[Cite as State v. Wilson, 2015-Ohio-4231.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




STATE OF OHIO,                                     :

        Plaintiff-Appellee,                        :     CASE NO. CA2015-03-058

                                                   :           OPINION
    - vs -                                                     10/13/2015
                                                   :

PIERRE WILSON,                                     :

        Defendant-Appellant.                       :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2014-10-1592



Michael T. Gmoser, Butler County Prosecuting Attorney, Audra R. Adams, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Brandabur & Bowling Co., L.P.A., Jeffrey W. Bowling, 315 South Monument Avenue,
Hamilton, Ohio 45011, for defendant-appellant



        PIPER, P.J.

        {¶ 1} Defendant-appellant, Pierre Wilson, appeals the sentence imposed upon him

by the Butler County Court of Common Pleas for committing burglary, as well as the court's

calculation of confinement credit.

        {¶ 2} Wilson, who was on community control for a previous conviction, broke into the

home of his ex-girlfriend and stole several items. Wilson was indicted on one count of
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burglary, and was also charged separately for violating the terms of his community control.

Wilson entered a guilty plea to an amended burglary charge, and did so pursuant to North

Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970). Wilson also entered an admission that

he violated the terms of his community control by committing the burglary. From the time of

his arrest until his sentencing, Wilson was confined in the Butler County Jail and spent 234

total days incarcerated.

       {¶ 3} The trial court held a sentencing hearing, at which it ordered Wilson to serve a

three-year sentence for the burglary. The court also sentenced Wilson to serve 234 days for

the violation of community control, and then administratively terminated Wilson's community

control upon awarding the 234-day jail-time credit toward the community control violation

sentence. Wilson now appeals the trial court's sentence, as well as the way in which the trial

court awarded the jail-time credit, raising the following assignments of error.

       {¶ 4} Assignment of Error No. 1:

       {¶ 5} THE TRIAL COURT'S SENTENCE WAS CONTRARY TO LAW AND AN

ABUSE OF DISCRETION.

       {¶ 6} Wilson first argues that the trial court erred in sentencing him to three years for

the burglary conviction.

       {¶ 7} In support of his argument that the trial court incorrectly sentenced him, Wilson

relies upon the standard set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912.

However, and as this court has stated multiple times, the standard of review set forth in R.C.

2953.08(G)(2) shall govern all felony sentences. State v. Crawford, 12th Dist. Clermont No.

CA2012-12-088, 2013-Ohio-3315, ¶ 6. Pursuant to R.C. 2953.08(G)(2), when hearing an

appeal of a trial court's felony sentencing decision, "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." However, as
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explicitly stated in R.C. 2953.08(G)(2), "[t]he appellate court's standard for review is not

whether the sentencing court abused its discretion." (Emphasis added.)

       {¶ 8} Instead, an appellate court may only take action authorized by R.C.

2953.08(G)(2) if the court "clearly and convincingly finds" that the sentence is contrary to law.

A sentence is not clearly and convincingly contrary to law where the trial court considers the

purposes and principles of sentencing as set forth in R.C. 2929.11, as well as the

seriousness and recidivism factors listed in R.C. 2929.12, and sentences the defendant

within the permissible statutory range. Crawford at ¶ 9; State v. Elliott, 12th Dist. Clermont

No. CA2009-03-020, 2009-Ohio-5926, ¶ 10.

       {¶ 9} After reviewing the record, the trial court's sentence is not contrary to law. The

transcript of the sentencing hearing clearly indicates that the trial court considered the

purposes and principles of the Ohio sentencing statutes, as well as the seriousness and

recidivism factors. The trial court also expressly stated in its entry that it had considered the

purposes and principles of sentencing according to R.C. 2929.11 as well as the seriousness

and recidivism factors within R.C. 2929.12. Based on the record, it is clear that the trial court

gave the proper consideration to the statutory requirements for sentencing.

       {¶ 10} Wilson was convicted of burglary in violation of R.C. 2911.12(A)(3), which is a

third-degree felony. According to R.C. 2929.14(A)(3)(b), "for a felony of the third degree * * *

the prison term shall be nine, twelve, eighteen, twenty-four, thirty, or thirty-six months." As

such, Wilson's three-year sentence was within the sentencing range for a third-degree felony.

       {¶ 11} After reviewing the record, we find that Wilson's sentence was not clearly and

convincingly contrary to law where the trial court considered the purposes and principles of

sentencing according to R.C. 2929.11, as well as the seriousness and recidivism factors

listed in R.C. 2929.12, and sentenced Wilson within the permissible statutory range. As

such, Wilson's sentence was not contrary to law, and his first assignment of error is
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overruled.

