[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 

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Appellate Case No. 28374 

Trial Court Case No. 2019-CR-78 

(Criminal Appeal from 

Common Pleas Court) 

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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. 0069384, Assistant 

Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, 

Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 

45422 

Attorney for Plaintiff-Appellant 

 

MICHAEL R. PENTECOST, Atty. Reg. No. 0036803, 117 South Main Street, Suite 400, 

Dayton, Ohio 45422 

 Attorney for Defendant-Appellee 

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DONOVAN, J. 
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{¶ 1} On June 20, 2019, this Court granted the State’s motion for leave to appeal 

the trial court’s decision awarding 183 days of jail-time credit to Alan L. Heys, Jr. For the 

following reasons, the jail-time credit award is modified to reflect jail time credit of 17 days. 

{¶ 2} Heys was indicted on February 22, 2019, as follows: Count 1, breaking 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 misdemeanor 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, 2019. 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 continued. 

{¶ 4} On April 3, 2019, Heys pled guilty to Count 1 and the remaining counts were 

dismissed. The trial court’s judgment entry of conviction states that Heys and the State 

waived a presentence investigation. The court sentenced Heys to 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 calculation. The State’s notice 

provided that it objected “to the jail time credit placed on the 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 toward his 

sentence in this case. The Defendant is serving a prison term for an 

unrelated offense from a different county. Even if given a concurrent prison 
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term in this case, which the State has no objection to, the Defendant 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 was 

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 trial court’s jail 

time credit calculation. Heys asserted that the State’s reliance 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 with 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 asserted: 

In its objection to the jail-time credit calculation here, the State cites 

Gearheart and indicates that Defendant “should not receive jail time credit 

for the time for which he has been serving his Logan County sentence.” 

He has not. The 183 days to which Defendant was given jail-time 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 
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and current Montgomery County case. Under Cole, the three days credit 

the State claims is due in the present Montgomery County case is 

subsumed into the 183 days credit from the Logan County case. This 183 

days is then applied to each of the concurrent sentences. To hold 

otherwise would deny Defendant credit to which he is entitled for the longer 

term and constitute a violation of the Equal Protection Clause. Fugate, 

supra. 

 Accordingly, Defendant submits that the State’s Objection to JailTime Credit Calculation must be overruled and that the Termination 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 long as 

two or more sentences are imposed concurrently, the jail-time credit 

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 which 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 previously 

imposed in Logan County Case No. 17 05 0160. 
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 A review of the online docket in the Logan County case confirms 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 concurrently 

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 facts: 

On December 20, 2017, Alan Heys was sentenced to community 

control sanctions in Logan County Common Pleas Court Case Number 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 unknown, a 

capias was issued for Heys’s arrest on November 9, 2018. 

Heys’s whereabouts were later discovered on January 4, 2019, when 

he was arrested by Butler Township Police for breaking and entering 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 County judge 

revoked Heys’s community control and, on February 22, 2019, sentenced 

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, Heys 
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was indicted by the Montgomery County Grand Jury on one count of 

breaking and entering, two counts of theft of checks, and one count 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 jail as a result 

of his Montgomery County case prior to being sentenced to prison 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 case.” 

{¶ 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 court’s jail-time credit calculation. 

{¶ 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 
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Court.” Heys asserts that Cole was properly decided and properly applied in this matter, 

and that to hold otherwise could violate the principles of stare 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 days 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 failed to 

demonstrate the “special justification” that is required to depart 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 sentenced on February 15, 

2012, following a guilty plea, to 12 months in prison for trafficking 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 sentence was also 

ordered to be served concurrently with the 12-month sentence Ways 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 incarcerated on the twelvemonth sentence * * * before the eighteen-month sentences were imposed.” 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 
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Corr., 10th Dist. Franklin No. 11AP-118, 2011-Ohio-4984, ¶ 13, on the “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 until the 

first sentence has been completed. Bellamy, citing Richards v. Eberlin, 7th 

Dist. No. 04BE-1, 2004-Ohio-2636. Accordingly, “[t]he fact that sentences 

run concurrently merely means that the prisoner is given the privilege of 

serving each day a portion of each sentence. However, if the sentences 

which are to run concurrently are different lengths, the prisoner 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 begun 

serving, the defendant must complete the first sentence before he can begin 

serving day one of the second sentence. By contrast, where a sentence is 
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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 revocation. 

