to offer a weary traveler.  During my checkout process, the front desk clerk asked if I wanted to use my reward points to pay for my internet usage in the room.  I knew for a fact that I did not have any reward points, but my father, who I share the same name with, has a shit ton of reward points!  He wouldn’t miss a few points, so I told the nice lady at the front desk to go ahead and transfer some of those reward points to pay for the internet.

About thirty minutes into my car ride back to Dayton, I received a phone call from my father.  He opened up with the general pleasantries and asking about the exam, but I knew what he was really calling about….the reward points.  My father received an email from the Sheraton Hotel extending their thanks for his stay at the hotel and using his reward points.  My father got a chuckle out of that and could truly care less.

In a similar situation, in the sense of wanting some credit for various stays in County Hotels, defendant Jason Caccamo asked the court to consider this credit as jail time credit in State v. Caccamo, 2016-Ohio-3006.

Caccamo’s plight started way back in November 2012.  At that time, Caccamo pled guilty to several counts of identity theft in Lake County Court of Common Pleas.  Part of Caccamo’s sentence was to serve two years on community control.

With just one year into his community control, ole Caccamo was arrested in Cuyahoga County for passing bad checks.  Beginning January 17, 2014, Caccamo was held in Cuyahoga County Jail until March 4, 2014 when he was transferred to Lorain County Correctional Institution to begin his eight month sentence from Cuyahoga Common Pleas Court.

On January 22, 2014, while still in Cuyahoga County Jail, Lake County probations department caused an arrest warrant to be issued against Caccamo.  Said warrant, however, was not executed until April 22, 2014, when Caccamo was in state prison.

The same day the warrant was executed, April 22, Caccamo was conveyed to Lake County where he awaited his hearing on April 24.

On May 12, 2014, Caccamo had a final hearing where his community control was terminated after entering a guilty plea to violating his sanctions.  The court sentenced Caccamo to twenty-six months with his sentence to run concurrent with his eight month sentence out of Cuyahoga County.

With the sentence, the court gave Caccamo thirty-three days of jail time credit.  Twelve of those days were for time Caccamo was held in 2012 and the remaining twenty-one days were for being held in county jail between his conveyance from the state prison and the date of the final hearing in Lake County Common Pleas.  Caccamo did not object to the number of jail time credit.

On appeal, Caccamo made two arguments regarding jail time credit.  The second argument was found to have no merit by the Eight Appellate Court District, so I will only concentrate on the Caccamo’s first argument.

Caccamo claimed that he was entitled to credit for the majority of the period he was held in the Cuyahoga County Jail and the state prison before being transported back to Lake County on April 22, 2014.  Caccamo believed that even if the jail days in question were deducted from his eight month prison term on the Cuyahoga County charge, he was entitled to the same credit on his Lake County sentence because he was subject to a detainer filed by the Lake County probation department, while he was in the Cuyahoga County Jail.  Essentially, Caccamo’s argues that his confinement in the Cuyahoga County Jail was based upon the alleged community control violation in Lake County and because of that, even if the Cuyahoga County charges had been dismissed, he still would have remained incarcerated in light of the detainer.

To support his argument, Caccamo relied on State v. Fugate, 2008-Ohio-856.

In Fugate, Fugate was serving community control sanctions when he was indicted on two new felony offenses.  The trial court heard the probation revocation as part of the sentencing hearing on the new charges.  During sentencing, the trial court ordered incarceration for the two new cases and for the probation revocation.  All cases were to run concurrent to each other.  With regards to jail time credit, the trial court found that Fugate was entitled to 213 days of credit, but only applied said credit to his new felony case and not the revocation case.  Fugate appealed.

Fugate argued that since his two sentences were to run concurrently, he was entitled to have the 213 days of jail time credit deducted from each sentence.  Fugate’s argument eventually made its way up to the Ohio Supreme Court, where the Supreme’s agreed.

The Supreme’s found that a criminal defendant is unable to make bail and is held in jail prior to his trial, he would be denied his constitutional right to equal protection if he was not granted credit for the time already served.  Upon applying said principle to Fugate’s case, the court concluded that the principle would be violated if the credit was not deducted from each concurrent sentence.

The Supreme’s went on to say that “when concurrent prison terms are imposed, courts do not have the discretion to select only one term from those that are run concurrently against which to apply jail-time credit.”  “If courts were permitted to apply jail-time credit to only one of the concurrent terms, the practical result would be to deny credit for that an offender was confined while being held on pending charges.  So long as an offender is held on a charge while awaiting trial or sentencing, the offender is entitled to jail-time credit for that sentence; a court cannot choose one of several concurrent terms against which to apply the credit.”

With that reasoning, the appellate court found that since Caccamo’s confinement in the Cuyahoga County Jail was predicated in part upon the seven identity theft charges in Lake County, he was entitled to jail-time credit for the days from January 22, 2014 until April 21, 2014.

It is important to note that the Eighth District’s holding is the minority view on how to apply Fugate for charges pending in two separate counties.

In State v. Marini, 2009-Ohio-4633, the Fifth District held “it is one thing to hold, such as the Supreme Court did in Fugate, that jail time credit earned in two cases must be applied to both cases when the sentences are imposed concurrently by the same court.  It would be quite another to hold in the present case that confinement while serving non-concurrent jail time must be awarded as jail time to reduce a later imposed felony sentence.

Judge Rice, in her dissenting opinion in Caccamo, stated that Ohio courts have repeatedly recognized that where a defendant was incarcerated on a prior unrelated conviction during the pendency of the present case, he is not entitled to jail-time credit.  Making Marini, arguably, the majority view of how to apply Fugate.

The majority opinion in Cuaccamo distinguished this view by stating “given that the existence of the holder justifies appellant’s continuing incarceration had the Cuyahoga County charge been dismissed, the foregoing distinction in Marini is unpersuasive because it would defeat the underlying principle that a defendant is entitled to credit for all presentencing incarceration based upon the pending charges in the underlying case.”

I believe that Cuccamo is a very fact sensitive opinion and could have easily gone the other way, had it not been for the Lake County holder.

Either way, Cuccamo got to cash in his County Hotel reward points.