[Cite as State v. Midlam , 2021-Ohio-1608.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO Plaintiff-Appellee

v. COLE MIDLAM Defendant-Appellant : : : : : : : : : : Appellate Case No. 28960

Trial Court Case No. 2010-CR-1691 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 7th day of May, 2021.

. . . . . . . . . . . MATHIAS H. HECK, JR. by JAMIE J. RIZZO, Atty. Reg. No. 0099218, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, 5th F loor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee COLE MIDLAM, #A706-027, P.O. Box 69, London, Ohio 43140 Defendant-Appellant, Pro Se

. . . . . . . . . . . . . EPLEY, J.-2-

{¶ 1} Cole Midlam appeals from a judgment of the Montgomery County Co urt of Common Pleas, which denied his post-sentence motion for jail-ti me credit. For the following reasons, the trial cour t’s judgment will be affirmed. I. Facts and Procedural History {¶ 2} Between January and May 2010, Midlam committed aggravated robbe ries at five Ohio pharmacies: three in Montgomery County (January 22, M ay 20, May 25), one in Greene County (May 2), and one in Highland County (May 16). {¶ 3} On May 28, 2010, Greendale police officers in Dearborn County, Indiana, received a dispatch to be on the lookout for a vehicle that had been involved in several armed robberies of pharmacies in Montgomery County, Ohio. The dispatch further

indicated that there was an arrest warrant for Midlam related t o those robberies. The Greendale police officers observed and approached Midlam at a g as station. Officers located numerous pills, money, syringes, and other drug paraphe rnalia on Midlam’s person and in his vehicle, and he was arrested on drug possessi on charges. {¶ 4} Midlam remained in custody throughout the pendency of his cases in Ohio

and Indiana. {¶ 5} On June 11, 2010, while he was being held in Indiana, Midlam wa s indicted in Greene County on one count of aggravated robbery, a felony o f the first degree, with a firearm specification. State v. Midlam , Greene C.P. No. 2010-CR-305. On June 28, 2010, Midlam was admitted into the Dearborn County Jail Chemica l Addictions Program (JCAP). {¶ 6} On July 6, 2010, Midlam was indicted in Montgomery County on th ree counts-3- of aggravated robbery, felonies of the first degree. The trial court in this case subsequently set a $100,000 bond. Midlam remained incarcerated in Indiana. {¶ 7} Midlam states, and the Dearborn County online docket confirms, that he was sentenced in his Dearborn County case on March 1, 2011. See Indiana v. Midlam , Dearborn Case No. 15C01-1006-FB-000009. {¶ 8} On July 8, 2011, approximately a year after his indictment, Mid lam was transported from Indiana to the Montgomery County Jail, and he was served with the Montgomery County indictment. A month later, Midlam pled guilt y to the charges. At his sentencing on August 25, 2011, the trial court imposed ten years in prison on each count of aggravated robbery, to be served concurrently to each other and to Midlam’s sentence in Dearborn County. The court also ordered Midlam to pay restitution to CVS Pharmacy, extradition costs, and court costs. {¶ 9} The court filed its judgment entry on August 30, 2011. With re spect to jailtime credit, the entry stated: “The number of days for which th e defendant should receive jail time credit is indicated in the entry and warrant to trans port filed in this case.” The entry and warrant to transport, filed on August 25 (the day of the sentencing hearing), indicated that Midlam had been held in custody prior to sentenc ing for 50 days. {¶ 10} On December 6, 2011, Midlam pled guilty to aggravated robbery i n Greene County and was sentenced to a mandatory nine-year sentence, to be served concurrently with his Montgomery County and Dearborn County sentences. The Greene County court found that Midlam was entitled to 93 days of jail-time cr edit in that case. {¶ 11} On February 3, 2012, Midlam was convicted of aggravated robbery in Highland County and received a five-year sentence, to be served consecutively to his-4- sentences in his other cases. State v. Midlam , Highland C.P. No. 2010 CR 0131. The Montgomery County Sheriff’s Office returned Midlam to Indiana t o complete his Indiana sentence following his conviction in Highland County. {¶ 12} Midlam did not timely appeal his Montgomery County conviction, but in April 2013, he sought leave to file a delayed appeal, which we allowe d. Midlam challenged the length of his prison sentence and the court’s imposition of court costs. On review, we reversed the trial court’s order to pay court costs, but oth erwise affirmed Midlam’s