        {¶ 12} Assignment of Error No. 2:

        {¶ 13} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO GIVE

APPELLANT JAIL TIME CREDIT FOR THIS CASE.

        {¶ 14} Wilson argues in his second assignment of error that the trial court erred in

failing to award him jail-time credit.

        {¶ 15} Relying on the principles inherent in the Equal Protection Clause, courts have

held that defendants must be credited for the time they are confined while awaiting trial.

State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, ¶ 7. "The Equal Protection Clause

requires that all time spent in any jail prior to trial and commitment by a prisoner who is

unable to make bail because of indigency must be credited to his sentence." Id. (Emphasis

sic).

        {¶ 16} The Ohio legislature codified this principle within R.C. 2967.191, which states

that "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

arising out of the offense for which the prisoner was convicted and sentenced, including

confinement in lieu of bail while awaiting trial * * *." The trial court makes the factual

determination as to the number of days a confined defendant is entitled to have credited

toward his sentence. State v. Chasteen, 12th Dist. Butler No. CA2013-11-204, 2014-Ohio-

3780.

        {¶ 17} However, an offender is not entitled to jail-time credit for any period of

incarceration that arose from facts that are separate and apart from those on which his

current sentence is based. State v. Haley, 12th Dist. Butler No. CA2012-10-212, 2013-Ohio-

4531, ¶ 21. As such, a trial court does not give jail-time credit for time served on unrelated

offenses, "even if that time served runs concurrently during the pre-detention phase of
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another matter." Id.

       {¶ 18} This court has previously decided a case directly on point. Chasteen, 2014-

Ohio-3780. In Chasteen, we affirmed the trial court's decision to award jail-time credit to a

sentence imposed for a community control violation even though the defendant was also

being held on the charges for which he was later sentenced to seven years. Chasteen, who

was on community control when he committed several theft-related offenses, was arrested

and incarcerated until his sentencing occurred. The trial court administratively dismissed

Chasteen's community control as being unsuccessful and then sentenced Chasteen to 461

days for having violated the terms of his community control. The trial court credited the 461

days Chasteen had spent in jail awaiting sentencing toward the sentence imposed for the

community control violation. The trial court then sentenced Chasteen to seven years for his

theft-related crimes, and the sentence for the community control violation was not run

concurrent to the theft sentence. As such, the trial court was authorized to award the jail-time

credit to the community control violation, as it was not a concurrent sentence that would have

required application of jail-time credit to the theft sentence as well.

       {¶ 19} In Chasteen, we also recognized that other courts have affirmed similar jail-time

credit calculations when the trial court essentially sentences the defendant to "time served"

for a community control violation but does not run the community control violation concurrent

with the sentence for any new crimes committed. See State v. Speakman, 10th Dist. Franklin

Nos. 08AP-456 to 458, 2009-Ohio-1184, ¶ 13 (affirming where "the court sentenced

appellant to an amount of time equal to the amount of jail time credit he had, which resulted

in appellant having already served his sentence for the community control violation by the

time of the sentencing hearing"); State v. Maddox, 8th Dist. Cuyahoga No. 99120, 2013-

Ohio-3140, ¶ 49 (affirming where the trial court did not order appellant to concurrent

sentences for his probation violation and new crimes, and instead, "essentially sentenced
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Maddox to time served for those violations"); and State v. Smith, 10th Dist. Franklin Nos.

08AP-736 and 09AP-72, 2009-Ohio-2166, ¶ 48 (affirming where the trial court's "express

intention was to apply all of the time to the community control violation as the full sentence

for that violation" so that there were no concurrent sentences imposed).

       {¶ 20} After reviewing the record, we find that Wilson was properly sentenced on the

community control violation to the time he already served while awaiting disposition of the

pending burglary charge. Wilson was not sentenced to concurrent prison time for his

violation of community control and his burglary charge. Rather, Wilson completed his prison

sentence under the community control violation before he was sentenced for burglary so that

the 234-day sentence could not be served simultaneously with the three-year burglary

sentence. As such, Wilson was not entitled to have the 234 days credited toward his

sentence for burglary where the trial court credited all of those days to the sentence for

Wilson's violation of his community control. Therefore, the trial court did not err in calculating

Wilson's jail-time credit, and his second assignment of error is overruled.

       {¶ 21} Judgment affirmed.


       RINGLAND and M. POWELL, JJ., concur.




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