[Cite as State v. Smiley, 2013-Ohio-4495.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 99486

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

JAMES J. SMILEY

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-553453 

BEFORE: McCormack, J., Boyle, P.J., and Keough, J. 

RELEASED AND JOURNALIZED: October 10, 2013 
ATTORNEYS FOR APPELLANT

Robert L. Tobik 

Chief Public Defender 

By: John T. Martin 

Assistant Public Defender 

310 Lakeside Avenue 

Suite 200 

Cleveland, OH 44113 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Milko Cecez 

Assistant County Prosecutor 

9th Floor, Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 
TIM McCORMACK, J.: 

{¶1} James Smiley appeals from a judgment of the Cuyahoga Court of Common 

Pleas sentencing him to a six-month jail term for his conviction of attempted drug 

possession. He claims the trial court erred in not granting him jail-time credit. After a 

careful review of the record and applicable law, we affirm the court’s judgment. 

Substantive Facts and Procedural History 

{¶2} The facts of this case are not in dispute. On August 11, 2011, Smiley was 

arrested for drug abuse involving heroin. He was subsequently indicted for drug 

possession, a fifth-degree felony, and possessing criminal tools — a spoon with heroin 

residue — a fifth-degree felony. On September 9, 2011, Smiley failed to appear in court 

for his arraignment. The court issued a capias for him. 

{¶3} A few weeks later, Smiley was arrested for an unrelated burglary case in 

Medina County, in Medina C.P. No. 1-CR-0447. He was held in Medina County jail 

from September 26, 2011, to May 9, 2012, when he was transferred to a prison to 

complete his 18-month sentence in the case.1

 

{¶4} A week into his prison term for the Medina case, on May 16, 2012, the 

Cuyahoga County Court of Common Pleas issued a capias and ordered Smiley’s return 

 1

On October 19, 2011, while in Medina County jail, Smiley filed a “Motion for Notice of 

Availability,” informing the court that he was in Medina County jail and requested a timely resolution 

of the present case. Nothing was done, however, and on April 26, 2012, while still in the Medina 

jail, he filed a motion to dismiss, alleging speedy trial violations. On May 16, 2012, Smiley filed 

another motion to dismiss. Under a plea deal, however, he withdrew his motions to dismiss and 

pleaded guilty to a lesser offense of attempted drug possession. 
from Medina County to Cuyahoga County in connection with the present case. For 

unknown reasons, the order was not carried out until six months later; on December 5, 

2012, he was finally brought to the Cuyahoga County jail to face charges here. 

{¶5} Smiley was held in Cuyahoga County jail until January 2, 2013. On that 

day, he pleaded guilty to attempted drug possession, a first-degree misdemeanor, and the 

court sentenced him to 180 days in jail, to run concurrently with the prison sentence he 

was already serving in the Medina case. The trial court specifically ordered that there 

would be no credit for time served in the Cuyahoga County jail; in the sentence entry the 

court stated: “No jail credit. All credit applied to Medina County case.”2

 

{¶6} Smiley filed a timely appeal from his sentence.3

 In his sole assignment of 

error, he contends the trial court erred when it failed to give him jail-time credit in the 

instant case for the time he served in the Cuyahoga County jail awaiting the disposition of 

the case. 

 2

 Smiley apparently completed his 18-month prison term in the Medina case on March 26, 

2013. There was no evidence in the record that his Medina prison term was increased by the 28 

days he was held in Cuyahoga County jail. 

3

 Smiley posted personal bond on May 23, 2013, and was released from Cuyahoga County 

jail pending the outcome of this appeal. 
Jail-time Credit

{¶7} The practice of awarding jail-time credit has its roots in the Equal 

Protection Clauses of the Ohio and United States Constitutions. State v. Maddox, 8th Dist. 

Cuyahoga No. 99120, 2013-Ohio-3140, ¶ 38, citing State v. Fugate, 117 Ohio St.3d 261, 

2009-Ohio-856, 883 N.E.2d 440, ¶ 7. “Ohio has long awarded offenders a ‘jail-time 

credit’ at sentencing for the time they were confined while awaiting trial, in order to 

equalize the treatment of those who could afford bail with those who could not.” State 

v. Hargrove, 1st Dist. Hamilton No. C-120321, 2013-Ohio-1860, ¶ 5, citing Fugate. 

