[Cite as State v. Cupp, 2017-Ohio-7948.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


STATE OF OHIO,                                  :        OPINION

                 Plaintiff-Appellee,            :
                                                         CASE NO. 2016-G-0097
        - vs -                                  :

ADAM R. CUPP,                                   :

                 Defendant-Appellant.           :


Criminal Appeal from the Geauga County Court of Common Pleas.
Case No. 2015 C 000119.

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


James R. Flaiz, Geauga County Prosecutor, and Nicholas A. Burling, Assistant
Prosecuting Attorney, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH
44024 (For Plaintiff-Appellee).

Sean C. Buchanan, Slater & Zurz LLP, One Cascade Plaza, Suite 2210, Akron, OH
44308 (For Defendant-Appellant).



TIMOTHY P. CANNON, J.

        {¶1}     Appellant, Adam R. Cupp, appeals from the September 29, 2016

judgment entry of the Geauga County Court of Common Pleas convicting him of one

count of Endangering Children. Appellant was sentenced to serve 36 months in prison.

At issue is the written plea agreement, appellant’s motion to withdraw plea, and the trial

court’s award of jail-time credit. For the reasons that follow, the trial court’s judgment is

affirmed in part and reversed in part, and the matter is remanded.
Procedural History

        {¶2}   On June 12, 2015, a complaint was filed against appellant in the Chardon

Municipal Court, alleging one count of Rape, a first-degree felony, in violation of R.C.

2907.02(A)(1) & (B).     Appellant posted bond on June 15, 2015, in the amount of

$75,000.00 with conditions. Appellant waived his right to a preliminary hearing, and the

matter was bound over to the Geauga County Court of Common Pleas on June 19,

2015.

        {¶3}   On June 29, 2015, appellant was indicted by the Grand Jury on the

following eight counts: one count of Rape, a first-degree felony in violation of R.C.

2907.02(A)(1)(b) (Count One); one count of Kidnapping, a first-degree felony in violation

of R.C. 2905.01(A)(2) (Count Two); one count of Endangering Children, a second-

degree felony in violation of R.C. 2919.22(B)(1) (Count Three); and five counts of Gross

Sexual Imposition, third-degree felonies in violation of R.C. 2907.05(A)(4) (Counts Four

through Eight). The alleged victim was a female minor, seven years old at the time of

the indictment; the offenses allegedly occurred between July 1, 2012, and April 1, 2014.

        {¶4}   On August 7, 2015, appellant made an initial appearance before the trial

court and entered a plea of not guilty to all counts. The trial court set bond in the

amount of $400,000.00 with conditions. It was determined that appellant was already

being held in the Geauga County Jail for violating his probation in an unrelated

Domestic Violence municipal court case. Appellant had tested positive for cocaine and

morphine, was arrested, and either had not posted bond or was being held without bond

as a result of his probation violation in that case.




                                              2
      {¶5}   The matter was scheduled for trial before a jury in October 2015 but was

delayed at various times due to appellant retaining and discharging three different

attorneys. Appellant submitted speedy-trial waivers during this time.

      {¶6}   At a pre-trial hearing held on October 5, 2015, the prosecutor stated

appellant had been sentenced by the municipal court to approximately 500 days in jail

for the Domestic Violence probation violation.    Defense counsel stated she did not

represent appellant in the Domestic Violence case but that it was her understanding

appellant had not yet been sentenced; she indicated appellant was scheduled to appear

before the municipal court that afternoon. There was some discussion that multiple

municipal court cases might be involved and perhaps appellant had been sentenced on

some but not others. Regardless, appellant remained confined in the Geauga County

Jail on the municipal court charges and, in lieu of bail, on the common pleas charges.

      {¶7}   On June 17, 2016, appellant entered into a written plea agreement with

appellee, the state of Ohio, on two amended counts: one count of Attempted Abduction,

a fourth-degree felony in violation of R.C. 2905.03 & 2923.02 (Amended Count Two);

and one count of Endangering Children, a third-degree felony in violation of R.C.

2919.22(A) & (E)(2)(c) (Amended Count Three). The signed plea agreement provides

that appellant understood he could receive 6 to 18 months in prison and up to a

$5,000.00 fine on Amended Count Two, and 9 to 36 months in prison and up to a

$10,000.00 fine on Amended Count Three. The agreement states issues of merger and

jail-time credit would be addressed at sentencing. A handwritten note is included at the

bottom of the agreement, which states: “The parties agree to recommend that the

defendant be on community control sanctions; if however, he violates he will get

maximum time.” (Emphasis added: “to recommend” was interlineated.) Appellant and

                                           3
defense counsel initialed below the handwritten note; the prosecutor initialed next to the

interlineation of “to recommend.”

