[Cite as State v. Cunningham , 2021-Ohio-1861.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY

STATE OF OHIO, CASE NO. 9-20-45 PLAINTIFF-APPELLEE,

v. LEXY CUNNINGHAM, O P I N I O N

DEFENDANT-APPELLANT.

Appeal from Marion County Common Pleas Court Trial Court No. 20-CR-356 Judgment Affirmed Date of Decision: June 1, 2021

APPEARANCES: W. Joseph Edwards for Appellant

Nathan Heiser for AppelleeCase No. 9-20-45

-2- WILLAMOWSKI, P.J. {¶1} Defendant-appellant Lexy R. L. Cunningham (“Cunningham”) appeal s the judgment of the Marion County Court of Common Pleas, allegi ng that the trial court erred in the process of awarding her jail-time credit. F or the reasons set forth below, the judgment of the trial court is affirmed. Facts and Procedural History {¶2} On April 2, 2020, Cunningham was placed under the supervision o f the Marion County Adult Probation Department as part of Case #19-CR -0307. PSI. This supervision was set to expire on October 2, 2022. PSI. H owever, on September 3, 2020, the police executed a search warrant of Cunn ingham’s apartment. Doc. 11. During this search, the police discovered a firearm in the apartment and pictures of Cunningham in possession of this fire arm. Doc. 11. At the time of the search, Cunningham was still subject to a weapo ns disability as part

of Case #19-CR-0307. Doc. 11. {¶3} On September 16, 2020, Cunningham was indicted on one count of having weapons while under disability in violation of R.C. 2923 .13(A)(3), a felony of the third degree. Doc. 1. This charge became the basis of Case #20-CR-0356. Doc. 2. On November 10, 2020, Cunningham pled guilty to one co unt of attempting to have weapons while under disability in violation of R.C. 292 3.02(A), R.C. 2923.13(A)(3), a felony of the fourth degree. Doc. 15. The tr ial court then accepted this plea of guilty. Doc. 17.Case No. 9-20-45

-3- {¶4} On November 23, 2020, the trial court held a probation violatio n disposition for Case #19-CR-0307 and a sentencing hearing for C ase #20-CR-0356. Tr. 1, 9. Doc. 17. At this hearing, the following exchange oc curred over the amount of jail-time credit that Cunningham had accrued: [Trial Court]: * * * [H]elp me out with jail time credit. [Defense]: There’s 174 days as of and including today on [Case #19-CR-0307]. [Trial Court]: 174? [Defense]: Yes. [Trial Court]: And does that mean that there are the same number on [Case #20-CR-0356] or the PSI report is 68— [Defense]: 68 days of the report— [Trial Court]: Those 68 days are part of the 174? [Defense]: Yes. [Trial Court]: Very good. Parties agree? [State]: Yes, Your Honor.

Tr. 3. 1 The following exchange then occurred: [Trial Court]: With regard to [Case #19-CR-0307], the Court is gonna find 180 days of jail time credit and terminate the case as

1 The indictment that formed the basis of Case #20-CR-0356 was f iled on September 16, 2017. Doc. 1. Before this indictment, Cunningham had apparently accrued 106 d ays of jail-time credit in Case #19-CR0307. Tr. 3. After this indictment, Cunningham was in jail fo r another sixty-eight days in between September 17, 2020 and November 23, 2020. PSI. Thus, she apparently had a total of 174 days of jail-time credit by the time of the sentencing hearing on November 23, 2020. Tr. 3 . Since we do not have the record for Case #19-CR-0307 before us, we do not know the timeframe in which Cu nningham received the other 106 days of jail-time credit in Case #19-CR-0307. However, the parties agreed on the total jail -time credit tabulation of 174 days. Tr. 3.Case No. 9-20-45

-4- unsuccessful, imposing no additi onal fine or san ction. Due to the credit for all jail time credit on the ’19 case [#19-CR-0307] t he Court is finding zero days of jail time credit apply on [Case # 20- CR-0356]. Counsel, have I neglected anything? [Prosecution]: No, Your Honor. [Trial Court]: Mr. Crawford? [Defense]: I guess you’re—you’re saying there’s no jail time credit on the ’20 case [#20-CR-0356]? [Trial Court]: So the time that she spent in jail on the ’20 c ase [#20-CR-0356] was between September 17 th to today. So those 68 days, she was on a holder on the ’19 case [#19-CR-0307]. So I’ ve given her jail time credit on the ’19 case and I’m giving her d ouble jail time credit so she has zero days on * * * case [#20-CR-035 6]. * * * [Defense]: Okay, Your Honor. That’s fine. Tr. 10-11. In Case #20-CR-0356, the trial court ordered Cunnin gham to serve a seventeen-month prison sentence. Doc. 17. Tr. 11. Assignment of Error {¶5} The appellant filed her notice of appeal on December 11, 2020. Doc. 21. On appeal, Cunningham raises the following assignment of e rror: Appellant believes the trial court erred in computing jail time credit when it gave defendant-appellant credit for 180 days towards probation violation rather than applying it to subseque nt case thereby violating her rights under the United States and O hio State Constitutions.Case No. 9-20-45