Jail-time credit is necessary because 

[a] person with money will make bail while a person without money will 

not. If both persons are given identical sentences, the reality is that unless 

the person who did not make bail is given credit for his pretrial time, the 

poorer person will have served more time than the other. Unequal treatment 

based on personal wealth is anathema to the Constitution as a denial of 

equal protection. 

Fugate at ¶ 25 (Stratton, J., concurring). 

{¶8} This principle of equal treatment is codified in R.C. 2967.191 for 

offenders sentenced to prison, and in R.C. 2949.08 for offenders sentenced to jail. 

Hargrove at ¶ 6. Under both statutes, an offender is entitled to have the sentence 

reduced by the days he or she was confined prior to conviction. Both statutes require 

a sentence to be reduced by the total number of days an offender was confined “for any 

reason arising out of the offense” for which the offender was convicted and sentenced. 

R.C. 2967.191 and 2949.08(C)(1). 
{¶9} Citing Fugate as authority, Smiley claims the 28 days he spent in Cuyahoga 

County jail, between December 5, 2012 (when he was transferred there) and January 2, 

2013 (when he was sentenced), should have been credited toward his sentence in the 

Cuyahoga case. Because he did not object to the court’s determination that no jail-time 

credit would be given to the Cuyahoga case, we review the claim under a plain-error 

analysis. 

{¶10} Smiley’s reliance on Fugate is misplaced. In Fugate, the defendant 

committed burglary and theft while on community control for a prior case. He was held 

in jail awaiting simultaneously for the disposition of the community control violation case 

and the burglary and theft case. The trial court imposed 12 months for the community 

control violation and credited defendant the days he spent in jail, and then sentenced him 

to two years in the burglary and theft case, concurrent to his term for the community 

control violation case, but with no jail-time credit. 

{¶11} The issue on appeal in Fugate was whether the jail-time credit awarded by 

the trial court to his sentence in only one of the two cases should be applied to both cases. 

 The Supreme Court of Ohio held that when a defendant is sentenced to concurrent 

prison terms for multiple cases, jail-time credit pursuant to R.C. 2967.191 must be applied 

toward each of the concurrent prison terms. Fugate at syllabus. The court explained 

that, when an offender is sentenced to concurrent terms, “applying credit to one term only 

would, in effect, negate the credit for time that the offender has been held.” 
{¶12} Although the trial court here imposed a jail term on Smiley for the instant 

case concurrent with his sentence for the Medina case, this case is not analogous to 

Fugate. The Fugate defendant was held in jail awaiting for the disposition of two cases 

simultaneously (community control violation and burglary and theft), and his concurrent 

terms for these two cases were imposed at the same time. Consequently, as the Supreme 

Court of Ohio explained, applying credit to only one case would effectively negate the 

jail-time credit given. 

{¶13} The facts of this case are readily distinguishable from Fugate. Here, 

Smiley had already been sentenced and was in the midst of serving an 18-month prison 

term for a prior case, when he was transferred to Cuyahoga County and held in jail for the 

instant case. The 28 days he was held in the Cuyahoga jail was time he would have been 

incarcerated for his Medina conviction. Although this case involved a concurrent 

sentence, Fugate does not apply. See, e.g., State v. DeMarco, 8th Dist. Cuyahoga No. 

96605, 2011-Ohio-5187, ¶ 11 (distinguishing Fugate); Maddox, 8th Dist. Cuyahoga No. 

99120, 2013-Ohio-3140, ¶ 49 (distinguishing Fugate). 

{¶14} Finally, we emphasize that, because Smiley was serving a prison sentence 

for a previous case when he was held in Cuyahoga County jail, he could not have posted 

bond and been released while awaiting the disposition of the new case. Therefore, the 

trial court’s refusal to give jail-time credit did not offend the notion of equal protection, 

which, as the Fugate court explained, is the overall objective of jail-time credit. 

Fugate at ¶ 11. 
{¶15} For the foregoing reasons, the trial court did not commit an error, plain or 

otherwise, in not awarding jail-time credit to a defendant serving prison time in a prior 

out-of-county case for the time held in the county jail awaiting the disposition of a 

subsequent, unrelated case. The assignment of error is without merit. 

{¶16} Judgment affirmed. 

It is ordered that appellee recover of appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. The defendant’s conviction having 

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court 

for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

______________________________________________ 

TIM McCORMACK, JUDGE 

MARY J. BOYLE, P.J., and 

KATHLEEN ANN KEOUGH, J., CONCUR