[Cite as State v. Fuller, 2013-Ohio-5661.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HENRY COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 7-13-06 

 v. 

TIMOTHY FULLER, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Henry County Common Pleas Court 

Trial Court No. 13CR0009 

Judgment Reversed and Cause Remanded 

Date of Decision: December 23, 2013 

 

APPEARANCES: 

 

Alan J. Lehenbauer for Appellant 

Gwen Howe-Gebers and David E. Romaker, Jr. for Appellee 
Case No. 7-13-06 

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PRESTON, P.J. 

{¶1} Defendant-appellant, Timothy Fuller, appeals the Henry County Court 

of Common Pleas’ judgment entry of sentence. We reverse and remand for 

resentencing. 

{¶2} On February 12, 2013, the Henry County Grand Jury indicted Fuller 

on four counts: Count One of menacing by stalking in violation of R.C. 

2903.211(A)(1), (B)(2)(c), (f), (g), and (h), a fourth-degree felony; Count Two of 

receiving stolen property in violation of R.C. 2913.51, a first-degree misdemeanor; 

Count Three of violation of protection order in violation of R.C. 2919.27(A), 

(B)(4), a third-degree felony; and, Count Four of violation of protection order in 

violation of R.C. 2919.27(A), (B)(3), a fifth-degree felony. (Doc. No. 1). (See 

also Doc. No. 42).1

{¶3} On February 21, 2013, Fuller entered pleas of not guilty to the counts 

of the indictment. (Doc. No. 10). 

{¶4} On April 3, 2013, Fuller and plaintiff-appellee, State of Ohio, reached 

a plea agreement, and the trial court held a change-of-plea hearing that day. (See 

Apr. 3, 2013 Tr. at 2); (Doc. No. 42). As part of the plea agreement, the State 

agreed to dismiss Counts One and Two at the time of sentencing and to amend 

Count Three to a violation of protection order in violation of R.C. 2919.27(A), 

 

1

 The parties suggest in their briefs that Fuller was indicted in November 2012; however, the record reflects 

that the four-count indictment was filed on February 12, 2013 for conduct that allegedly took place in 

November 2012. (See Doc. No. 1). 
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(B)(3), a fifth-degree felony. (Id. at 2-3); (Id.). In return, Fuller agreed to plead 

guilty to Count Three, as amended, and Count Four. (Id.); (Id.). 

{¶5} The trial court granted the State’s motion to amend Count Three. 

(Id.); (Doc. No. 43). The trial court also granted Fuller’s request for leave of court 

to withdraw his pleas of not guilty to Counts Three and Four and to enter pleas of 

guilty to Count Three, as amended, and Count Four. (Id. at 19-20); (Id.). The trial 

court accepted Fuller’s guilty pleas and found him guilty on Count Three, as 

amended, and Count Four. (Id. at 20); (Id.). 

{¶6} The trial court held a sentencing hearing on May 6, 2013. (May 6, 

2013 Tr. at 2); (Doc. No. 44). At the hearing, the trial court dismissed Counts One 

and Two after granting the State’s motion to dismiss those counts. (Id. at 3); (Id.). 

The State recommended that the trial court impose a 10-month prison sentence for 

Count Three and an 8-month prison sentence for Count Four, to be run 

consecutively. (May 6, 2013 Tr. at 11). After hearing statements from Fuller’s 

ex-wife, counsel for the State, Fuller, and counsel for Fuller, the trial court 

sentenced Fuller to 12 months at the Corrections Center of Northwest Ohio 

(CCNO), a regional jail, on Count Three as part of community control and ordered 

that he “participate in the HITT Program, if eligible.” (Id. at 20-21); (Doc. No. 

44). On Count Four, the trial court sentenced Fuller to five years of community 

control “upon the standard terms and conditions of the Henry County Adult 
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Probation.” (Id. at 21); (Id.). The trial court “further ordered” that, if Fuller 

violated the terms of his community control, “he be ordered to serve” 12 months 

in prison, which could be followed by three years of post-release control pursuant 

to R.C. 2967.28(C). (Id. at 21); (Doc. No. 44). The trial court referred to the 12-

month prison term for a community-control violation as a “reserve prison term.” 

(May 6, 2013 Tr. at 21-22). At the sentencing hearing, the trial court informed 

Fuller that 162 days for time served would be credited were he to be imprisoned 

following a violation of his community control. (Id. at 21). 

{¶7} On May 9, 2013 at 9:07 a.m., the trial court filed a judgment entry 

reflecting its sentence, although the trial court omitted from that judgment entry its 

order concerning credit for time served. (Doc. No. 44). At 11:00 a.m. that 

morning, Fuller filed a pro se motion to reduce his jail sentence by 165 days for 

time served. (Doc. No. 45). The trial court filed a judgment entry at 11:01 a.m. 

that morning acknowledging Fuller’s pro se motion and stating that he would be 

credited for time served if he violated his community control and was sent to 

prison. (Doc. No. 46).2

 Also in its May 9, 2013 11:01 a.m. judgment entry, the 

trial court stated that the sentences it imposed were to be served consecutively. 

(Id.). 

 

2

 In its May 9, 2013 11:01 a.m. judgment entry, the trial court said that its May 9, 2013 9:07 a.m. judgment 

entry provided that Fuller “was to serve 12 months at [CCNO] commencing May 6, 2013 on Count I.” 

(Doc. No. 46). However, the May 9, 2013 9:07 a.m. judgment entry reflects that the trial court imposed the 

12-month jail sentence for Count Three, and it dismissed Count One. (Doc. No. 44). 
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{¶8} On June 5, 2013, Fuller filed a notice of appeal challenging the trial 

court’s May 9, 2013 9:07 a.m. and May 9, 2013 11:01 a.m. judgment entries. 

(Doc. No. 47). He raises three assignments of error for our review. Because they 

are dispositive, we address Fuller’s first and third assignments of error. 

Assignment of Error No. I 

The trial court erred in imposing a twelve month jail sentence 

upon appellant as the trial court was required to sentence 

appellant to a term of community control pursuant to R.C. 

2929.13 and R.C. 2929.16. 

{¶9} In his first assignment of error, Fuller argues that the trial court erred 

by imposing a 12-month jail sentence. Specifically, Fuller argues that R.C. 

2929.13(B)(1)(a) does not apply in his case, that the trial court was required by 

R.C. 2929.13(B)(3)(b) to impose a sentence of community control, and that his 12-

month jail sentence exceeds the 6-month maximum found in R.C. 2929.16(A)(2). 

{¶10} A trial court’s sentence will not be disturbed on appeal absent a 

defendant’s showing by clear and convincing evidence that the sentence is 

unsupported by the record; that the sentencing statutes’ procedure was not 

followed or there was not a sufficient basis for the imposition of a prison term; or 

that the sentence is contrary to law. State v. Ramos, 3d Dist. Defiance No. 4-06-

24, 2007-Ohio-767, ¶ 23 (the clear and convincing evidence standard of review set 

forth under R.C. 2953.08(G)(2) remains viable with respect to those cases 

appealed under the applicable provisions of R .C. 2953.08(A), (B), and (C) * * *); 
Case No. 7-13-06 

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State v. Rhodes, 12th Dist. Butler No. CA2005-10-426, 2006-Ohio-2401, ¶ 4; 

State v. Tyson, 3d Dist. Allen Nos. 1-04-38 and 1-04-39, 2005-Ohio-1082, ¶ 19, 

citing R.C. 2953.08(G). 

{¶11} Clear and convincing evidence is that “which will produce in the 

mind of the trier of facts a firm belief or conviction as to the facts sought to be 

established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the 

syllabus; State v. Boshko, 139 Ohio App.3d 827, 835 (12th Dist.2000). An 

appellate court should not, however, substitute its judgment for that of the trial 

court because the trial court is “‘clearly in the better position to judge the 

defendant’s dangerousness and to ascertain the effect of the crimes on the 

victims.’” State v. Watkins, 3d Dist. Auglaize No. 2-04-08, 2004-Ohio-4809, ¶ 16, 

quoting State v. Jones, 93 Ohio St.3d 391, 400 (2001). 

{¶12} Fuller pled guilty to and was found guilty of two fifth-degree 

felonies, and the trial court sentenced Fuller to a 12-month jail term on one count 

and five years of community control on the other count. (Doc. No. 43). R.C. 

2929.13(B)(1)(a) sets forth circumstances under which a trial court is required to 

sentence an offender to a 12-month community-control sanction for a fourth or 

fifth-degree felony that is not an offense of violence, and R.C. 2929.13(B)(1)(b) 

sets forth circumstances under which a trial court has discretion to sentence an 

offender to a prison term for a fourth or fifth-degree felony that is not an offense 
Case No. 7-13-06 

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of violence. See State v. Spencer, 3d Dist. Hardin Nos. 6-12-15 and 6-12-16, 

2013-Ohio-137, ¶ 21. Here, because neither party argues that Fuller was required 

to serve a prison term, and because the trial court sentenced Fuller to community 

control, not a prison term, on both counts, we need not address Fuller’s argument 

that the trial court was required to sentence him to community control. 

{¶13} The parties also agree that the duration of Fuller’s jail sentence 

exceeded the statutory limit set forth in R.C. 2929.16 and, therefore, was contrary 

to law. We agree with the parties. If a trial court is not required to sentence a 

felony offender to a prison term, R.C. 2929.15 allows the trial court to “directly 

impose a sentence that consists of one or more community control sanctions 

authorized [by R.C. 2929.16, 2929.17, or 2929.18] * * *.” State v. Williams, 3d 

Dist. Hancock No. 5-10-02, 2011-Ohio-995, ¶ 18-19, quoting R.C. 2929.15(A)(1). 

R.C. 2929.16 allows a trial court to impose one or more of the following 

community residential sanctions on an offender: 

(1) A term of up to six months at a community-based correctional 

facility that serves the county; 

(2) Except as otherwise provided in division (A)(3) of this section 

and subject to division (D) of this section, a term of up to six months 

in a jail; 
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(3) If the offender is convicted of a fourth degree felony OVI 

offense and is sentenced under division (G)(1) of section 2929.13 of 

the Revised Code, subject to division (D) of this section, a term of 

up to one year in a jail less the mandatory term of local incarceration 

of sixty or one hundred twenty consecutive days of imprisonment 

imposed pursuant to that division; 

(4) A term in a halfway house; 

(5) A term in an alternative residential facility. 

R.C. 2929.16(A). 

{¶14} Here, the trial court sentenced Fuller to 12 months at CCNO, a 

regional jail, on Count Three, as amended. Under R.C. 2929.16(A)(2), the 

maximum jail term the trial court could have imposed was 6 months. Because the 

trial court’s jail sentence on Count Three exceeded the maximum allowed jail 

term, it is contrary to law. See State v. Snyder, 3d Dist. Seneca No. 13-11-37, 

2012-Ohio-3069, ¶ 21. Therefore, we sustain Fuller’s first assignment of error, 

reverse the trial court’s sentence on Count Three,3

 and remand for resentencing.4

 

3

 Fuller has not assigned error challenging the trial court’s sentence on Count Four, and we do not address 

it in this Opinion. 

4

 The trial court’s judgment entry containing its 12-month jail sentence on Count Three did not state that it 

was a community-control sanction, although the trial court stated at the sentencing hearing that it sentenced 

Fuller to 12 months in jail “under community control.” (Doc. No. 44); (May 6, 2013 Tr. at 20, 22). In 

addition, the trial court’s imposition of consecutive sentences for Counts Three and Four and its findings 

concerning jail-time credit were contained in a subsequent, separate judgment entry, rather than a nunc pro 

tunc entry. (Doc. No. 46). These are issues that the trial court may remedy upon resentencing. See

Crim.R. 32(C). 
Case No. 7-13-06 

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{¶15} Finally, the parties differ in their opinions as to the applicability of 

R.C. 2929.13(B)(1)(a) and whether the trial court was required to sentence Fuller 

to a 12-month community-control sanction. Because we are remanding for 

resentencing, we need not address this issue. 

Assignment of Error No. III 

The trial court erred by not granting appellant jail time credit in 

accordance with Ohio Revised Code sections 2949.08 and 

2967.191. 

