[Cite as State v. Smith, 2024-Ohio-2370.]

COURT OF APPEALS

HOLMES COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:

: Hon. Andrew J. King, P.J.

 Plaintiff-Appellee : Hon. Craig R. Baldwin, J.

: Hon. John W. Wise, J.

-vs- :

:

DARRELL SMITH : Case Nos. 23-CA-007

: 23-CA-008 

: 23-CA-009

:

 Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Case Nos. 22CR081, 

22CR008 & 22CR045

JUDGMENT: Affirmed

DATE OF JUDGMENT: June 20, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ROBERT K. HENDRIX DAVID M. HUNTER

164 East Jackson Street 244 West Main Street
Holmes County, Case Nos. 23-CA-007, 23-CA-008 & 23-CA-009 2

Millersburg, OH 44654 Loudonville, OH 44842

King, P.J.

{¶ 1} Defendant-Appellant Darrel Smith appeals three judgment entries of the 

Holmes County Court of Common Pleas, each issued on August 31, 2023. PlaintiffAppellee is the State of Ohio. We affirm the trial court.

FACTS AND PROCEDURAL HISTORY

{¶ 2} This matter involves three separate cases. The underlying facts of each 

matter are not necessary for our resolution of this appeal.

{¶ 3} In case number 2022CA008, the Holmes County Grand Jury returned an 

indictment on February 8, 2022, charging Smith with one count of failure to comply with 

the order or signal of a police officer, a felony of the third degree. Smith was arrested and 

jailed on this offense on February 10, 2022. He remained in jail until he posted bond on 

June 8, 2022.

{¶ 4} In case number 22CR45, on July 29, 2022, the Holmes County Grand Jury 

returned an indictment charging Smith with one count of kidnapping, a felony of the first 

degree, and three counts of felonious assault, felonies of the second degree.

{¶ 5} In case number 22CR081, on September 13, 2022, the Holmes County 

Grand Jury returned an indictment charging Smith with failure to appear, a felony of the 

fourth degree.

{¶ 6} On December 13, 2022, Smith was arrested on all three cases and 

remained in jail while they were pending.

{¶ 7} On July 29, 2023, Smith entered pleas of guilty to each charge with the 

exception of kidnapping which the state dismissed pursuant to plea negotiations.

{¶ 8} Smith appeared for sentencing on August 31, 2022. 
Holmes County, Case Nos. 23-CA-007, 23-CA-008 & 23-CA-009 3

{¶ 9} In case 22CA008, failure to comply, Smith was sentenced to 180 local 

incarceration. He had been held in jail on that case for 403 days and was given credit for 

that time in that case. The judgment entry in this matter indicates that since Smith's jailtime credit in that case exceeded his sentence, he had already served his sentence.

{¶ 10} In case number 22CR045, felonious assault, Smith was sentenced to an 

indefinite term of incarceration of 6 to 9 years. He was sentenced to 6 months for domestic 

violence and ordered to serve the sentences concurrently.

{¶ 11} In case number 22CR081, failure to appear, Smith was sentenced to 6 

months incarceration and ordered to serve this sentence concurrently with the sentences

in case number 22CR045.

{¶ 12} In cases 22CR045 and 22CR081, Smith had accrued 261 days of jail-time 

credit and was given 261 days credit for those cases.

{¶ 13} During sentencing, counsel for Smith argued that because Smith was 

ordered to serve the sentences in case numbers 22CR045 and 22CR081 concurrently, 

the 403 days he served in case number 22CA008 should be applied towards his 

sentences for cases 22CR045 and 22CR081. This request included the time Smith spent 

in jail before cases 22CR045 and 22CR081 existed. The trial court disagreed.

{¶ 14} Smith filed an appeal and the matter is now before this court for 

consideration. Smith raises one assignment of error as follows:

I

{¶ 15} "WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN 

REFUSING TO PROPERLY CALCULATE JAIL-TIME CREDIT IN VIOLATION OF BOTH 

DOUBLE JEOPARDY PROTECTIONS AND EQUAL PROTECTION OF THE LAW."
Holmes County, Case Nos. 23-CA-007, 23-CA-008 & 23-CA-009 4

{¶ 16} In his sole assignment of error, Smith argues that because he was 

sentenced on all three cases at the same time and ordered to serve his sentences 

concurrently, he should be credited 403 days jail-time credit rather than 261 days. We 

disagree. 

{¶ 17} Because this assignment of error involves the interpretation of a statute, 

which is a question of law, we review the trial court's decision de novo. Hurt v. Liberty 

Township, Delaware County, Ohio, 2017-Ohio-7820, ¶ 31 (5th Dist.)

