[Cite as State v. Heys , 2020-Ohio-692.]

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

STATE OF OHIO Plaintiff-Appellant

v. ALAN L. HEYS, JR. Defendant-Appellee : : : : : : : : : : Appellate Case No. 28374

Trial Court Case No. 2019-CR-78 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 28th day of February, 2020.

. . . . . . . . . . . MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 00693 84, 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-Appellant MICHAEL R. PENTECOST, Atty. Reg. No. 0036803, 117 South Main St reet, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellee

. . . . . . . . . . . . . DONOVAN, J.-2- {¶ 1} On June 20, 2019, this Court granted the State’s motion for le ave to appeal the trial court’s decision awarding 183 days of jail-time credi t to Alan L. Heys, Jr. For the following reasons, the jail-time credit award is modified to re flect jail time credit of 17 days. {¶ 2} Heys was indicted on February 22, 2019, as follows: Count 1, br eaking and entering; Counts 2 and 3, receiving stolen property; and Count 4, resisting arrest. Counts 1-3 are felonies of the fifth degree, and Count 4 is a m isdemeanor of the second degree. {¶ 3} On March 13, 2019, the trial court issued a warrant for Heys’s removal from the Corrections Reception Center for arraignment on March 21, 2 019. Heys pled not guilty at his arraignment, and the trial court set his bond at $2,500.00. On March 22, 2019, a detainer entry and order was filed and bond was continu ed. {¶ 4} On April 3, 2019, Heys pled guilty to Count 1 and the remainin g counts were dismissed. The trial court’s judgment entry of conviction stat es that Heys and the State waived a presentence investigation. The court sentenced Heys t o six months in prison, to be served concurrently with “Logan County Case No. 17050160” and with jail time credit of 183 days. On the same day, the State filed a notice of objection to the inclusion of the time served in Logan County in the jail time credit calc ulation. The State’s notice provided that it objected “to the jail time credit placed on th e record at the Defendant’s sentencing in open court on April 3, 2019.” It further stated:

Pursuant to State v. Gearheart , 2d Dist. 2015-Ohio-5297, the Defendant should not receive 183 days of jail time credit towar d his sentence in this case. The Defendant is serving a prison term for an unrelated offense from a different county. Even if given a con current prison-3- term in this case, which the State has no objection to, the Def endant should not receive jail time credit for the time for which he has been serving his Logan County sentence. The Defendant was initially arrested for this offense on January 4, 2019. He remained incarcerated on this offense until January 6 , 2019[,] when he was released pursuant to the local 48 hour rule. He wa s subsequently incarcerated on Logan County’s revocation and then sentenced to his current prison term. Based on the precedent of Gearheart , the Defendant should therefore be given 3 days of jail time credit. {¶ 5} On April 7, 2019, Heys filed a memorandum in support of the tri al court’s jail time credit calculation. Heys asserted that the State’s relian ce upon Gearheart was misplaced and that the jail-time credit calculation of 183 days was correct. Heys asserted that jail-time credit was calculated in accordance wit h State v. Cole , 2d Dist. Montgomery No. 23327, 2009-Ohio-4580, which construed State v. Fugate , 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440. Heys further asserte d: In its objection to the jail-time credit calculation here, the State cites

Gearheart and indicates that Defendant “should not receive jail time cre dit for the time for which he has been serving his Logan County sen tence.” He has not. The 183 days to which Defendant was given jail-tim e credit represents the pre-sentencing jail-time credit received in his Logan County

case. Pursuant to Fugate and Cole , this credit must be applied to “each case of incarceration made concurrent”, i.e., to both the Logan County case-4- and current Montgomery County case. Under Cole , the three days credit the State claims is due in the present Montgomery County case i s subsumed into the 183 days credit from the Logan County case. This 183 days is then applied to each of the concurrent sentences. To h old otherwise would deny Defendant credit to which he is entitled f or the longer term and constitute a violation of the Equal Protection Clause. Fugate,

supra

. Accordingly, Defendant submits that the State’s Objection to J ailTime Credit Calculation must be overruled and that the Terminat ion Entry herein must reflect a jail-time credit of 183 days as announced by the Court on April 3, 2019. {¶ 6} On April 10, 2019, the court issued an Order Granting Jail-Time Credit. The

