COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69127 : ACCELERATED DOCKET STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : THOMAS A. HUMES : PER CURIAM : Defendant-Appellant : : DATE OF ANNOUNCEMENT APRIL 25, 1996 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-317513 JUDGMENT: Remanded for Sentencing. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. DONALD GREEN, ESQ. Cuyahoga County Prosecutor Assistant Public Defender DAVID ZIMMERMAN, ESQ. 100 Lakeside Place Assistant County Prosecutor 1200 West Third Street 8th Floor Justice Center Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 -2- PER CURIAM: In this accelerated appeal, defendant-appellant, Thomas Humes, appeals the sentence imposed on him by the trial court after his guilty plea to the charge of abduction, and he assigns the following error for our review: THE TRIAL COURT'S FAILURE TO GRANT THOMAS HUMES CREDIT FOR TIME SPENT IN CONFINEMENT PRIOR TO HIS GUILTY PLEA VIOLATED THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT AND CRIMINAL RULE 32.2(D). Having reviewed the record of the proceedings and the legal arguments presented by the parties, we remand the case to the trial court for resentencing. The apposite facts follow. On October 2, 1994, Thomas Humes was arrested by Cleveland Heights Police and charged with abducting his estranged wife. After a preliminary hearing in Cleveland Heights Municipal Court, Humes was bound over to Cuyahoga County Common Pleas Court. On December 14, 1994, Humes was indicted on charges of kidnapping, felonious assault, theft, and aggravated burglary. On April 18, 1995, Humes pleaded guilty to abduction, and the other counts of the indictment were nolled. At the May 9, 1995 sentencing hearing, Humes' trial counsel advised the court that Humes had been in jail for approximately 223 days. The trial court sentenced Humes to two to ten years in prison. The issue before us is who is required by law to determine credit for time served, the trial court or the Adult Parole Authorities or the appropriate penal institution. In resolving this issue, we must look to Crim.R. 32.2(D) and R.C. 2967.191. In -3- both the rule and the statute, it is contemplated that the trial court determined the credit for time served and forwarded that information to the appropriate penal institution. Crim.R. 32.2(D) in part says: *** In addition, if the defendant is committed to a penal or reformatory institution, the court shall forward a statement of the number of days confinement which the defendant is entitled by law to have credited to his minimum and maximum sentence. In interpreting this section, appellate courts have held a trial court is mandated by law to determine the jail time for which a defendant is to be credited and transmit that information to the penal institution. State v. Smith (1992), 71 Ohio App.3d 302, 303- 304. See, also, Workman v. Cardwell (N.D. Ohio 1972), 338 F. Supp. 893, 31 Ohio Misc. 99; Mallory v. State (1972), 31 Ohio Misc. 113. Anticipating the right to credit for time served from Workman v. Cardwell and Mallory v. State, the Ohio General Assembly enacted R.C. 2967.191. See R.C. 2967.191, Committee Comment to H.511. Since Workman and Mallory, it has been unnecessary to reiterate the 14th Amendment issue in the right to credit for time served. R.C. 2967.191 concluded time served would be credited and went on to say the following: The adult parole authority shall reduce the minimum and maximum sentence or the definite sentence of a prisoner by the total number of days that the prisoner was confined for any reason arising out of the offense for which he was convicted and sentenced, including confinement in lieu of bail while awaiting trial, confinement for examination to determine his competence to stand trial or sanity, confinement in a community-based correctional -4- facility and program or district community based correctional facility and program, and confinement while awaiting transportation to the place where he is to serve his sentence. Thereafter, Crim.R. 32.2(D) provided the trial court would be responsible for determining the time and forwarding same to the adult parole authority so it may fulfill its duties under R.C. 2967.191. An issue has arisen as to whether the Adult Parole Authority may ignore the trial court's determination of credit for time served and substitute its own in compliance with R.C.2967.191. The appellate courts have resolved this question by concluding it is the trial court and only the trial court who is clothed with the responsibility to determine credit for time served. Corder v. Ohio Dept. of Rehab. and Corr. (1994), 94 Ohio App.3d 315. Of course, the trial court is not required to hold a hearing to make its determination. Upon becoming aware of the defendant's eligibility for time served, the trial court may validate the information any way it feels appropriate, so long as it is done. For example, the sentencing court may ask the sheriff to validate the information or it may on its own calculate the time. In conclusion, the trial court's duty is to make a factual determination of the number of days credited to which the defendant is entitled and, if the defendant is sentenced to prison, the court's journal entry of sentence must include a statement of the number of days credit to which the defendant is entitled. See Crim.R. 32(D) and O.A.C. 5120-2-04(B). -5- In this case, the journal entry of sentence did not include a statement of the number of days to be credited. Accordingly, we remand this case to the trial court for a determination of the credit to be given Humes for time served, which must be forwarded to the penal institution where Humes is jailed. Case remanded for action consistent with this opinion. -6- This case is remanded to the trial court. It is, therefore, considered that said Appellant recover of said Appellee his costs herein taxed. It is ordered that a special mandate be sent to said Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA ANN BLACKMON, PRESIDING J. SARA J. HARPER, JUDGE ANN DYKE, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .