[Cite as State v. Hayes, 2018-Ohio-2749.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee

v. 

CLINTON HAYES 

Defendant-Appellant 

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Appellate Case No. 27730 

Trial Court Case No. 2016-CR-3861/7 

(Criminal Appeal from 

Common Pleas Court) 

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O P I N I O N 

Rendered on the 13th day of July, 2018. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by MICHAEL SCARPELLI, Atty. Reg. No. 0093662, Assistant 

Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, 

Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422

 Attorney for Plaintiff-Appellee 

 

J. DAVID TURNER, Atty. Reg. No. 0017456, P.O. Box 291771, 101 Southmoor Circle 

NW, Kettering, Ohio 45429 

 Attorney for Defendant-Appellant 

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TUCKER, J. 
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{¶ 1} Defendant-appellant, Clinton Hayes, was indicted on fourteen felonies as 

follows: one count of engaging in a pattern of corrupt activity, a first degree felony; three 

counts of trafficking in heroin, felonies of the fourth degree; three counts of possession of 

heroin, felonies of the fourth degree; two counts of trafficking in heroin, felonies of the fifth 

degree; two counts of possession of heroin, felonies of the fifth degree; possession of 

heroin, a third degree felony; possession of cocaine, a fifth degree felony, and one count 

of having weapons while under disability, a third degree felony. 

{¶ 2} Hayes filed a motion to suppress evidence seized as the result of the 

execution of a search warrant at 921 Geneva Road, Dayton. The trial court overruled 

the suppression motion. 

{¶ 3} The parties, thereafter, engaged in plea negotiations resulting in a plea 

agreement. Hayes, under the agreement, pleaded guilty to the amended lesser included 

offense of attempted engaging in a pattern of corrupt activity, a second degree felony, 

three counts of trafficking in heroin, fourth degree felonies, one count of possession of 

heroin, a third degree felony, and one count of having weapons while under disability, a 

third degree felony. The remaining counts were dismissed, and it was agreed that Hayes 

would serve a three-year prison term with no possibility that judicial release would reduce 

the prison term. Though this was the agreement, the prosecuting attorney stated at the 

plea hearing, “[i]n this case * * * Hayes does have some prior F1 or 2s [referring to 

convictions involving first or second degree felonies] so a prison term would be mandatory 

anyway.” This statement prompted no response from Hayes or his trial counsel. 

{¶ 4} The trial court, after the plea agreement was set forth, engaged Hayes in a 
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Crim.R. 11 colloquy resulting in the trial court’s acceptance of Hayes’s guilty pleas to the 

indicated offenses. The trial court, as part of the plea discussion, asked Hayes if he 

understood “that based upon the mandatory nature of some counts and based upon the 

agreement there will be a prison sentence[.]” Hayes responded, “[Y]es sir.” The plea 

form, in addition, stated “Agreed 3 years * * * no judicial release[,]” but the box indicating 

that the prison term was mandatory was not marked. 

{¶ 5} The trial court, at the sentencing hearing, imposed the agreed upon, and 

mandatory, three-year prison term, with the trial court informing Hayes that the prison 

term was mandatory. Hayes received 56 days of jail time credit. Hayes, thereafter, filed 

a motion requesting recalculation of the jail time credit, and this motion was overruled. 

The trial court also informed Hayes at the sentencing hearing that he was not eligible for 

shock incarceration and intensive program prison, with this ineligibility being reflected in 

Hayes’s termination entry. This appeal followed, and we appointed counsel. 

{¶ 6} Appellate counsel filed a brief under the authority of Anders v. California, 386 

U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) stating that he could “find no error by the 

trial court prejudicial to the rights of [Hayes] which may be argued * * * on appeal.” 

Appellate counsel, consistent with his duties under Anders, set forth three potential 

assignments of error as follows: (1) whether the trial court erred “by failing to explicitly 

label [Hayes’s] sentence for attempt[ed] engaging in a pattern of corrupt activity as 

[requiring a] mandatory [prison term]”; (2) whether the trial court erred by not granting 

Hayes approximately 161 days of jail time credit “for the time [he] was incarcerated in 

prison by reason of a sentence previously imposed for a different offense”; and (3) 

whether the trial court’s findings disapproving shock incarceration and intensive program 
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prison were “inadequate.” Appellate counsel, in the concluding section of the Anders

brief, requested leave to withdraw as Hayes’s appellate attorney. 

{¶ 7} In an order filed on March 30, 2018, we informed Hayes of the Anders filing 

and further informed him of his right to file a pro se brief within sixty days of March 30. 

Hayes has not filed a brief. 

{¶ 8} Consistent with our duty under Anders, we have carefully reviewed the 

potential assignments of error articulated by the Anders brief. The potential assignments 

of error are discussed below in the order they were discussed in the Anders brief. 

{¶ 9} Turning first to the trial court’s “failure” to “explicitly label” Hayes’s sentence 

as a sentence which requires a mandatory prison term, we determine that this failure does 

not raise an issue that has potential appellate merit. Hayes, based upon his guilty plea 

to a second degree felony and his previous conviction for a second degree felony 

possession of heroin offense, had to be sentenced to prison under R.C. 2929.13(F)(6). 

However, the parties, irrespective of the R.C. 2929.13(F)(6) mandate, agreed to a threeyear prison term with no possibility of judicial release. It was, given this, not incumbent 

upon the trial court to inform Hayes that a prison term was mandatory. Nonetheless, 

Hayes, at both the plea and sentencing hearings, was so informed, and he indicated he 

understood. The fact that the plea form box indicating that a prison term is mandatory 

was not checked does not create a potentially meritorious argument that Hayes’s plea 

was less than knowing and voluntary or otherwise deficient in any fashion. 

{¶ 10} We also find no potentially meritorious appellate argument regarding 

Hayes’s receipt of 56 days of jail time credit. This potential assignment of error suggests 

that Hayes may, instead of 56 days, be entitled to approximately 161 days of credit based 
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upon his concurrent prison incarceration in another case with his pre-trial incarceration in 

this case. A defendant has an equal protection right to credit against any prison term for 

any period of pre-trial incarceration, with this equal protection right being codified at R.C. 

2967.191. State v. Nagy, 2d Dist. Greene No. 2003-CA-21, 2003-Ohio-6903, ¶ 3 - 4. A 

defendant, however, is not entitled to jail time credit for pre-trial incarceration that is 

concurrent with incarceration resulting from a separate, distinct offense. Id. at ¶ 4, citing 

State ex rel. Jordan v. Haskins, 131 Ohio App.3d 791, 723 N.E.2d 1116 (7th Dist. 1998). 

Hayes’s suggestion, given the above discussion, that he may be entitled in this case to 

jail time credit for pre-trial incarceration that occurred concurrently with incarceration in a 

separate case is without arguable appellate merit. 

{¶ 11} Hayes’s final suggested assignment of error is that the trial court’s findings 

disapproving shock incarceration and intensive program prison were not adequate. A 

defendant, under R.C. 5120.032(B)(2)(a) (intensive program prison) and R.C. 

5120.031(A)(4) (shock incarceration), is not eligible for either intensive program prison or 

shock incarceration if his prison term includes a sentence for, among other disqualifying 

offenses, a second degree felony. As discussed, Hayes’s prison term included a threeyear sentence for attempted engaging in a pattern of corrupt activity, a second degree 

felony. Given this, any argument that the trial court’s intensive program prison and shock 

incarceration findings were inadequate is frivolous. 

{¶ 12} In addition, we have performed our duty under Anders to conduct an 

independent review of the entire record. In doing so, we have thoroughly reviewed the 

Anders brief, the trial court docket, the various filings made in the trial court, the plea and 

sentencing transcripts, and the sentencing entries and orders. This review has not 
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revealed any potentially meritorious appellate issues. 

{¶ 13} Having found no non-frivolous issue for appellate review, counsel’s motion 

to withdraw is granted, and the judgment of the Montgomery County Court of Common 

Pleas is affirmed. 

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WELBAUM, P.J. and HALL, J., concur. 

Copies mailed to: 

Mathias H. Heck, Jr. 

Michael Scarpelli 

J. David Turner 

Clinton Hayes 

Hon. Timothy N. O’Connell