-5- While Cunningham states, in her brief, that she “believes that the trial court sentenced [her] * * * in accordance with Ohio law,” she also ar gues that “she should have been awarded some amount of jail time credit.” 2 Appellant’s Brief, 5. Legal Standard {¶6} “The practice of awarding jail time credit, although now covere d by state statute, has its roots in the Equal Protection Clauses of the Ohio and United

States Constitutions.” State v. Fugate , 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, ¶ 7. “The General Assembly provides for jail-time credit in R.C. 2967.191(A) for those sentenced to prison.” State v. Reed , 2020-Ohio-4255, --- N.E.3d ---, ¶ 14. This provision reads, in its relevant part, as follows: The department of rehabilitation and correction shall reduce th e prison term of a prisoner * * * by the total number of days tha t 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 awaiting trial, confinement f or examination to determine the prisoner’s competence to stand tri al or sanity, confinement while awaiting transportation to the pla ce where the prisoner is to serve the prisoner’s prison term, * * * and confinement in a juvenile facility. (Emphasis added.) R.C. 2967.191(A). While the wording of this provision is directed at the Ohio Department of Rehabilitation and Correctio n, the trial court is to determine “the number of days of confinement that a defendan t is entitled to have

2 At the sentencing hearing, defense counsel did not raise an ob jection over the issue of jail-time credit and even appeared to affirm the trial court’s determination on this matter. Tr. 10-11. The failure to raise an objection before the trial court waives all but plain error on appeal. However, “[a] t rial court’s failure to properly calculate a felony offender’s jail-time credit * * * a nd to include the amount of jail-time credit in the body of the offender’s sentencing judgment entry is plain e rror.” State v. Mills , 10th Dist. Franklin No. 09AP-198, 2009-Ohio-6273, ¶ 13. See State v. Curtis , 3d Dist. Allen No. 1-15-55, 2016-Ohio-6978, ¶ 84.Case No. 9-20-45

-6- credited toward his sentence.” State ex rel. Rankin v. Ohio Adult Parole Auth ., 98 Ohio St.3d 476, 2003-Ohio-2061, 786 N.E.2d 1286, ¶ 7. {¶7} “Although the principle of crediting time served seems fairly s imple on its face, in practice, it can be complicated when * * * the def endant is charged with multiple crimes committed at different times, or when the defen dant is incarcerated due to a probation violation.” State v. Chafin , 10th Dist. Franklin No. 06AP-1108, 2007-Ohio-1840, ¶ 9. In State v. Fugate , the Ohio Supreme Court held that

“defendants who are unable to afford bail must be credited for the time they are confined while awaiting trial.” Fugate at ¶ 7. When a defendant is sentenced to consecutive terms, the terms o f imprisonment are served one after another. Jail-time credit applied to one prison term gives full credit that is due, becau se the credit reduces the ent ire length of the prison sentence. Howev er, when a defendant is sentenced to concurrent terms, credit must be applied against all terms, because the sentences are served simultaneously. If an offender is sentenced to concurrent term s, applying credit to one term only would, in effect, negate the c redit for time that the offender has been held. Fugate at ¶ 22. “The rule of Fugate , that [jail-time] * * * credit is to be applied to all terms of incarceration, is limited to concurrent sentences. ” State v. Tibbs , 12th Dist. Butler No. CA2019-02-027, 2019-Ohio-4721, ¶ 12, citing Fugate at ¶ 12. Further, courts have recognized that Fugate is not applicable when the trial court essentially sentences the defendant to ‘time served ’ for a community control violation but does not run the community control violation concurrent with the sentence for the new crim es.Case No. 9-20-45

-7- State v. Chasteen , 12th Dist. Butler No. CA2013-11-204, 2014-Ohio-3780, ¶ 15, citing State v. Maddox , 8th Dist. Cuyahoga No. 99120, 2013-Ohio-3140, ¶ 49 (applying the reasoning relied upon in Chasteen but to the context of a probation violation); Fugate at ¶ 12. Finally, “[i]t is appellant’s duty to show an error in the jail-time credit calculation * * *.” State v. Reeves , 10th Dist. Franklin No. 09AP493, 2010-Ohio-4018, ¶ 33. Legal Analysis {¶8} In this situation, Cunningham had a total of 174 days of jail-t ime credit at the time that she was sentenced. Tr. 3. At her sentencing hearing, the trial court effectively ordered a 180 day sentence for Case #19-CR-0307 and a seventeen month sentence for Case #20-CR-0356. The trial court then appl ied the entirety of Cunningham’s accrued jail-time credit to the sentence for Case #19-CR-0307; zeroed out the 180 day sentence for this case; and “terminated the case as unsuccessful, imposing no additional fine or sanction.” Tr. 10 -11. {¶9} By applying the jail-time credit in this manner, the trial cour t essentially treated Cunningham as though she had served her prison sentence for Case #19-CR0307 by the time of her sentencing hearing on November 23, 2020

. State v.

