[Cite as State v. Ochoa, 2023-Ohio-978.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

HANCOCK COUNTY

STATE OF OHIO,

 PLAINTIFF-APPELLEE, CASE NO. 5-22-19

 v.

RODOLFO S. OCHOA, O P I N I O N

 DEFENDANT-APPELLANT.

STATE OF OHIO,

 PLAINTIFF-APPELLEE, CASE NO. 5-22-20

 v.

RODOLFO S. OCHOA, O P I N I O N

 DEFENDANT-APPELLANT.

STATE OF OHIO,

 PLAINTIFF-APPELLEE, CASE NO. 5-22-22

 v.

RODOLFO S. OCHOA, O P I N I O N

 DEFENDANT-APPELLANT.
Case No. 5-22-19, 5-22-20 and 5-22-22

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Appeals from Hancock County Common Pleas Court

Trial Court Nos. 2020-CR-288, 2021-CR-440, 2017-CR-112

Judgments Affirmed

Date of Decision: March 27, 2023

APPEARANCES:

W. Alex Smith for Appellant

Phillip A. Riegle for Appellee

WILLAMOWSKI, J. 

{¶1} Defendant-appellant Rodolfo Ochoa (“Ochoa”) brings this appeal from 

the judgments of the Court of Common Pleas of Hancock County revoking and 

terminating community control and imposing prison terms in two other cases. On 

appeal, Ochoa argues that the trial court improperly allocated jail credit in violation 

of R.C. 2929.41(A). For the reasons set forth below, the judgments are affirmed.

Appellate Case Number 5-22-19

{¶2} On October 6, 2020, the Hancock County Grand Jury indicted Ochoa 

on two counts of possession of a controlled substance, both felonies of the fifth 
Case No. 5-22-19, 5-22-20 and 5-22-22

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degree. ADoc. 11. Ochoa entered pleas of guilty to both counts on July 8, 2021. 

Doc. 32. The trial court accepted the pleas and found Ochoa to be guilty. ADoc. 

34. A sentencing hearing was scheduled for October 21, 2021, but Ochoa failed to 

appear for the hearing. ADoc. 34 and 37. A bench warrant was issued on November 

8, 2021, and Ochoa was taken into custody on January 13, 2022. ADoc. 41. On 

July 21, 2022, the trial court held a sentencing hearing. ADoc. 55. The trial court 

imposed a prison term of ten months on each count and ordered them to be served 

concurrently to each other. ADoc. 55. The sentence was also ordered to be served 

concurrently to a 17 month prison sentence imposed in appellate case number 05-

22-20, for an aggregate prison term of 17 months. ADoc. 55. The trial court granted 

Ochoa 12 days of jail time credit, excluding conveyance time. ADoc. 55. Ochoa 

appealed from this judgment. ADoc. 60.

Appellate Case Number 5-22-20

{¶3} On November 2, 2021, the Hancock County Grand Jury indicted Ochoa 

on one count of failure to appear, a felony of the fourth degree. BDoc. 1.2 Ochoa 

entered a plea of guilty to the indictment on May 9, 2022. BDoc. 16. The trial court 

accepted the guilty plea and found Ochoa to be guilty. BDoc. 19. On July 21, 2022, 

a sentencing hearing was held and Ochoa was sentenced to a prison term of 17 

1 As there are three different records in this case, the docket associated with appellate case number 5-22-19 

will be identified as “ADoc.”

2 The docket associated with appellate case number 5-22-20 will be identified as “BDoc.”
Case No. 5-22-19, 5-22-20 and 5-22-22

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months to be served concurrently to the sentence imposed in appellate case number 

5-22-19. BDoc. 20. Ochoa appealed from this judgment. BDoc. 24.

Appellate Case Number 5-22-22

{¶4} On March 14, 2017, the Hancock County Grand Jury indicted Ochoa 

on one count of failure to appear, a felony of the fourth degree. CDoc. 1.3 Ochoa 

entered a plea of guilty to the indictment on October 2, 2017. CDoc. 23. The trial 

court accepted the guilty plea and found Ochoa to be guilty. CDoc. 26. On 

December 18, 2017, a sentencing hearing was held and Ochoa was sentenced to five 

years of community control with a reserved prison term of 17 months. CDoc. 28. 

{¶5} On October 15, 2021, the trial court entered a judgment entry finding 

that Ochoa had absconded from the jurisdiction of the trial court and issued a bench 

warrant. CDoc. 93 and 97. Ochoa was subsequently arrested on January 13, 2022. 

CDoc. 97. A violation hearing was held on July 21, 2022, and the trial court 

determined that Ochoa had violated the terms of his community control. CDoc. 

103. The trial court then revoked Ochoa’s community control and imposed a prison 

term of fifteen months. CDoc. 103. The trial court then made the following finding.

Furthermore, the Defendant was awarded four hundred and fifty 

(450) days credit for time previously served and therefore, this 

sentence is fulfilled.