      {¶8}   The written plea agreement was presented to the trial court at a hearing

held that same day, June 17, 2016.         At the outset, the trial court reiterated the

substance of the handwritten portion of the agreement, stating:

             The plea agreement goes on to provide for other matters, and
             includes the parties agreeing to recommend that the Defendant be
             placed on community control sanctions, which if violated, it is
             acknowledged that he would get the maximum time. And further,
             that the issue of jail time credit will be addressed at sentencing, if
             there is any jail time credit. We have addressed those with some
             notations to the original plea agreement that have been initialed by
             the parties and counsel[.] [Emphasis added.]

      {¶9}   Defense counsel stated, “Every one of the amendments to the original

plea agreement that you have alluded to in your opening colloquy, your Honor, have

been discussed with my client, and you will find both his initials and mine in every step

in the appropriate way.” The prosecution added that it would nolle the remaining counts

of the indictment at sentencing.

      {¶10} The trial court addressed appellant at the plea hearing, and the following

colloquy, in pertinent part, was had on the record:

             THE COURT: Has anyone made you any promises or offered you
             any inducement or threatened you in any way in order to get you to
             plead guilty other than what is contained in the plea agreement?

             MR. CUPP: No, sir.

             THE COURT: And you did go over the written plea agreement as
             represented by [defense counsel], and in detail with him, correct?

             MR. CUPP: Yes, sir.

             ***




                                            4
              THE COURT: All right. Now, you understand, too, that this plea
              agreement contains some, I think I have already referenced that
              there is a provision that at sentencing, there would be an issue
              brought up as to the jail time credit, if any. And there is also a
              representation that the parties agree, and not just a representation,
              but an agreement that the parties are going to recommend that you
              be placed on community control. And you understand that when it
              comes to sentencing, the Court does not have to follow any
              recommendation, but that it can impose whatever sentence is
              authorized by the law of Ohio?

              MR. CUPP: Yes, sir.

              THE COURT: And that the issue of jail time credit doesn’t imply that
              there is any jail time credit. I understand you have been in jail not
              just because you haven’t posted bond in this case, but because of
              a bond violation from another Court. So that may impact the
              availability of jail time credit in this case. You understand that?

              MR. CUPP: Yes, sir.

        {¶11} The trial court accepted appellant’s plea of guilty, made a finding of guilt

based upon the plea, and ordered preparation of a presentence investigation report.

The prosecution stated appellant was still being held on the probation violation in

municipal court with a scheduled release date of July 29, 2016. The trial court revoked

appellant’s $400,000.00 bond and stated it could be addressed at a later date. Finally,

appellant signed a waiver of his right to be prosecuted by way of an amended grand jury

indictment. This was all journalized in a change of plea order entered on June 24,

2016.

        {¶12} On August 3, 2016, appellant filed a “Motion to Set Bond.” In the motion,

defense counsel asserted: “As contemplated as part of the Plea Agreement made, Mr.

Cupp would be able to get a personal bond, while waiting for sentencing, Mr. Cupp

would use this time to demonstrate to the Court that he has turn[ed] his life around.”




                                            5
The state of Ohio did not file a response in opposition. The trial court overruled the

motion on August 4, 2016, stating:

              [C]ontrary to Defense counsel’s assertion in its motion in support,
              there is no mention of a personal bond being granted to Defendant
              pending sentencing in either the written plea of guilty or the change
              of plea Order entered June 24, 2016. On the contrary, the latter
              provides the Defendant’s bond was revoked – a not unexpected
              development for one who has just plead guilty to two felonies.

       {¶13} On August 9, 2016, appellant filed a “Motion to Withdraw Guilty Plea.”

Appellant, by and through counsel, asserted the motion was based on suspicions raised

by the trial court’s refusal to grant bond. The motion alleged the prosecutor had agreed

not to object to appellant receiving a bond after his sentence in the municipal court case

had run its course, although it also stated that “[b]ond revocation is not an item

contemplated by the written plea agreement signed by Mr. Cupp.”              Specifically,

appellant stated:

              When the time arose for Mr. Cupp’s release [from the municipal
              court case] this Court indicated that a bond would not be set in this
              case as ‘might be expected where someone pleads to two felonies.’
              When the State failed to perform its agreed-to promise regarding
              bond, Mr. Cupp began to suspect that his ratification of the plea
              agreement would be used as an expedited tool to incarcerate
              regardless of the State’s recommendation to this Honorable Court.