court determined as follows: * * * Both the State and Defendant appear to agree that “[s]o l ong as two or more sentences are imposed concurrently, the jail-time c redit applicable to each sentence applies to all sentences imposed.” [Citing Cole at ¶ 13.] Likewise, they appear to agree that jail-time credit does not include time served under a “* * * sentence previously imposed for a different offense, even if that prior sentence is one with whic h the present sentence is ordered to be served concurrently.” [Citing Gearheart at ¶ 20.] However, they disagree as to whether the 183 days of jail-time credit calculated in this case includes time served under a sentence p reviously imposed in Logan County Case No. 17 05 0160.-5- A review of the online docket in the Logan County case confirm s that on February 22, 2019, Defendant was sentenced to a twelve-month prison term, with 183 days of jail-time credit. Because the six-month term to

which Defendant will be sentenced in this case will be served c oncurrently to the twelve-month term in the Logan County case, the 183 days of jailtime credit applicable to the twelve-month term must be applied to this term. Accordingly, the Court GRANTS Defendant 183 days of jail-time credit. (Footnotes omitted.) {¶ 7} In its brief on appeal, the State sets forth the following fact s: On December 20, 2017, Alan Heys was sentenced to community control sanctions in Logan County Common Pleas Court Case Numbe r CR 17-05-169, following his plea to one count of theft. However, after he failed to report to his probation officer and his whereabouts became u nknown, a capias was issued for Heys’s arrest on November 9, 2018. Heys’s whereabouts were later discovered on January 4, 2019, wh en he was arrested by Butler Township Police for breaking and ente ring and was booked into the Montgomery County Jail. He was released by Butler Township Police on January 6, 2019, but remained in custody as a result of his outstanding capias from Logan County. * * * The Logan Count y judge revoked Heys’s community control and, on February 22, 2019, sen tenced him to twelve months in prison. * * * Heys was awarded 183 days of jail-time credit against his Logan County sentence. On the same day he was sentenced to prison in Logan County, Hey s-6- was indicted by the Montgomery County Grand Jury on one count o f breaking and entering, two counts of theft of checks, and one c ount of resisting arrest, all relating to the Butler Township incident. * * * A warrant on indictment was served on Heys at the Correctional Reception Center (where he was sent following his Logan County sentencing), and he was subsequently conveyed back to Montgomery County. * * * {¶ 8} The State asserts that, despite “spending only three days in j ail as a result of his Montgomery County case prior to being sentenced to priso n in Logan County, the trial court elected to award Heys 183 days of jail-time credit – the same number of days of jail-time credit that he was awarded in his Logan County cas e.” {¶ 9} The State asserts the following assignment of error:

THE TRIAL COURT ERRED IN AWARDING ALAN HEYS JAILTIME CREDIT FOR TIME HE SPENT IN THE LOGAN COUNTY JAIL ON

AN UNRELATED CASE. {¶ 10} The State asserts as follows:

* * * Cole misapplied Fugate and was wrongly decided. For that reason and in view of the foregoing law and argument, the State of Ohio respectfully requests that this Court reconsider its holding in Cole , apply the more appropriate application of Fugate that was articulated by the Sixth District in [ State v. Wyburn , 6th Dist. Lucas No. L-10-1292, 2011-Ohio5307], and reverse the trial cour t’s jail-time credit calculati on. {¶ 11} Heys responds that the State has “abandoned its reliance on Gearheart and now argues on appeal that Cole was wrongly decided and should be reconsidered by this-7- Court.” Heys asserts that Cole was properly decided and properly applied in this matter, and that to hold otherwise could violate the principles of star e decisis. Heys again asserts that the 3 days credit which the State claims is due to Heys is properly subsumed into the 183 days credit from the Logan County case, and 183 da ys is then applied to each of the concurrent sentences. Heys argues that “a majority of this Court” has upheld and applied Cole on multiple occasions. According to Heys, the State has faile d to demonstrate the “special justification” that is required to dep art from the enduring principles of stare decisis and overturn this Court’s long-held precedent. {¶ 12} We are persuaded by the rationale in State v. Ways , 2d Dist. Montgomery No. 25214, 2013-Ohio-293. Therein, Christopher Ways was senten ced on February 15, 2012, following a guilty plea, to 12 months in prison for traff icking in heroin in the vicinity of a school or a juvenile, in violation of R.C. 2925.03(A)(1). Id . at ¶ 2. Ways received jail-time credit of three days against his sentence. Id . at ¶ 3. On March 21, 2012, Ways was sentenced to 18 months each for having weapons while under disability and for carrying a concealed weapon, to be served concurrently. The se ntence was also ordered to be served concurrently with the 12-month sentence Wa ys was already serving for trafficking. Id. The trial court “allowed Ways a jail-time credit of three days against

