[Cite as State v. Murton, 2017-Ohio-7949.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


STATE OF OHIO,                                  :         OPINION

                 Plaintiff-Appellee,            :
                                                          CASE NO. 2016-G-0098
        - vs -                                  :

RYAN A. MURTON,                                 :

                 Defendant-Appellant.           :


Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 2015 CR
000111.

Judgment: Affirmed in part, reversed in part, and remanded.


James R. Flaiz, Geauga County Prosecutor, and Christopher J. Joyce, Assistant
Prosecutor, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For
Plaintiff-Appellee).

Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).



COLLEEN MARY O’TOOLE, J.

        {¶1}     Ryan A. Murton appeals from the judgment of the Geauga County Court of

Common Pleas, sentencing him to a total term of ten years imprisonment for numerous

crimes of theft and burglary. Mr. Murton contends the trial court failed to give him the

appropriate amount of jail time credit. He also contends the trial court improperly gave

him consecutive sentences. We affirm his sentences, but reverse and remand for the

trial court to enter the proper amount jail time credit due.
       {¶2}   Commencing in December 2012, a series of thefts from cars, houses, and

garages in Geauga County commenced. They continued until the beginning of 2015.

Jewelry, cash, credit cards, electronics, liquor, golf clubs – anything of value – was

taken. Eventually, it transpired these thefts were done by a juvenile gang organized by

Mr. Murton.    R.S. was Mr. Murton’s girlfriend.       She told police Mr. Murton would

sometimes melt down the jewelry, and take the gold to pawn shops, or that he would go

to Cleveland and exchange items for drugs (Mr. Murton and R.S. are heroin addicts).

She told police he would bury items he could not easily convert to cash or drugs in his

family’s backyard. R.S. estimated Mr. Murton had broken into approximately 300 cars

during their relationship.    Another youth told police Mr. Murton had broken into

approximately 100 homes in Chester Township alone.

       {¶3}   June 2, 2015, the Geauga County Grand Jury returned a 15 count

indictment against Mr. Murton, including one count of engaging in a pattern of corrupt

activity, in violation of R.C. 2923.32(A)(1); four counts of burglary, in violation of R.C.

2911.12(A)(3); four counts of breaking and entering, in violation of R.C. 2911.13(B); four

counts of theft, in violation of R.C. 2913.02(A)(1); one count of theft of drugs, in violation

of R.C. 2913.02(A)(1)(B)(6); and one count of tampering with evidence, in violation of

R.C. 2921.12(A)(1). The matter was designated Case No. 15 C 0111. June 4, 2015,

Mr. Murton entered a written plea of not guilty.

       {¶4}   At the time of his indictment, Mr. Murton had another case pending in the

trial court, for trafficking in heroin, and attempted trafficking in heroin, this being Case

No. 15 C 0032.      He was represented by the same defense counsel in each case.

Further, at the time he was indicted in Case No. 15 C 0032, Mr. Murton was on




                                              2
probation in two cases – 2015CRB0098 and 2015CRB00100 – from the Chardon

Municipal Court. That court revoked his probation in Case No. CRB0098 on or about

May 22, 2015, and denied bond, thus placing Mr. Murton in the county jail.

        {¶5}   August 27, 2015, the trial court sentenced Mr. Murton in Case No. 15 C

0032 to three years community control, including 180 days in jail, and up to six months

in NEOCAP. That same day, the Chardon Municipal Court sentenced Mr. Murton to

120 days in jail in Case No. 2015CRB0098, to run consecutive to the jail time imposed

by the trial court in Case No. 15 C 0032. Sixty days were suspended, and credit was

applied from NEOCAP. Also on August 27, 2015, the Chardon Municipal Court gave

Mr. Murton 105 days jail time credit in Case No. 2015CRB 00100, and suspended five

days.

        {¶6}   Evidently, Mr. Murton spent some further time in jail, and then entered

NEOCAP, which he successfully completed. He remained under community control

sanctions.     Apparently in April 2016, he was found to have violated his community

control sanctions, due to testing positive for drugs, and seeing his girlfriend R.S. (the

trial court had imposed a no contact order). Hearing was held before the trial court April

25, 2016. In relevant part, Mr. Murton pleaded guilty to violating his community control

sanctions in Case No. 15 C 0032.        The trial court stayed sentencing on this until

sentencing in Case No. 15 C 0111. Mr. Murton also pleaded guilty to ten of the 15

counts in that case. The trial court revoked his bond, and returned him to jail pending

sentencing.