{¶16} In his third assignment of error, Fuller argues that the trial court erred 

by not reducing his jail sentence by the amount of his pretrial confinement. 

Specifically, Fuller argues that R.C. 2949.08 and 2967.191 required the trial court 

to reduce his sentence and that by awarding him jail-time credit for potential 

prison time he might serve if he violates the terms of his community-control 

sentence on Count Four, the trial court violated the Double Jeopardy Clause and 

the rule of lenity. 

{¶17} As with Fuller’s first assignment of error, we apply a clear-andconvincing standard of review to the trial court’s decision concerning jail-time 

credit relative to the sentence it imposed on Fuller. That is, we examine whether 

Fuller has demonstrated by clear and convincing evidence that the trial court failed 

to properly award him jail-time credit pursuant to R.C. 2949.08 and 2967.191. See 
Case No. 7-13-06 

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Ramos, 2007-Ohio-767, at ¶ 23; Rhodes, 2006-Ohio-2401, at ¶ 4; Tyson, 2005-

Ohio-1082, at ¶ 19. 

{¶18} The trial court sentenced Fuller to a 12-month jail term as part of his 

community control for Count Three but did not award him jail-time credit for that 

sentence. Rather, the trial court said that jail-time credit would be given to Fuller 

if he violated his community control and was sentenced to prison as a result. We 

conclude that the trial court erred by awarding jail-time credit in this manner. 

{¶19} Fuller cites two statutes in support of his argument that the trial court 

was required to reduce his jail sentence: R.C. 2967.191 and 2949.08. R.C. 

2967.191 governs jail-time credit for prison terms and provides that “[t]he 

department of rehabilitation and correction shall reduce the stated prison term of a 

prisoner * * * by the total number of days that the prisoner was confined for any 

reason arising out of the offense for which the prisoner was convicted and 

sentenced * * *.” See State v. Slappey, 3d Dist. Marion No. 9-12-58, 2013-Ohio1939, ¶ 37. Under R.C. 2967.191, a defendant is entitled to jail-time credit only 

for confinement that is related to the offense for which he or she is being 

sentenced. Id., citing State v. Duaghenbaugh, 3d Dist. Wyandot No. 16-09-05, 

2009-Ohio-3823, ¶ 18. “Accordingly, a defendant is not entitled to jail-time credit 

for any period of incarceration that arises from facts separate and apart from those 

on which the current sentence is based.” Id., citing Duaghenbaugh at ¶ 18. 
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“While the Adult Parole Authority has the duty to grant jail time credit, the trial 

court has the duty to properly calculate the number of days to be credited.” State 

v. Eaton, 3d Dist. Union No. 14-04-53, 2005-Ohio-3238, ¶ 9. 

{¶20} The other statute Fuller cites is R.C. 2949.08. That statute governs 

jail-time credit for terms of incarceration in jail and provides, in relevant part: 

(A) When a person who is convicted of or pleads guilty to a felony 

is sentenced to a community residential sanction in a communitybased 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 
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under this section. The 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. 

See State v. Ward, 16 Ohio App.3d 276 (12th Dist.1984), paragraph one of the 

syllabus (“Pursuant to R.C. 2949.08, a trial court has the duty to certify to a jailer 

the number of days a defendant was confined while awaiting bail and the jailer 

must give the defendant credit for that time in determining the date of release from 

confinement following conviction.”). See also State v. Smiley, 8th Dist. Cuyahoga 

No. 99486, 2013-Ohio-4495, ¶ 8, citing State v. Hargrove, 1st Dist. Hamilton No. 

C-120321, 2013-Ohio-1860, ¶ 6. Similar to R.C. 2967.191, R.C. 2949.08 applies 
Case No. 7-13-06 

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to confinement “for any reason arising out of the offense for which the person was 

convicted and sentenced * * *.” R.C. 2949.08(B). 