the concurrent 18-month sentences.” Id . at ¶ 6. Ways sought additional jail time credit, arguing that he “should receive credit for the 36 days he was i ncarcerated on the twelvemonth sentence * * * before the eighteen-month sentences were i mposed.” Id . at ¶ 7. Ways relied upon Fugate and Cole . The trial court denied the request after a hearing, and Ways appealed. Id . at ¶ 7-8. {¶ 13} In Ways, this Court quoted the following from Bobo v. Dept. of Rehab. and-8- Corr. , 10th Dist. Franklin No. 11AP-118, 2011-Ohio-4984, ¶ 13, on th e “nature of

concurrent sentences.” “[T]he imposition of a concurrent sentence normally means that the sentence being imposed is to run concurrently with the undischarged portion of the previously imposed sentence.” (Emphasis sic.) State ex rel. Gray v. Karnes , 10th Dist. No. 10AP-789, 2010-Ohio-5364, ¶ 5, quoting State v. Bellamy ,181 Ohio App.3d 210, 2009-Ohio-888, quoting Bianco v.

Minor , (June 6, 2003), M.D.Pa. No. Civ.A 303CV0913. The definition of a

concurrent sentence is to be contrasted with the definition of a consecutive sentence, where the second sentence cannot begin to be served u ntil the first sentence has been completed. Bellamy , citing Richards v. Eberlin , 7th Dist. No. 04BE-1, 2004-Ohio-2636. Accordingly, “[t]he fact tha t sentences run concurrently merely means that the prisoner is given the pr ivilege of serving each day a portion of each sentence. However, if the s entences which are to run concurrently are different lengths, the prison er cannot be discharged until he has served the longest sentence.” Brinklow v. Riveland (Colo., 1989), 773 P.2d 517. Ways at ¶ 9.

{¶ 14} This Court determined as follows in Ways : * * * Where a sentence is imposed consecutively to a sentence that has already been imposed, and which the defendant has already b egun serving, the defendant must complete the first sentence before he can begin serving day one of the second sentence. By contrast, where a s entence is-9- imposed concurrently with a sentence that has already been imposed, and which the defendant has already begun serving, the defendant is given the comparative luxury of serving each day of his second sentence, beginning with the first day, concurrently with a day served on the first sentence. * * *

As in Bobo , the result may be that the first sentence expires before the second sentence expires, even though the first sentence is a longer

sentence.

Id. at ¶ 10-11. {¶ 15} This Court distinguished Fugate , 117 Ohio St.3d 261 , 2008-Ohio -856, 883

N.E.2d 440 , and Cole, 2d Dist. Montgomery No. 23327, 2009-Ohio-4580, as follows:

In State v. Fugate , two concurrent sentences were imposed at the same time. One sentence, a twelve-month sentence for Receiving Stolen Property, was imposed as the result of a community control revo cation. The other sentence, a two-year sentence for Burglary, was impos ed as the result of a conviction following a jury trial. The trial court allowed a 213- day jail-time credit against the twelve-month sentence, but did not allow any jail-time credit against the two-year sentence for Burglary. T he Supreme

Court of Ohio held: * * * [A]lthough concurrent and consecutive terms are to be treated differently when jail-time credit is applied, the overall objective is the same: to comply with the requirements of equal protection by reducing the total time that offenders spend in prison after sentencing by an amount equal to the-10- time that they were previously held. Thus, in order to satisfy this objective, 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. R.C. 2967.191 requires that jail-time credit be applied to all prison terms imposed for charges on which the offender has been held. 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. So long as an offender is held on a charge while awaiting trial or sentencing , the offender is entitled to jail-time credit for that sentence; a c ourt cannot choose one of several concurrent terms against which to apply the credit. [ Fugate ] at ¶ 11-12 (emphasis added). An affluent defendant, in the same situation as the defendant in Fugate , would have been incarcerated for exactly two years – the two- year prison term for Burglary. While serving that prison term, he w ould have served the twelve-month sentence for Receiving Stolen Property, which would begin on the same day, and would have ended after the fir st year of his two-year sentence for Burglary.

The defendant in Fugate , having been unable to post bond, would,-11- as originally sentenced, have been incarcerated for 213 days lo nger than his identical affluent counterpart, because he would also serve the two-year prison term for Burglary, but would have been incarcerated for 213 days before he began serving either prison term. The Equal Protecti on Clause

of the Fourteenth Amendment to the United States Constitution r equires that the indigent defendant be treated no more severely than hi s affluent counterpart.