conviction. State v. Midlam , 2d Dist. Montgomery No. 25731, 2014-Ohio-1109. {¶ 13} On May 28, 2014, after he had completely served his Indiana sen tence, Midlam was transported to prison in Ohio to complete his Ohio s entences. {¶ 14} Approximately six years later, Midlam filed a motion for jail t ime credit in this case. He stated that he had received 1,056 days of jail time c redit – presumably, 1,006 days (the date of his sentencing hearing until May 27, 2014) pl us 50 additional days of jail-time credit previously granted. He argued, however, that he should have received 1,461 days, representing the period between his arrest on May 2 8, 2010 and May 27, 2014, when he was released on the Indiana charges. Midlam supp orted his motion with four attachments: (1) the probable cause affidavit for Midlam’s arrest in Indiana, based on his possession of drugs; (2) correspondence to Midlam from t he Ohio Bureau of Sentence Computation (BSC), stating Midlam’s dates of incarcera tion in Indiana and the sentence in Highland County; (3) a printout from the Ohio Depar tment of Rehabilitation and Correction (ODRC), showing Midlam’s sentences in Montgomery , Greene, and Highland Counties, the jail-time credit he received, and his an ticipated release date; and (4) correspondence from Dearborn County JCAP regarding Midlam’s participation in the-5- program. {¶ 15} On May 21, 2020, the trial court filed a Jail Time Credit Repor t, which concluded that Midlam was entitled to jail-time credit for May 27, 2010 to February 28, 2011, a total of 277 days, representing the date of Midlam’s ar rest until his sentencing in Dearborn County, Indiana. The report further concluded that Mi dlam was not entitled to jail-time credit from March 1, 2011 to August 25, 2011, because Midlam was serving his Indiana sentence. The report stated that Midlam had been sente nced in his Montgomery County case on August 25, 2011, and that jail-time credit had b een calculated in

accordance with State v. Heys , 2020-Ohio-692, 152 N.E.3d 539 (2d Dist.). {¶ 16} On June 19, 2020, Midlam asked the trial court to reconsider it s jail-time

credit calculation. Midlam stated that the BSC did not increas e his jail-time credit by the full 277 days indicated in the May 21, 2020 report. He surmise d that BSC no longer gave him credit for his pretrial confinement in the Montgomery Count y Jail prior to his sentencing. Midlam indicated that he was told by BSC that the trial court’s May 21, 2020 jail-time credit order superseded the prior order. Midlam aske d for a modified jail-time credit order to include both the 277 days and the original gran t of 50 days. (Midlam’s motion incorrectly indicated that he originally received a tota l of 1,065 days, rather than 1,056 days, of jail-time credit, and he correspondingly listed his original jail-time credit as 59 days, rather than 50 days.) {¶ 17} On June 24, 2020, the trial court denied Midlam’s motion and “u pheld” its May 21, 2020 decision granting 277 days of jail-time credit. O n October 9, 2020, Midlam asked the trial court for jail-time credit for the 50 days betw een July 6 and August 24, 2011 or to reissue its June 24 judgment entry denying additiona l jail-time credit. On-6- October 21, 2020, the trial court again upheld its May 21, 2020 decision granting 277 days of jail-time credit. {¶ 18} Midlam appeals from the trial court’s judgment.

II. Jail-Time Credit {¶ 19} Midlam’s sole assignment of error claims that the trial court e rred in failing to grant jail-time credit for the period of time between July 6 , 2011 and August 24, 2011.

A. Mootness {¶ 20} As an initial matter, it appears that Midlam has completely ser ved his Montgomery County sentence. Accordingly, we must address wheth er this appeal is

moot. {¶ 21} “The role of courts is to decide adversarial legal cases and to issue judgments that can be carried into effect.” Cyran v. Cyran , 152 Ohio St.3d 484, 2018- Ohio-24, 97 N.E.3d 487, ¶ 9, citing Fortner v. Thomas , 22 Ohio St.2d 13, 14, 257 N.E.2d 371 (1970); State v. Smith , 2d Dist. Montgomery No. 27981, 2019-Ohio-3592, ¶ 8. “Under the mootness doctrine, American courts will not decide c ases in which there is no longer an actual legal controversy between the parties.” Id ., citing In re A.G ., 139 Ohio St.3d 572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 37. {¶ 22} In general, once an offender completes his prison sentence, any alleged error regarding the calculation of jail-time credit becomes moo t, because no actual controversy remains to be litigated and there is no available r emedy to be granted. E.g.,

