[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 Appellee 

 
Case No. 9-20-45 

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WILLAMOWSKI, P.J. 

{¶1} Defendant-appellant Lexy R. L. Cunningham (“Cunningham”) appeals 

the judgment of the Marion County Court of Common Pleas, alleging that the trial 

court erred in the process of awarding her jail-time credit. For 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 of 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. However, on 

September 3, 2020, the police executed a search warrant of Cunningham’s 

apartment. Doc. 11. During this search, the police discovered a firearm in the 

apartment and pictures of Cunningham in possession of this firearm. Doc. 11. At 

the time of the search, Cunningham was still subject to a weapons 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 count of attempting 

to have weapons while under disability in violation of R.C. 2923.02(A), R.C. 

2923.13(A)(3), a felony of the fourth degree. Doc. 15. The trial court then accepted 

this plea of guilty. Doc. 17. 
Case No. 9-20-45 

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{¶4} On November 23, 2020, the trial court held a probation violation 

disposition for Case #19-CR-0307 and a sentencing hearing for Case #20-CR-0356. 

Tr. 1, 9. Doc. 17. At this hearing, the following exchange occurred 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 filed on September 16, 2017. Doc. 1. 

Before this indictment, Cunningham had apparently accrued 106 days of jail-time credit in Case #19-CR0307. Tr. 3. After this indictment, Cunningham was in jail for 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 Cunningham 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 

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unsuccessful, imposing no additional fine or sanction. Due to the 

credit for all jail time credit on the ’19 case [#19-CR-0307] the 

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 case 

[#20-CR-0356] was between September 17th 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 double 

jail time credit so she has zero days on * * * case [#20-CR-0356]. 

* * * 

[Defense]: Okay, Your Honor. That’s fine. 

Tr. 10-11. In Case #20-CR-0356, the trial court ordered Cunningham 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 error: 

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 subsequent 

case thereby violating her rights under the United States and Ohio 

State Constitutions. 
Case No. 9-20-45 

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While Cunningham states, in her brief, that she “believes that the trial court 

sentenced [her] * * * in accordance with Ohio law,” she also argues 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 covered 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 the 

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 awaiting trial, confinement for 

examination to determine the prisoner’s competence to stand trial 

or sanity, confinement while awaiting transportation to the place 

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 Correction, the trial court is 

to determine “the number of days of confinement that a defendant is entitled to have 

 

2

 At the sentencing hearing, defense counsel did not raise an objection 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] trial court’s failure to 

properly calculate a felony offender’s jail-time credit * * * and to include the amount of jail-time credit in 

the body of the offender’s sentencing judgment entry is plain error.” 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 

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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 simple on 

its face, in practice, it can be complicated when * * * the defendant is charged with 

multiple crimes committed at different times, or when the defendant 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 of 

imprisonment are served one after another. Jail-time credit 

applied to one prison term gives full credit that is due, because the 

credit reduces the entire length of the prison sentence. However, 

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 terms, 

applying credit to one term only would, in effect, negate the credit 

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 crimes. 
Case No. 9-20-45 

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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-time 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 applied 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 court 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. The 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 sentencing hearing on 

November 23, 2020. Doc. 17. 
Case No. 9-20-45 

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{¶10} Thus, there are two relevant periods of confinement in this situation: 

the 174 days Cunningham had served in jail before her sentencing hearing and the 

seventeen months she was to ordered to serve in prison after her sentencing hearing. 

Tr. 3, 10-11. The period of confinement before November 23, 2020 functioned as 

the sentence for Case #19-CR-0307 while the period of confinement 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 jail-time 

credit as time served for a probation or community control violation. 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-Ohio1184, ¶ 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 awarded 

some amount of jail time credit” in Case #20-CR-0356. Appellant’s Brief, 5. 

However, the trial court applied all of the jail-time credit that Cunningham had 

accrued by November 23, 2020 to the sentence in Case #19-CR-0307. 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 accrued only 174 
Case No. 9-20-45 

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days of jail-time credit. Tr. 3, 10-11. Thus, Cunningham received 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 was 

indicted in Case #20-CR-0356, these days were included in the 174 days of jail-time 

credit that were applied in Case #19-CR-0307. If these sixty-eight 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 period 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 credit 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 sentencing 

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 spent in jail beyond 

the date of her sentencing hearing. 

 
Case No. 9-20-45 

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Conclusion 

{¶15} Having reviewed the materials in the record, we conclude that 

Cunningham has not established that the trial court erred in applying 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 particulars assigned and 

argued, the judgment of the Marion County Court of Common Pleas is affirmed. 

Judgment Affirmed 

ZIMMERMAN and SHAW, J.J., concur. 

/hls