In State v. Cole, * * * the situation was similar. The defendant in that case had been in pre-trial custody for some time on a charge of Receiving Stolen Property. After he was convicted, he was placed on comm unity control. While on community control, the defendant in Cole was charged with two counts of Felonious Assault, and [he] was incarcerated pending trial. On the same day, the defendant in that case pled guilty to the reduced charge of Attempted Felonious Assault, and admitted hav ing violated the terms of his community control sanction imposed in the other case. At a later date, the defendant in that case was sentence d in both cases at the same time. He was sentenced to one year in each c ase, to be served concurrently. The trial court allowed a jail-time cr edit of 143 days against the one-year sentence for Receiving Stolen Propert y, apparently representing the total number of days he had been in carcerated on that charge before having been sentenced to community contro l sanctions, plus the number of days he had been incarcerated aft er having been arrested for Felonious Assault. The trial court only allo wed a jail-time-12- credit of 83 against the one-year sentence for Attempted Feloni ous Assault, representing the time he had been incarcerated on that charge b efore the imposition of sentence in both cases. Relying upon State v. Fugate, * * * we reversed, holding that [Cole] was entitled to the full 143 days of jail-time credit against b oth sentences. Again, the reason for this somewhat counter-intuitive result li es in the disparate treatment that would otherwise be visited upon an ind igent defendant and his otherwise identical affluent counterpart. * * * This would violate Equal Protection.

The distinction between the Fugate and Cole cases and the case before us is that in those two cases, unlike the case before us , the concurrent sentences began on the same date. (Footnote omitted.) Ways at ¶ 13-18. {¶ 16} R.C. 2967.191(A) provides: The department of rehabilitation and correction shall reduce th e 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 rea son arising out of the offense for which the prisoner was convicted and sen tenced, including confinement in lieu of bail while awaiting trial, con finement for examination to determine the prisoner's competence to stand tri al or sanity, confinement while awaiting transportation to the place where th e prisoner is to serve the prisoner's prison term, as determined by the sente ncing court under division (B)(2)(g)(i)1 of section 2929.19 of the Revised Code, and-13- confinement in a juvenile facility. The department of rehabilit ation and correction also shall reduce the stated prison term of a prison er or, if the prisoner is serving a term for w hich there is parole eligibilit y, the minimum and maximum term or the parole eligibility date of the 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. {¶ 17} Significantly, “[t]his does not include time that the prisoner was incarcerated by reason of a sentence previously imposed for a different offe nse, even if that prior sentence is one with which the present sentence is ordered to b e served concurrently.” Ways at ¶ 20, citing Bobo , 10th Dist. Franklin No. 11AP-118, 2011-Ohio-4984. This

Court concluded as follows: Disallowing, for purposes of jail-time credit, periods of time that a prisoner has been incarcerated by reason of a sentence previous ly imposed and begun does not violate Equal Protection. In the case befor e us, Ways’s affluent counterpart would be treated no more leniently. He would begin serving the first day of his eighteen-month sentences for the weapons offenses on March 21, 2012, concurrently with the 37th day of h is sentences for Trafficking in Heroin, and would complete that sentence eig hteen months later, on September 20, 2013. He would not get credit a gainst his eighteen-month sentences for the time he had previously served on his twelve-month sentence for Trafficking in Heroin, and neither sh ould Ways. Ways did apparently spend three days in jail on the Trafficking charge-14- before he made bond, unlike his affluent counterpart, but he wa s allowed credit for those three days against both the twelve-month sente nce and the eighteen month sentences, so that he will presumably be release d on September 17, 2013, having been incarcerated for three days bef ore any of his concurrent sentences began.

The Fugate and Cole cases, upon which Ways relies, are inapposite. Because in both of those cases, the concurrent sentences began on the same day, there was no part of one concurrent sentence that had already been served before the second concurrent sentence was imposed. The issue of whether to apply a previously served part of a concurr ent sentence as a jail-time credit against the subsequently imposed sentence did not

arise in Fugate or Cole. Ways is not entitled to a jail-time credit against his eighteen -month sentences for that part of the twelve-month sentence that had a lready been served when those sentences were imposed. * * * Ways at ¶ 21-23.