3 The docket associated with appellate case number 5-22-22 will be identified as “CDoc.”
Case No. 5-22-19, 5-22-20 and 5-22-22

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CDoc. 103. The trial court then terminated Ochoa from his community control 

supervision as unsuccessful. CDoc. 103. Ochoa appealed from this judgment. 

CDoc. 108.

{¶6} On the appeal from all three cases, Ochoa raises one assignment of 

error.

The trial court erred by improperly allocating jail credit, in 

violation of R.C. 2929.41(A).

Ochoa argues that the trial court should have applied the total jail time credit of 462 

days to all three cases instead of 450 days credit only being applied to appellate case 

number 5-22-22 and the remaining 12 being applied to appellate cases numbered 5-

22-19 and 5-22-20. R.C. 2967.191(A) provides for jail-time credit in situations 

where a defendant has been sentenced to prison. The statute mandates that the 

prison term of a defendant is to be reduced “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”. R.C. 2967.191(A). The “trial court is to 

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

credited toward his sentence.’” State v. Cunningham, 3d Dist. Marion No. 9-20-45, 

2021-Ohio-1861, ¶ 6 quoting State ex rel. Rankin v. Ohio Adult Parole Auth., 98 

Ohio St.3d 476, 2003-Ohio-2061, 786 N.E.2d 1286, ¶ 7. 

{¶7} This Court has previously addressed how jail time credit is applied to 

multiple sentences in Cunningham, supra. The defendant in Cunningham was 
Case No. 5-22-19, 5-22-20 and 5-22-22

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sentenced to a probation violation and a new conviction. The trial court applied all 

of the jail time credit to the violation, terminating the case as unsuccessful, and, 

having used all of the jail time credit, then imposed a 17 month prison term on the 

new conviction. Id. at 4. On appeal, the defendant claimed that the trial court erred 

in applying all of the jail time credit towards the probation violation. This Court 

addressed the general method to be used when calculating jail time credit.

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.

State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, ¶ 22. 

However, this rule is limited to cases in which sentences are ordered to be served 

concurrently, not when a defendant is essentially sentenced to time served for a 

community control violation because the community control violation sentence is 

not served simultaneously with the sentence for the new offense. Cunningham at ¶ 

7 quoting State v. Chasteen, 12th Dist. Butler No. CA2013-11-204, 2014-Ohio-3780. 

This Court determined that by applying the jail time credit first to the violation of 

community control, the trial court was sentencing the defendant to time served on 

the violation and then imposing a new sentence on the new conviction. Id. at ¶ 9. 
Case No. 5-22-19, 5-22-20 and 5-22-22

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This Court then affirmed the judgment determining that the trial court did not abuse 

its discretion in sentencing the defendant in this manner. Id. at ¶ 15.

{¶8} In this appeal, Ochoa was sentenced for the community control 

violation and the two new convictions on July 21, 2022. At the sentencing hearing, 

the trial court indicated that Ochoa had accumulated a total of 462 days of jail time 

credit between the pending cases (189 days since arrested on the bench warrant) and 

the prior time from the 2017 case. Tr. 5. Everyone was in agreement as to that 

number. Tr. 6. The trial court then imposed the following sentence.

The Court: What I’m going to do is this: In the 2017 case, which 

is the – the community control violation, I agree that for purposes 

of that case, I’m going to find that you are no longer amenable to 

community control. That case needs to be closed. Ultimately, I 

have reserved 17 months on that. You have – between all of these 

cases, you have – you have done over 460 days, 462 days. So what 

I’m going to do on that case is I’m going to order that you serve 

15 months in an institution under the control of the Department. 

I’m going to – which is, in the way the Department calculates, 

that’s 15 months of 30 days, which means 450 days. So I’m going 

to order that you serve 15 months. I’m going to credit 450 days.

Mr. Ochoa: Okay.

The Court: Which essentially, although it’s going to say a prison 

sentence, the credit wipes that out. 

Mr. Ochoa: Okay.

Tr. 38. In appellate case number 5-22-19, the trial court imposed 10 month prison 

terms on each count and ordered them to be served concurrently. Tr. 40. The trial 

court then imposed a 17 month prison term in appellate case number 5-22-20 and 
Case No. 5-22-19, 5-22-20 and 5-22-22

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ordered that be served concurrently with the sentence imposed in 5-22-19. Tr. 41. 

The trial court then credited Ochoa with the remaining 12 days of jail time credit 

along with any additional time accrued while awaiting transport. Tr. 41-42.

{¶9} As discussed above, this Court has previously held that a trial court does 

not err when it applies jail time credit in this manner. Of the 462 days served before 

the hearing, 450 were used as the sentence in the community control violation, thus 

terminating that sentence. The remainder was applied to the new and separate 

sentences being served after the hearing. “In other words, these two periods of 

confinement are not concurrent sentences” because they are not served during the 

same time period. Cunningham, supra at ¶ 10 citing Fugate. For this reason, the 

assignment of error is overruled.

{¶10} Having found no error prejudicial to the appellant in the particulars 

assigned and argued, the judgments of the Court of Common Pleas of Hancock 

County are affirmed.

Judgments Affirmed

WALDICK and ZIMMERMAN, J.J., concur.

/hls