[Cite as State v. Smith, 2022-Ohio-564.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

BUTLER COUNTY 

STATE OF OHIO, 

 Appellee, 

 - vs - 

DEREK SMITH, 

 Appellant. 

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CASE NO. CA2021-07-085 

O P I N I O N 

2/28/2022 

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS 

Case No. CR-2019-07-1071 

Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael Greer, Assistant 

Prosecuting Attorney, for appellee. 

Michele Temmel, for appellant. 

 S. POWELL, J.

{¶ 1} Appellant, Derek Smith, appeals the decision of the Butler County Court of 

Common Pleas awarding him 148 days of jail-time credit rather than 230 days of jail-time 

credit after he pled guilty and was convicted of one count of improperly handling a firearm 

in a motor vehicle. For the reasons outlined below, we reverse the common pleas court's 
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decision and remand this matter for the limited purpose of issuing a nunc pro tunc 

sentencing entry that properly reflects the amount of jail-time credit Smith was entitled to 

receive; 230 days of jail-time credit rather than 148 days of jail-time credit, a difference of 

82 days. 

{¶ 2} On June 30, 2019, Smith was arrested and held in the Butler County Jail on 

charges of having a weapon while under disability, improperly handing a firearm in a motor 

vehicle, carrying a concealed weapon, receiving stolen property, obstructing official 

business, and disorderly conduct. The following day, on July 1, 2019, Smith was arraigned 

in the Butler County Area II Court and bond was set at $10,000. The record is devoid of 

any evidence to indicate Smith posted the $10,000 bond. 

{¶ 3} On July 3, 2019, the Area II Court held a preliminary hearing and bound the 

charges over to the Butler County Court of Common Pleas for consideration by the Butler 

County Grand Jury. 

{¶ 4} On July 31, 2019, the Butler County Grand Jury returned an indictment 

charging Smith with single counts of improperly handling a firearm in a motor vehicle, 

carrying a concealed weapon, obstructing official business, and disorderly conduct. Smith 

was subsequently arraigned in the common pleas court on August 5, 2019. Smith's bond 

was thereafter reduced from $10,000 to $5,000. Just like with the $10,000 bond, the record 

is devoid of any evidence to indicate Smith posted the $5,000 bond. 

{¶ 5} On September 23, 2019, Smith pled guilty to one count of improperly handling 

a firearm in a motor vehicle in exchange for the other three charges against him being 

dismissed. After Smith entered his guilty plea, the common pleas court scheduled the 

matter for a sentencing hearing to take place on October 28, 2019. The common pleas 

court also amended the $5,000 bond to an OR, personal recognizance bond. The record 

indicates Smith posted the OR bond later that day. 
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{¶ 6} On October 28, 2019, the common pleas court sentenced Smith to a five-year 

community control term. The conditions of Smith's community control required Smith to 

serve 30 days in the Butler County Jail. The conditions of Smith's community control also 

required Smith to take corrective thinking classes, to be subject to drug and alcohol usage 

monitoring, and to obtain and maintain full-time employment, among others. The common 

pleas court further notified Smith that, as of that date, he had accrued 86 days of jail-time 

credit. This notice was later included in the common pleas court's October 29, 2019 

sentencing entry. 

{¶ 7} On February 11, 2020, a notice was filed with the common pleas court alleging 

Smith had violated the conditions of his community control by failing to report to his 

probation officer as ordered. The notice also alleged Smith had violated the conditions of 

his community control by being unsuccessfully terminated from his drug and alcohol 

treatment program and for failing to obtain and maintain full-time employment. The notice 

further stated that Smith was at that time being held in custody at the Butler County Jail. 

{¶ 8} On February 14, 2020, a common pleas court magistrate issued an entry 

finding there was probable cause to believe Smith had violated the conditions of his 

community control as alleged in the February 11, 2020 notice. Ten days later, on February 

24, 2020, the common pleas court provided Smith with another OR, personal recognizance 

bond. Smith posted the OR bond later that day. 

{¶ 9} On April 6, 2020, the common pleas court held a hearing and determined that 

Smith had violated the conditions of his community control as alleged in the February 11, 

2020 notice. However, instead of revoking Smith's community control, the common pleas 

court placed Smith on GPS monitored house arrest for 30 days. The common pleas court 

also ordered Smith to successfully complete an intensive out-patient program at Sojourner 

Recovery Services. 
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{¶ 10} On September 25, 2020, a notice was filed with the common pleas court 

alleging Smith had violated the conditions of his community control because of him being 

arrested and charged with single counts of trafficking in drugs and driving under suspension. 

Just like the previous notice filed on February 11, 2020, this notice also stated that Smith 

was at that time being held in custody at the Butler County Jail. 

{¶ 11} On September 30, 2020, a common pleas court magistrate issued an entry 

finding there was probable cause to believe Smith had violated the conditions of his 

community control as alleged in the September 25, 2020 notice. Shortly thereafter, on 

October 8, 2020, Smith moved the common pleas court to provide him with yet another OR, 

personal recognizance bond. The common pleas court granted Smith's motion on October 

12, 2020. Smith posted the OR bond later that day. 

{¶ 12} On December 8, 2020, a motion was filed with the common pleas court 

requesting Smith's OR bond be revoked because of Smith being arrested and charged with 

single counts of failing to comply with a police officer, obstructing official business, resisting 

arrest, and having an open container in a motor vehicle. The common pleas court granted 

the motion that same day and ordered Smith be remanded into the custody of the Butler 

County Jail. Three days later, on December 11, 2020, a notice was filed with the common 

pleas court alleging Smith had violated the conditions of his community control based on 

him being arrested and charged with the four above named offenses. 

{¶ 13} On March 29, 2021, the common pleas court held a hearing and determined 

that Smith had violated the conditions of his community control for a second time. Upon 

making this determination, the common pleas court revoked Smith's community control and 

sentenced him to 18 months in prison, less 148 days of jail-time credit. 

{¶ 14} On June 4, 2021, Smith moved the common pleas court to recalculate its 

award of jail-time credit to include the days "that were not credited from prior to the original 
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disposition of the case." The common pleas court denied Smith's motion in an entry filed 

on July 19, 2021. Smith now appeals the common pleas court's decision, raising the 

following single assignment of error. 

{¶ 15} THE TRIAL COURT'S DECISION TO GIVE 148 DAYS OF JAIL TIME 

CREDIT FOR TIME SERVED WAS CONTRARY TO LAW. 

{¶ 16} In support of his single assignment of error, Smith argues the common pleas 

court erred by awarding him with 148 days of jail-time credit rather than 230 days of jailtime credit, a difference of 82 days. We agree. 

{¶ 17} "The Equal Protection Clause requires that all time spent in jail prior to trial 

and prior to commitment must be credited to the prisoner's sentence." State v. Dobbins, 

12th Dist. Butler Nos. CA2019-04-061 thru CA2019-04-063, 2020-Ohio-726, ¶ 18, citing

State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, ¶ 7. This principle is codified in R.C. 

2967.191(A). State v. McClellan, 12th Dist. Preble No. CA2018-10-014, 2019-Ohio-5034, 

¶ 13. Pursuant to that statute, the department of rehabilitation and correction must 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," including confinement in lieu of bail while the prisoner awaited trial. 

{¶ 18} However, "[a]lthough the department of rehabilitation and correction 'has a 

mandatory duty pursuant to R.C. 2967.191 to credit an inmate with jail time already served, 

it is the trial court that makes the factual determination as to the number of days of 

confinement that a defendant is entitled to have credited toward his sentence.'" State v. 

Brown, 12th Dist. Butler No. CA2020-08-082, 2021-Ohio-997, ¶ 12, quoting State ex rel. 

Rankin v. Ohio Adult Parole Auth., 98 Ohio St.3d 476, 2003-Ohio-2061, ¶ 7. "A trial court's 

failure to properly calculate an offender's jail-time credit and to include the amount of jailtime credit in the body of the offender's sentencing judgment amounts to plain error." State 
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v. Edmonds, 12th Dist. Warren No. CA2014-03-045, 2015-Ohio-2733, ¶ 9. 

{¶ 19} As noted above, to support his single assignment of error, Smith argues the 

common pleas court erred by awarding him 148 days of jail-time credit rather than 230 days 

of jail-time credit. The state concedes, and we agree, that based on the record properly 

before this court the common pleas court erred by awarding Smith with only 148 days of 

jail-time credit when it should have instead awarded 230 days of jail-time credit, a difference 

of 82 days. We reach this decision based on the following calculation: 

1. 86 days between June 30, 2019, the date of Smith's arrest, 

and September 23, 2019, the date Smith entered his guilty plea 

and was released on an OR bond, as confirmed by the common 

pleas court's October 29, 2019 sentencing entry; 

2. 14 days between February 11, 2020, the date Smith was in 

custody at the Butler County Jail pursuant to the first notice 

alleging Smith had violated the conditions of his community 

control, and February 24, 2020, the date Smith was again 

released on an OR bond; 

3. 18 days between September 25, 2020, the date Smith was 

in custody at the Butler County Jail pursuant to the second 

notice alleging Smith had violated the conditions of his 

community control, and October 12, 2020, the date Smith was 

once again released on an OR bond; and 

4. 112 days between December 8, 2020, the date Smith was in 

custody at the Butler County Jail after his OR bond was revoked

by the common pleas court, and March 29, 2021, the date the 

common pleas court revoked Smith's community control. 

{¶ 20} When added together, this equates to a total of 230 days of jail-time credit 

that Smith was entitled to receive, not 148 days of jail-time credit as awarded by the 

common pleas court: (86 days + 14 days = 100 days) + (18 days + 112 days = 130 days) = 

230 total days. The common pleas court, therefore, erred by awarding Smith 148 days of 

jail-time credit rather than 230 days of jail-time credit. Accordingly, because we find error 

with the common pleas court's calculation of the days of jail-time credit Smith was entitled 

to receive, Smith's single assignment of error is sustained and this matter is remanded to 
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the common pleas court for the limited purpose of issuing a nunc pro tunc sentencing entry 

that properly reflects the amount of jail-time credit Smith was entitled to receive; 230 days 

of jail-time credit rather than 148 days of jail-time credit, a difference of 82 days. 

{¶ 21} Judgment reversed and remanded. 

 PIPER, P.J., and HENDRICKSON, J., concur.