State v. Pack , 2d Dist. Montgomery No. 28460, 2020-Ohio-5211, ¶ 6, citing State v. Eleyet , 2018-Ohio-4879, 125 N.E.3d 380, ¶ 3 (2d Dist.); State v. Robinson , 2d Dist. Montgomery Nos. 26712, 26713, 2016-Ohio-3277, ¶ 4.-7- {¶ 23} According to the record before us, Midlam was admitted to priso n in Ohio on May 28, 2014, and he ultimately was given 1,283 days of cred it toward his ten-year sentence in this case. Even without the additional 50 days of jail-time credit that Midlam requests, he completed his sentence in this case in the fall of 2020. {¶ 24} We recognize that Midlam remains incarcerated, and the ODRC web site shows an expected release date of September 19, 2025. The reco rd reflects that Midlam’s release date for his nine-year mandatory sentence in G reene County was September 1, 2020, prior to the completion of his Montgomery Co unty sentence. It appears that he is currently serving his Highland County senten ce, which was run consecutively to his other sentences. Because additional jail- time credit in the Montgomery County case could affect the release date in Midlam’ s Highland County case, we will address the merits of Midlam’s argument on appeal

. B. Calculation of Jail-Time Credit {¶ 25} Midlam argues that he is entitled to jail-time credit for the 5 0 days that he was held in pretrial confinement at the Montgomery County Jail. He focuses on Heys , 2020-Ohio-692, 152 N.E.3d 539, the case cited in the trial cour t’s Jail Time Credit Report. The State responds that the trial court’s calculation of 277 da ys of jail-time credit was correct, because Midlam was serving his Indiana sentence during his pretrial confinement at the Montgomery County Jail. {¶ 26} Jail time credit is governed by R.C. 2967.191, which provides, in part: The department of rehabilitation and correction shall reduce th e prison term of a prisoner * * * by the total number of days that the prison er was confined for any reason arising out of the offense for which the prisone r was-8- 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, [and] confinement while awaiting tran sportation to the place where the prisoner is to serve the prisoner’s prison term * * *. R.C. 2967.191(A). The statute implements the equal protection right to credit for prior

incarceration. State v. Fugate , 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440; State v. Angi , 2d Dist. Greene No. 2011-CA-72, 2012-Ohio-3840, ¶ 7, citing State v. Coyle , 2d Dist. Montgomery No. 23450, 2010-Ohio-2130, ¶ 5. {¶ 27} “Although the [department of rehabilitation and correction] has a mandatory duty pursuant to R.C. 2967.191 to credit an inmate with jail ti me already served, it is the

trial court that makes the factual determination as to the numb er of days of confinement

that a defendant is entitled to have credited toward his senten ce.” State ex rel. Rankin

v. Ohio Adult Parole Auth ., 98 Ohio St.3d 476, 2003-Ohio-2061, 786 N.E.2d 1286, ¶ 7. {¶ 28} It is well settled that a “defendant may accrue jail time credi t in multiple cases at the same time, if he or she is held in pretrial confin ement in multiple cases simultaneously.” See, e.g., State v. Pack, 2d Dist. Montgomery No. 28458, 2020-Ohio5033, ¶ 38; State v. Breneman , 2d Dist. Champaign No. 2015-CA-16, 2016-Ohio-597, ¶ 26. “Where a later-sentencing court makes its sentence concu rrent with an earlier sentence, a defendant is entitled to jail-time credit in both c ases for any time that he was held in pretrial confinement on both cases simultaneously.” State v. Steinmetz , 2d Dist. Greene No. 2019-CA-40, 2020-Ohio-1145, ¶ 12. {¶ 29} “However, the Ohio Supreme Court has made clear that a defendan t is not entitled to jail-time credit while held on bond if, at the same time, the defendant is serving-9- a sentence on an unrelated case.” Pack at ¶ 39, citing State v. Cupp , 156 Ohio St.3d 207, 2018-Ohio-5211, 124 N.E.3d 811, ¶ 24. We noted in Pack that, even prior to Cupp , we consistently held that jail time credit is not appropriate w here the defendant was serving a sentence for a separate case. Id ., citing, e.g., State v. Russell , 2d Dist. Montgomery No. 26503, 2015-Ohio-3373; State v. Spears , 2d Dist. Montgomery No. 25645, 2014-Ohio-146, ¶ 2; Angi , 2d Dist. Greene No. 2011-CA-72, 2012-Ohio-3840;