{¶ 18} R.C. 2967.191(A) addresses jail-time credit and provides:

 The department of rehabilitation and correction shall reduce the 

prison term of a prisoner, as described in division (B) of this section, 

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, as determined by the sentencing court under 

division (B)(2)(g)(i)1 of section 2929.19 of the Revised Code, and 

confinement in a juvenile facility. The department of rehabilitation and 

correction also shall reduce the stated prison term of a prisoner or, if 

the prisoner is serving a term for which there is parole eligibility, the 

minimum and maximum term or the parole eligibility date of the 
Holmes County, Case Nos. 23-CA-007, 23-CA-008 & 23-CA-009 5

prisoner by the total number of days, if any, that the prisoner 

previously served in the custody of the department of rehabilitation 

and correction arising out of the offense for which the prisoner was 

convicted and sentenced.

{¶ 19} In support of his argument, Smith cites State v. Fugate, 2008-Ohio-856. In 

that matter, defendant Fugate was charged and convicted of theft and burglary while he 

was on community control for a prior conviction. Before sentencing Fugate on the new 

charges, the trial court revoked his community control and imposed a 12-month sentence 

for the community control violation. It applied 213 days of jail-time credit against that 

sentence. The trial court ordered Fugate to serve the sentence in the community control 

violation concurrent with the sentences for the burglary and theft offenses, but Fugate

received no jail-time credit for the burglary sentence and only 50 days jail-time credit for 

the theft sentence. Fugate appealed, arguing "he should have received jail-time credit of 

213 days toward each of his concurrent prison sentences." Fugate at ¶ 6. The 10th District 

Court of Appeals affirmed the trial court, and the Supreme Court "accepted the appeal to 

determine how to apply jail-time credit to concurrent prison terms." Id.

{¶ 20} The Court went on to hold "when concurrent prison terms are imposed, 

courts do not have the discretion to select only one term from those that are run 

concurrently against which to apply jail-time credit . . . if courts were permitted to apply 

jail-time credit to only one of the concurrent terms, the practical result would be, as in this 

case, to deny credit for time that an offender was confined while being held on pending 

charges." Id. The Court continued, "so long as an offender is held on a charge while 
Holmes County, Case Nos. 23-CA-007, 23-CA-008 & 23-CA-009 6

awaiting trial or sentencing, the offender is entitled to jail-time credit for that sentence; a 

court cannot choose one of several concurrent terms against which to apply the credit."

Id.

{¶ 21} This matter is distinguishable from Fugate. In this matter, at the time of 

sentencing, Smith had already served his sentence for failure to comply. Further, the trial 

court did not order Smith to serve the sentence for failure to comply in case 22CR008

concurrently with the sentences in 22CR0045 and 22CR0081. The judgment entry for 

case number 22CR008 indicates in relevant part:

The Court imposes. . .

A one hundred eighty (180) days [sic] term of incarceration at the 

Holmes County Jail. Given Defendant's jail time credit on this case 

already exceeds 180 days the Court's position is that Defendant has 

already served his sentence in this case.

. . . 

The Court orders the Defendant be granted four hundred three (403) 

days of jail time credit on case [sic] up to and including the date of 

sentencing and excluding conveyance time. Counsel for Defendant 

argues that Defendant's jail time credit in this case should count 

towards his sentence in Case Nos. 22CR045 and 22CR081. The 

Court finds that Defendant cannot receive credit toward those 

sentences for time spent in jail before those cases were indicted. 
Holmes County, Case Nos. 23-CA-007, 23-CA-008 & 23-CA-009 7

{¶ 22} This case is more factually similar to State v. Speakman, 2009-Ohio-1184 

(10th Dist.), appeal not allowed 2009-Ohio-3131. In that matter defendant Speakman was 

indicted on various felony charges in three separate cases. At the time of the indictments, 

the Speakman was on community control. Following the indictments, a motion was filed 

seeking a finding that Speakman had violated his community control. Id. ¶¶ 2-5.

{¶ 23} Following plea negotiations with the state, Speakman entered pleas of guilty 

to several felony charges in each case as well as to violating his community control. He 

was sentenced to an aggregate 12 years incarceration for the felony charges. On his 

revocation charge, however, he was sentenced to time served and the trial court made it 

clear that the sentence was not to be served concurrently with any of the felony sentences

in the other three cases. On appeal, Speakman argued his jail time credit for his 

community control revocation should have applied to his 12-year sentence on the felony 

sentences. However, given the foregoing facts, the 10th District found Fugate

inapplicable. Id. ¶¶ 13-14.

{¶ 24} So too here. Unlike the defendant in Fugate, Smith received jail time credit 

for the cases he was sent to prison for. Like the defendant in Speakman, he was not sent 

to prison for the case he argues he should receive credit for. Rather, his sentence in that 

matter was deemed served at sentencing. Further, Smith cites no authority that would 

lead us to a conclusion that he is entitled to transfer credit for his time served on case 

22CR008 to case numbers 22CR0045 and 22CR081 before the latter two cases were 

ever indicted. Accordingly, we find Fugate inapplicable to the facts of this case and 

overrule Smith's sole assignment of error.
Holmes County, Case Nos. 23-CA-007, 23-CA-008 & 23-CA-009 8

{¶ 25} The judgment of the Holmes County Court of Common Pleas is affirmed.

By King, P.J., 

Wise, J. and

Baldwin, J. concur.