{¶ 18} As emphasized by the Fifth District in State v. Marini , 5th Dist. Tuscarawas No. 09-CA-6, 2009-Ohio-4633, ¶ 23:

When differ ent courts impose sentences at separate times, the sentences at best are only partly concurrent, and there is no r equirement that courts arrange their cases in such a way as to maximize co ncurrency. State v. Carter , 2nd Dist. No. 1580, 2002-Ohio-6387. It is one thing to hold, such as the Supreme Court did in [ Fugate ] that jail time credit earned in two-15- cases must be applied to both cases when the sentences are impo sed concurrently by the same court. It would be quite another to h old in the present case that confinement while serving non-concurrent jail time must be awarded as “jail time” to reduce a later-imposed felony sent ence. {¶ 19} This limitation on Fugate is consistent with a recent decision from the

Eleventh District in State v. Corpening , 2019-Ohio-4833, 137 N.Ed.3d 116, ¶ 25-26 (11th Dist.), which determined as follows: Thus, the reason for which a defendant is incarcerated is param ount in determining jail-time credit. This court has consistently h eld that “jailtime credit is appropriate only when the facts and circumstance s giving rise to the incarceration are the result of the charge for which the offender is eventually sentenced.” State v. Struble , 11th Dist. Lake No. 2005-L-115, 2006-Ohio-3417, 2006 WL 1816704, ¶ 11. See also State v. Smith , 11th Dist. Geauga No. 2014-G-3185, 2014-Ohio-5076, 2014 WL 6139627, ¶ 16;

State v. Moore , 11th Dist. Ashtabula, 2016-Ohio-3510, 67 N.E.3d 68, ¶ 18. Here, Ms. Corpening’s cases are unrelated: the earlier pertains to a probation violation from the underlying identity fraud convicti on; the latter is a drug-related conviction. Furthermore, the two cases were hea rd by different judges, and decided separately. Thus, time for which she was held exclusively on 2014-CR-00473 grounds is not credited again st her

2018-CR-00058 sentence and vice versa. Moreover, Fugate is distinguishable from the facts before us. In Fugate , the defendant was held in custody on three different charges-16- simultaneously and was “therefore entitled to jail-time credit against each concurrent prison term.” Id ., at ¶ 18. Fugate applies jail-time credit toward all concurrent prison terms imposed for charges on which an

offender was held * * *.” (Emphasis added.) Id ., at ¶ 21. In other words, the only time that may be counted as jail-time credit toward a sentence is time held on grounds related to that same sentence. Unrelated jail time may not be counted towards unrelated sentences. The Supreme Co urt of Ohio has recently reiterated this, stating, “an offender is onl y entitled to credit for time spent incarcerated on the offense for which he was convicted.” State v. Cupp , 156 Ohio St.3d 207, 2018-Ohio-5211, 124 N.E.3d 811, ¶ 21. {¶ 20} Based upon the foregoing, we conclude that the trial court err ed in its calculation of jail-time credit. As noted above, Heys’s Februar y 22, 2019 Logan County disposition preceded his disposition in Montgomery County. The parties do not dispute that he was held for three days in Montgomery County following his arrest by Butler Township law enforcement. Bond was set on March 21, 2019, and the trial court sentenced Heys on April 3, 2019, to six months. On that date, Heys commenced that sentence concurrent with the forty-first day of his Logan Count y sentence. We conclude that the trial court erred in crediting Heys with jail time fro m his Logan County sentence toward his unrelated Montgomery County sentence. We also note that there was already a warrant out for Heys on his Logan County case for non-reporti ng, which would ostensibly generate a revocation. We conclude that Heys was en titled to three days of jail time credit following his arrest in Montgomery County, plu s the 14 days he was further-17- held on the Montgomery County case until sentencing, for a tota l of 17 days. {¶ 21} The State’s assignment of error is sustained. {¶ 22} Pursuant to R.C. 2953.08, we modify the judgment of the trial c ourt incorrectly awarding Heys 183 days of jail time credit to refle ct a jail time credit award of 17 days.

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

FROELICH, J., concurs. TUCKER, P.J., concurs: {¶ 23} I agree with the result reached by the majority opinion. I wri te separately to express my conclusion, consistent with Judge Hall’s reasonin g in his concurring opinion

in State v. Ways and Judge Welbaum’s dissenting opinion in State v. Shaw , 2d Dist. Greene Nos. 2017-CA-35, 2017-CA-36, 2018-Ohio-3816, that State v. Cole was incorrectly decided.

Copies sent to: Mathias H. Heck, Jr. Andrew T. French Michael R. Pentecost Hon. Steven K. Dankof