                                            3
      {¶7}   Further hearing was held in Case No. 15 C 0111 July 19, 2016. Defense

counsel explained Mr. Murton had been accepted into a rehabilitation program at the

Salvation Army facility in Akron, Ohio. The state and defense counsel indicated they

would jointly recommend that Mr. Murton receive community control sanctions if he

completed the program. The trial court granted Mr. Murton a personal recognizance

bond. Evidently he spent the evening with his family, who took him to the Salvation

Army the next day.

      {¶8}   September 2, 2016, Mr. Murton’s probation officer, Jeremy Graham,

received a telephone call that he had been kicked out of the Salvation Army program.

This was confirmed by a fax September 6, 2016. Mr. Murton telephoned Mr. Graham

September 9, 2016. Mr. Graham told him to surrender to the Geauga County Sheriff.

Mr. Murton’s personal recognizance bond was revoked, and a warrant issued for his

arrest. He did not turn himself in until September 26, 2016.

      {¶9}   Sentencing hearing went forward September 29, 2016. Mr. Murton had

pleaded guilty to four counts of burglary.      The trial court sentenced him to four

consecutive terms of 18 months for these. Mr. Murton had pleaded guilty to two counts

of breaking and entering. The trial court sentenced him to two consecutive terms of 12

months for these, to run consecutive to his burglary sentences. Mr. Murton had pleaded

guilty to two counts of theft. The trial court sentenced him to two consecutive terms of

12 months for these, to run concurrent to each other and to his sentences for burglary

and breaking and entering. Mr. Murton had pleaded guilty to tampering with evidence.

The trial court sentenced him to 24 months for this, to run consecutive to his other

sentences. Mr. Murton had pleaded guilty to one count of theft of drugs. The trial court




                                            4
sentenced him to 11 months for this, to run concurrent to his other sentences. The

sentences were memorialized in a judgment entry filed October 14, 2016. October 28,

2016, the trial court filed a nunc pro tunc judgment entry.            The trial court further

sentenced Mr. Murton for his community control violations in Case No. 15 C 0032 at the

same hearing, the sentence to run concurrent with that in Case No, 15 C 0111.

       {¶10} Mr. Murton noticed appeal November 14, 2016, assigning two errors. The

first reads: “The trial court erred, as a matter of law, by failing to give appellant credit for

jail time served during the pendency of this matter.”

       {¶11} At the sentencing hearing, the trial court stated Mr. Murton was due 230

days of jail time credit, based on the calculation in the PSI report. However, in both its

judgment entry of conviction, and the subsequent nunc pro tunc judgment entry, the trial

court gave him no jail time credit. Mr. Murton asserts he is entitled to the 230 days.

The state counters that the PSI report is incorrect, and that some of the 230 days set

forth in it are really attributable to Case No. 15 C 0032. In particular, the state asserts

that much of the jail time credit calculated in the PSI report in Case 15 C 0111 is

actually attributable to the time he spent in NEOCAP in Case No. 15 C 0032. The state

calculates that Mr. Murton is only entitled to 85 days of jail time credit in this case.

       {¶12} In State v. Williamson, 11th Dist. Portage Nos. 2012-P-0011 and 2012-P-

0012, 2012-Ohio-5227, ¶19-20, this court held:

       {¶13} “When the trial court imposes its sentence, the court must give the

defendant credit for all time served, pursuant to R.C. 2967.191. That section provides:

‘The department of rehabilitation and correction shall reduce the stated prison term of a

prisoner (* * *) by the total number of days that the prisoner was confined for any reason




                                               5
arising out of the offense for which the prisoner was convicted and sentenced (* * *).’

       {¶14} “It is the duty of the trial judge to determine the amount of credit to which

a prisoner is entitled. State ex rel. Rankin v. Ohio Adult Parole Auth., 98 Ohio St.3d

476, * * *, 2003–Ohio–2061, ¶7.       This information must be included in appellant’s

sentencing entry. See R.C. 2949.12; Ohio Adm.Code 5120–2–04(B). Further, since

the provisions of R.C. 2967.191 are mandatory, the trial court’s failure to properly

calculate jail-time credit and to include it in the body of the sentencing order is plain

error. State v. Miller, 8th Dist. Nos. 84540 and 84916, 2005–Ohio–1300, ¶10.” (Parallel

citation omitted.)

       {¶15} In this case, the trial court failed to give Mr. Murton any jail time credit.

The only item in the record which we can use to review the issue is the PSI report. Mr.

Murton, citing to State v. Shelly, 9th Dist. Wayne No. 10CA0032, 2011-Ohio-4301,

argues that any defect in the PSI report was waived, when the state failed to object in

the trial court, and thus, the 230 days set forth in that report must be accepted. We

respectfully note the Ninth District held that plain error in this regard could still be

reviewed. Id. at ¶29. This court has already determined that failure to properly calculate

jail time credit and include it in the judgment entry of sentence is plain error

Williamson, supra, at ¶20.