Dobbins , 12th Dist. Butler No. CA2019-04-061, 2020-Ohio-726, ¶ 17. Th e trial court then ordered a seventeen-month prison sentence for Case # 20-CR-0356 that was to be served in the seventeen months following her sentenci ng hearing on November 23, 2020. Doc. 17.Case No. 9-20-45

-8- {¶10} Thus, there are two relevant periods of confinement in this sit uation: the 174 days Cunningham had served in jail before her sentencin g hearing and the seventeen months she was to ordered to serve in prison after he r sentencing hearing. Tr. 3, 10-11. The period of confinement before November 23, 20 20 functioned as the sentence for Case #19-CR-0307 while the period of confineme nt to come after November 23, 2020 was to be the sentence for Case #20-CR-0356. In other words, these two periods of confinement are not concurrent sentences. See Fugate , supra , at ¶ 22; Tibbs, supra , at ¶ 12. {¶11} Other appellate districts have upheld this method of applying j ail-time credit as time served for a probation or community control viol ation. State v.

Williams , 8th Dist. Cuyahoga No. 104155, 2016-Ohio-8049, ¶ 19; Maddox , supra , at ¶ 49; State v. Allen , 2020-Ohio-5155, 162 N.E.3d 125, ¶ 45 (10th Dist.); State v. Speakman , 10th Dist. Franklin Nos. 08AP-456, 08AP-457, 08AP-458, 2009-O hio1184, ¶ 12; Dobbins at ¶ 22; State v. Wilson , 12th Dist. Butler No. CA2015-03-058, 2015-Ohio-4231, ¶ 18-20. {¶12} In her brief, Cunningham argues “that she should have been awar ded some amount of jail time credit” in Case #20-CR-0356. Appellan t’s Brief, 5. However, the trial court applied all of the jail-time credit th at Cunningham had accrued by November 23, 2020 to the sentence in Case #19-CR-030 7. Tr. 3, 10-11. In fact, by zeroing out her sentence for Case #19-CR-0307, the trial court gave Cunningham 180 days of jail-time credit, even though she had ac crued only 174Case No. 9-20-45

-9- days of jail-time credit. Tr. 3, 10-11. Thus, Cunningham rece ived the benefit of six additional days of jail-time credit in this situation. {¶13} While Cunningham had spent sixty-eight days in jail after she w as indicted in Case #20-CR-0356, these days were included in the 1 74 days of jail-time credit that were applied in Case #19-CR-0307. If these sixty-e ight days were applied to Cunningham’s seventeen month prison sentence in Case #20-CR-0356, the trial court would have given her jail-time credit for the p eriod in between September 17, 2020 and November 23, 2020 two times. State v. Lemaster , 4th Dist. Pickaway No. 01CA10, 2001 WL 1674108, *2 (Dec. 26, 2001). {¶14} Further, while none of the jail-time credit that Cunningham had

accrued before her sentencing hearing was applied to the sentence imposed in Case #20-CR-0356, the trial court did order that any jail-time credi t that Cunningham

accrued after the date of sentencing be applied to her sentence in Case #20- CR0356. Doc. 17. It is further ordered that the defendant be given credit for 0 days of local jail that she was confined through the date of sentenc ing for any reason arising out of this offense, plus any additional days the defendant is confined between the date of sentencing and the date committed to the Ohio Reformatory for Women

. (Emphasis added.) Doc. 17. Thus, the trial court ensured that Cunningham would receive jail-time credit in Case #20-CR-0356 for any days she s pent in jail beyond the date of her sentencing hearing.Case No. 9-20-45

-10- Conclusion {¶15} Having reviewed the materials in the record, we conclude that Cunningham has not established that the trial court erred in ap plying Cunningham’s jail-time credit in these cases. As such, her sole assignment of error is overruled. Having found no error prejudicial to the appellant in the parti culars assigned and argued, the judgment of the Marion County Court of Common Pleas is affirmed. Judgment Affirmed ZIMMERMAN and SHAW, J.J., concur.

/hls