{¶21} Here, the trial court awarded Fuller jail-time credit toward a prison 

sentence that may or may not be imposed in the future, while at the same time 

sentencing Fuller to a definite jail term and not awarding him jail-time credit for 

that term.5

 Awarding jail-time credit has its roots in the Equal Protection Clauses 

of the United States and Ohio Constitutions and is now governed by statute in 

Ohio. State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, ¶ 7-8; Smiley at ¶ 8, 

citing R.C. 2967.191 and 2949.08. The overall objective of awarding jail-time 

credit is to comply with the requirements of equal protection by reducing the total 

time that offenders spend in prison or jail after sentencing by an amount equal to 

the time that they were previously held. See Smiley at ¶ 7-8, citing Hargrove at ¶ 

6. See also Fugate at ¶ 11. 

{¶22} By imposing a definite jail term but awarding Fuller’s jail-time credit 

toward a prison sentence that may or may not be imposed in the future, the trial 

court failed to comply with the requirements of equal protection. The trial court 

acknowledged that it “didn’t impose prison” on Fuller and referred to the 12-

month prison term following a community-control violation as a “reserve prison 

term.” (May 6, 2013 Tr. at 22); (Doc. No. 46). “The purpose of the community 

 

5

 Although we reversed the trial court’s 12-month jail sentence on Count Three, for purposes of resolution 

of Fuller’s third assignment of error, we assume the imposition of a definite jail sentence. 
Case No. 7-13-06 

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control statute [ ] is not to sentence a defendant to a specific prison term and then 

suspend or reserve that prison term, the purpose is to notify a defendant of a 

specific prison term that a defendant will receive if he violates community 

control,” although using the term “reserve” does not itself create an error in 

sentencing. (Emphasis sic.) State v. Berry, 3d Dist. Defiance No. 4-12-04, 2012-

Ohio-4660, ¶ 25-29. 

{¶23} The 12-month prison term following a community-control violation 

is not part of the trial court’s sentence. “Following a community control violation, 

the trial court conducts a second sentencing hearing. At this second hearing, the 

court sentences the offender anew and must comply with the relevant sentencing 

statutes.” State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, ¶ 17, citing State v. 

Martin, 8th Dist. Cuyahoga No. 82140, 2003-Ohio-3381, ¶ 35. Therefore, the trial 

court awarded jail-time credit for a prison term to which it did not sentence Fuller, 

while at the same time imposing a definite jail term with no jail-time credit. If 

Fuller does not violate community control, the total time that he spends in jail or 

prison after sentencing will not be reduced by an amount equal to the time that he 

was previously confined, so the trial court’s decision concerning jail-time credit 

does not comply with the requirements of equal protection. See Fugate at ¶ 11. 

For these reasons, the trial court erred. 
Case No. 7-13-06 

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{¶24} For the reasons above, we hold that when a trial court sentences a 

defendant to a definite jail term as part of community control on one felony count 

and to nonresidential community-control sanctions on a second felony count, the 

trial court must award earned jail-time credit on the definite jail term. 

{¶25} In its brief, the State argues only that Fuller was sentenced to jail in 

this case, and R.C. 2967.191 applies to “prison terms,” not jail terms. However, 

the State does not address R.C. 2949.08, nor does it address the equal-protection 

implications of the trial court’s decision. 

{¶26} Therefore, we sustain Fuller’s third assignment of error, reverse the 

trial court’s decision concerning jail-time credit, and remand for resentencing. 

Assignment of Error No. II 

The trial court erred by imposing the maximum sentence for a 

felony of the fifth degree. 

{¶27} In his second assignment of error, Fuller argues that the trial court 

erred by not considering the purposes and principles for felony sentencing set forth 

in R.C. 2929.11 and the factors relating to the seriousness of the offense and the 

recidivism of the offender under R.C. 2929.12 when the trial court sentenced him 

to a 12-month jail term. 

{¶28} In light of our decision to reverse the judgment of the trial court and 

remand for resentencing, Fuller’s second assignment of error has been rendered 

moot, and we decline to address it. App.R. 12(A)(1)(c). 
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{¶29} Having found error prejudicial to the appellant herein in the 

particulars assigned and argued, we reverse the judgment of the trial court and 

remand for further proceedings consistent with this opinion. 

Judgment Reversed and 

Cause Remanded 

WILLAMOWSKI and SHAW, J.J., concur. 

/jlr