       {¶16} The state is incorrect that the jail time credit set forth in the PSI report in

Case No. 15 C 0111 includes any of the time Mr. Murton spent in NEOCAP. The PSI

report credits him with jail time from June 3, 2015, until October 20, 2015; April 11,

2016, until July 19, 2016; and September 26, 2016, until the date of sentencing,

September 29, 2016. Mr. Murton was in NEOCAP relating to Case No. 15 C 0032 from




                                             6
October 20, 2015, until mid-February, 2016.

       {¶17} The state further urges us to rely on our decision in State v. Smith, 11th

Dist. Geauga No. 2014-G-3185, 2014-Ohio-5076. In that case, Smith was incarcerated

on unrelated charges, when he came on for sentencing on theft and forgery in the trial

court. Id. at ¶5-8. On appeal, Smith claimed he was due jail time credit for his prison

time on the unrelated charges. Id. at ¶13. We disagreed, noting that his prior jail time

was based on events unrelated to his current conviction, and thus, that he was not

entitled to jail time credit under R.C. 2967.191. Id. at ¶16-19.

       {¶18} Rather, this case is controlled by State v. Fugate, 117 Ohio St.3d 261,

2008-Ohio-856. In that case, Fugate was on community control sanctions for receiving

stolen property, when he was convicted of theft and burglary.            Id. at ¶2-3.    His

community control was revoked. Id. at ¶3. At the sentencing hearing, the trial court

gave him concurrent sentences on the theft and burglary, along with a concurrent

sentence for the community control violation. Id. at ¶3-5. The trial court only applied

Fugate’s jail time credit to the sentence for the community control violation. Id. at ¶3.

On appeal, Fugate argued he deserved all of his jail time credit on all of the concurrent

sentences. Id. at ¶6. The Tenth District disagreed, and affirmed the trial court. Id.

       {¶19} The Supreme Court of Ohio reversed. In relevant part, it held:

       {¶20} “[W]hen 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




                                             7
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.”

Id. at ¶12.

       {¶21} In this case, Mr. Murton was being held in both Case No. 15 C 0111, and

for his community control violations in Case No. 15 C 0032. He was sentenced on the

same day, at the same hearing, in each case, with the terms running concurrently.

Thus, pursuant to Fugate, Mr. Murton is entitled to the full 230 days jail time credit he

demands. On remand, the trial court shall issue a new judgment entry of sentence,

giving Mr. Murton 230 days jail time credit.

       {¶22} The first assignment of error has merit.

       {¶23} The second assignment of error reads: “The trial court erred by imposing

consecutive sentences upon appellant.”

       {¶24} Regarding imposition of consecutive felony sentences, our standard of

review is provided by R.C. 2953.08(G)(2), which provides, in pertinent part:

       {¶25} “The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence and remand

the matter to the sentencing court for resentencing. The appellate court’s standard for

review is not whether the sentencing court abused its discretion. The appellate court

may take any action authorized by this division if it clearly and convincingly finds either

of the following:




                                               8
       {¶26} “(a) That the record does not support the sentencing court’s findings

under * * * division * * * (C)(4) of section 2929.14, * * *;

       {¶27} “(b) That the sentence is otherwise contrary to law.”

       {¶28} R.C.      2929.14(C)(4)     mandates      that    trial   courts,   when   imposing

consecutive sentences on a felon, make certain findings on the record. Failure by a

sentencing court to make these findings is “contrary to law,” and requires reversal. See,

e.g., State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013–Ohio–1891, ¶12. The statute

provides:

       {¶29} “If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison terms

consecutively if the court finds that the consecutive service is necessary to protect the

public from future crime or to punish the offender and that consecutive sentences are

not disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public, and if the court also finds any of the following:

       {¶30} “(a) The offender committed one or more of the multiple offenses while

the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to

section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release

control for a prior offense.

       {¶31} “(b) At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the multiple offenses

so committed was so great or unusual that no single prison term for any of the offenses

committed as part of any of the courses of conduct adequately reflects the seriousness

of the offender’s conduct.




                                               9
      {¶32} “(c) The offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by the

offender.”

      {¶33} In this case, Mr. Murton does not dispute the trial court made the

necessary finding to impose consecutive sentences: admits the trial court recited the

statute almost verbatim, both at the sentencing hearing, and in its judgment entries of

sentence. Mr. Murton further admits a trial court need not give its reasoning for making

the findings.   Venes, supra, at ¶16.     However, he notes the trial court did give its

reasoning in this case. Essentially, he disputes that his conduct was of a sufficiently

serious nature to justify consecutive sentences, R.C. 2929.14(C)(4)(b).         We quote

defense counsel’s speech in mitigation:

      {¶34} The trial court: “Okay. Then, Mr. Partlow, anything on behalf of the client?