The other sentence, a two-year sentence for Burglary, was imposed 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. The 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 
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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 court 

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 would have 

served the twelve-month sentence for Receiving Stolen Property, which 

would begin on the same day, and would have ended after the first year of 

his two-year sentence for Burglary. 

 The defendant in Fugate, having been unable to post bond, would, 
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as originally sentenced, have been incarcerated for 213 days longer 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 Protection Clause 

of the Fourteenth Amendment to the United States Constitution requires 

that the indigent defendant be treated no more severely than his 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 community 

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 having 

violated the terms of his community control sanction imposed in the other 

case. At a later date, the defendant in that case was sentenced in both 

cases at the same time. He was sentenced to one year in each case, to 

be served concurrently. The trial court allowed a jail-time credit of 143 

days against the one-year sentence for Receiving Stolen Property, 

apparently representing the total number of days he had been incarcerated 

on that charge before having been sentenced to community control 

sanctions, plus the number of days he had been incarcerated after having 

been arrested for Felonious Assault. The trial court only allowed a jail-time 
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credit of 83 against the one-year sentence for Attempted Felonious Assault, 

representing the time he had been incarcerated on that charge before 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 both sentences. 

Again, the reason for this somewhat counter-intuitive result lies in the 

disparate treatment that would otherwise be visited upon an indigent 

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 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 
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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 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 offense, even if that prior 

sentence is one with which the present sentence is ordered to be 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 previously imposed 

and begun does not violate Equal Protection. In the case before 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 his sentences 

for Trafficking in Heroin, and would complete that sentence eighteen 

months later, on September 20, 2013. He would not get credit against his 

eighteen-month sentences for the time he had previously served on his 

twelve-month sentence for Trafficking in Heroin, and neither should Ways. 

Ways did apparently spend three days in jail on the Trafficking charge 
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before he made bond, unlike his affluent counterpart, but he was allowed 

credit for those three days against both the twelve-month sentence and the 

eighteen month sentences, so that he will presumably be released on 

September 17, 2013, having been incarcerated for three days before 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 concurrent 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 already 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 different courts impose sentences at separate times, the 

sentences at best are only partly concurrent, and there is no requirement 

that courts arrange their cases in such a way as to maximize concurrency. 

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 
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cases must be applied to both cases when the sentences are imposed 

concurrently by the same court. It would be quite another to hold in the 

present case that confinement while serving non-concurrent jail time must 

be awarded as “jail time” to reduce a later-imposed felony sentence. 

{¶ 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 paramount 

in determining jail-time credit. This court has consistently held that “jailtime credit is appropriate only when the facts and circumstances 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 conviction; the latter is 

a drug-related conviction. Furthermore, the two cases were heard by 

different judges, and decided separately. Thus, time for which she was 

held exclusively on 2014-CR-00473 grounds is not credited against 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 
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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 Court of 

Ohio has recently reiterated this, stating, “an offender is only 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 erred in its 

calculation of jail-time credit. As noted above, Heys’s February 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 County sentence. We conclude 

that the trial court erred in crediting Heys with jail time from 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-reporting, which would 

ostensibly generate a revocation. We conclude that Heys was entitled to three days of 

jail time credit following his arrest in Montgomery County, plus the 14 days he was further 
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held on the Montgomery County case until sentencing, for a total 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 court 

incorrectly awarding Heys 183 days of jail time credit to reflect 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 write separately 

to express my conclusion, consistent with Judge Hall’s reasoning 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