State v. Rios , 2d Dist. Clark No. 10-CA-59, 2011-Ohio-4720. {¶ 30} In support of his request for additional jail-time credit, Midl am relies on Heys , 2020-Ohio-692, 152 N.E.3d 539. In that case, Heys was on com munity control sanctions in Logan County when he committed a new offense in Mo ntgomery County. Heys was arrested on January 4, 2019, and released by Montgomer y County law enforcement on January 6, 2019. However, he remained incarcera ted on a warrant from Logan County. On February 22, 2019, Heys was indicted in Montg omery County on the new charges and, on the same date, Logan County sentenced Heys to prison for violating his community control and granted him 183 days of jail-time cre dit. On March 21, 2019, Heys was arraigned on his Montgomery County charges, and the co urt set a bond. Fourteen days later, on April 3, 2019, Heys pled guilty to the Montgomery County charges and was sentenced to prison, to be served concurrently with his Logan County sentence. The Montgomery County court also gave Heys 183 days of jail-tim e credit, which the State challenged on appeal. {¶ 31} On review, we modified Heys’s jail-time credit to 17 days, repr esenting three days in January 2019 and the 14 days from Heys’s arraignment to his conviction. The bulk of our analysis focused on whether Heys was entitled to ja il-time credit for the entire-10- amount he received in Logan County, pursuant to Fugate , 117 Ohio St.3d 261, 2008- Ohio-856, 883 N.E.2d 440, and State v. Cole , 2d Dist. Montgomery No. 23327, 2009- Ohio-4580. We found those cases to be distinguishable, most no tably in that those cases involved concurrent sentences that began on the same date

. Heys at ¶ 17, quoting State v. Ways , 2d Dist. Montgomery No. 25214, 2013-Ohio-293, ¶ 22. We emphasized that jail-time credit does not include periods of ti me that a defendant has been incarcerated solely by reason of a sentence previously imp osed. Id . at ¶ 17. Accordingly, Heys was not entitled to jail-time credit for time served on his Logan County case prior to his arrest in his Montgomery County case. He als o was not entitled to jailtime credit for the time after January 6, 2019, when he was hel d solely on the Logan County charges. {¶ 32} Midlam argues that Heys supports his contention that he should be credited with the days he was held on bond at the Montgomery County Jail , even though he also was serving his Dearborn County sentence. He further claims th at the drugs he possessed in Indiana were stolen in Ohio and, thus, he was serv ing a sentence in a

related case when he was held in the Montgomery County Jail. {¶ 33} We disagree with Midlam’s contention that his Dearborn County s entence involved a related case. Midlam’s Montgomery County offenses c oncerned aggravated robberies on January 22, May 20, and May 25. In contrast, his Indiana charges arose from his possession of drugs in a different jurisdiction severa l days, at a minimum, after

the robberies. {¶ 34} We therefore conclude that Midlam’s circumstances are governed by Cupp, which expressly stated that “[a] defendant is not entitled to j ail-time credit while held on-11- bond if, at the same time, the defendant is serving a sentence on an unrelated case.” Cupp , 156 Ohio St.3d 207, 2018-Ohio-5211, 124 N.E.3d 811, at syllab us. Midlam was serving his sentence on unrelated Dearborn County charges when he was transported to the Montgomery County Jail, and he continued to serve his Dearb orn County sentence throughout the pendency of his Montgomery County case. Accordi ngly, pursuant to Cupp , the trial court correctly concluded that Midlam was not entit led to jail-time credit for the period of time between March 1, 2011 (when he was sentenced in Dearborn County) and his sentencing in this case. {¶ 35} Midlam’s assignment of error is overruled.

III. Conclusion {¶ 36} The trial court’s judgment will be affirmed.

. . . . . . . . . . . . .

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

Copies sent to: Mathias H. Heck, Jr. Jamie J. Rizzo Cole Midlam Hon. Mary E. Montgomery