      {¶35} Mr. Partlow: “Yes, very briefly, your Honor.

      {¶36} “It is my understanding that the State is going to ask for some sort of

unspecified prison term. I would ask your Honor to consider that what we have in this

case are a lot of charges, okay. The most serious being F-3’s.

      {¶37} “Mr. Murton has never previously been in prison, and this really, to me,

your Honor, is a drug case, whether it is a drug case or not, it is a drug case. These

were all, you know, breaking into cars, breaking into garages, things of that nature to

support a drug habit.

      {¶38} “I realize that’s not an excuse. But it does distinguish it from other types of

cases. We all know how difficult these drug cases can be. We read about it in the

newspaper every day, that you don’t flip a switch and overcome an addition (sic).”




                                            10
       {¶39} We further quote the trial court’s reasons for imposing consecutive

sentences.

       {¶40} The trial court: “I am so disturbed by the duration and the extent of

lawlessness in the criminal behavior on the part of you, Ryan Murton, that I find that it is

extraordinary. It is just beyond any measure to take in the lengths that you went to, the

efforts that you went to, the variety of criminal affairs you involve yourself in, the

burglaries, things on the property, the hiding, the duplicity.

       {¶41} “I don’t know where you got the energy to pull it all off, going Downtown,

melting down gold to resell it.

       {¶42} “And I note, too, for the record, the opportunities that you have had in the

past. You have got a juvenile record. The number of cars and residences involved in

this case just astounds me.

       {¶43} “And the fact that you were, you were the guy behind the curtain. The evil

genius amongst the juveniles and others who did these dastardly deeds against others,

and they are your neighbors. These are people who you break into their car. What, are

you kidding, a car is a very personal, it is a personal place. There is a right and

expectation of privacy to someone’s car. And you broke into houses and you stole

things. You took people’s property repeatedly over and over.

       {¶44} “And I know there is drugs in the background. Yeah, I appreciate that.

But you were steadfast to a degree that I can’t let drugs act as an elixir and wash all that

out.




                                             11
       {¶45} “So I am really, this is something if you added up all the prison time you

could do on this, it would be a figure that would make your head spin.

       {¶46} “I don’t know if you have done that or not. I think you have had some very

competent advice in this case, and you had some opportunities that you have blown.

       {¶47} “I know you are still young. But I feel that you need a long time in prison,

and I mean long. I am not talking about a year or two, because you are so set in your

ways, despite having all the opportunities that you have had to right your ship.

       {¶48} “You seem to be extremely resistant to rehabilitation, and you seem

authoritarian, defiant. You seem like a very angry person.

       {¶49} “So I am going to give you a significant, significant prison term as follows.”

       {¶50} None of this is clearly or convincingly contrary to law. The trial court had

before it the PSI report, indicating Mr. Murton had broken into some 100 homes in

Chesterland alone, and that he had stolen items from 300 cars. He corrupted juveniles

to run his theft ring. This crime spree went on for more than two years. As the trial

court observed, people have an expectation of privacy in their cars, let alone their

homes, and Mr. Murton violated this expectation again and again.

       {¶51} The second assignment of error lacks merit.

       {¶52} The judgment of the Geauga County Court of Common Pleas is affirmed

in part, and reversed in part, and this matter is remanded for further proceedings

consistent with this opinion.



THOMAS R. WRIGHT, J.

TIMOTHY P. CANNON, J., concurs in part and concurs in judgment only in part with a
Concurring Opinion.



                                            12
                                ____________________


TIMOTHY P. CANNON, J., concurring in part and concurring in judgment only in part.

      {¶53} I concur with the majority regarding the imposition of consecutive

sentences.

      {¶54} Regarding the jail-time credit issue, I concur in judgment only. At the

sentencing hearing, the trial court credited appellant with 230 days for time he had

already served in jail. Appellant does not challenge the calculation of 230 days; he

challenges the fact that the 230 days was omitted from the sentencing entry. In its brief,

the state of Ohio argues the 230 day calculation was incorrect, but it does not raise this

issue as a cross-assignment of error. At oral argument, the state conceded 230 days

was appropriate.    As a result, the analysis in the majority opinion regarding the

application of Fugate is unnecessary. I do agree, however, that this matter must be

remanded for the trial court to properly journalize the 230 days of credit given to

appellant in open court at his sentencing hearing.




                                           13