The state filed a brief in response to appellant’s motion to withdraw his plea, noting it

had not filed an objection to appellant’s motion to set bond.

       {¶14} On August 17, 2016, after the issue was briefed by both parties, the trial

court held a hearing on appellant’s motion to withdraw his guilty plea. Defense counsel

stated appellant desired to withdraw his plea because he is innocent and had hoped “to

be able * * * to have the better part of two plus weeks to demonstrate to this Court that

he could put his financial house in order, save his home, satisfy his customers, reunite



                                            6
with his mom and his family and be able to be a good candidate for community control.”

The prosecutor, in addition to arguing the merits of the motion, responded it “never went

back on any portion of the deal. We never objected to his being released after his Muni

time was set. * * * We are standing here ready to abide by our end of the bargain. We

stated when he pled guilty to those two counts on June 17th, that we would agree to

recommend that the Defendant be on community control sanctions. * * * We were

prepared to do that again today.” The prosecutor also argued withdrawal of the plea

would prejudice the state, contrary to appellant’s position, because the minor victim had

already been informed she would not have to testify.

      {¶15} The trial court overruled the motion in an order issued August 22, 2016:

             The Court finds the motion not well taken. The grounds cited by
             the defense do not suffice. At the plea hearing the Defendant freely
             and voluntarily entered his plea. He acknowledged that no
             promises were made as inducements to the plea (other than what
             is in the plea agreement) and further acknowledged that the Court
             has discretion to impose any penalty authorized by law.

             It is true that withdrawal of a guilty plea prior to sentencing should
             be granted upon a less stringent standard than post sentence.
             However, this case has been pending for months. Defendant
             engaged skilled counsel, there was a full Crim. R. 11 hearing, and
             Defendant represented himself as guilty of the crimes he pleaded
             guilty to. While he may have expected to be let out on bond
             pending sentencing (now that his Municipal Court sentences have
             been served) the expectation was unwarranted. There is nothing in
             the plea agreement regarding a bond reduction. Defendant’s bond
             was set at $400,000.00 prior to plea and was revoked pending
             sentencing.

             Not every pre-sentence motion to withdraw plea is subject to
             withdrawal. This clearly is one of those situations.

      {¶16} On August 23, 2016, a notice of appearance was filed indicating appellant

had again retained new counsel. That same day, newly-retained counsel filed a motion

to withdraw appellant’s previously filed motion to withdraw plea and requested

                                           7
sentencing be scheduled as soon as possible. The trial court overruled the motion to

withdraw as moot, given it had already overruled the motion to withdraw plea.

       {¶17} On September 22, 2016, appellant appeared before the trial court for

sentencing. Defense counsel stated:

              I think it is very clear in the plea agreement, that everybody,
              including the victim’s family, agreed that probation would be
              recommended to the Court. While I understand the Court certainly
              is not bound by it, I think it is at least the Prosecutor’s belief and my
              belief that that was recommended at that time. And I would ask the
              Court to certainly consider the recommendation of all the parties
              involved in this case, including the victim’s.

The trial court did not ask the prosecutor to reiterate its sentencing recommendation,

and it requested a discussion on the issues of merger and jail-time credit.

       {¶18} Defense counsel argued jail-time credit should begin to run when

appellant’s bond was revoked on June 21, 2016.            The prosecutor responded that

appellant’s jail-time credit should run from July 30, 2016, the day after his municipal

court sentence ended. The trial court agreed with the state and awarded appellant jail-

time credit from July 30, 2016. The trial court awarded 58 days jail-time credit, which

apparently included three days appellant was held before he was sentenced on the

municipal court probation violation.

       {¶19} The prosecutor argued the two amended counts should not merge for

purposes of sentencing because it could not be concluded that the elements of each

count occurred at the same time. Specifically, the prosecutor stated:

              As I review it, your Honor, [Amended Count Three, Endangering
              Children,] covers a date range of July 1 of 2012 through April 12 of
              2014, and the conduct described by the victim made in a series of
              disclosures is indicative of the Defendant’s behaviors through that
              period of time.




                                              8
             He did create, in the periods of time when he had custody and
             control over the victim, he did create by his numerous behaviors
             substantial risk to her health or safety by violating his duty of care.
             It is not limited to one specific act but more of created by the entire
             range which is included in the Indictment in the original Count
             Three and also in the Amended Count Three.

             Contrary to that, looking at the Amended Count Two, the Attempted
             Abduction, the State would argue it would not merge with the
             Endangering Children because that would focus more on specific
             instances where the Defendant did something to either restrain the
             liberty of the victim or would create circumstances that would create
             a risk of physical harm to her or place her in fear of physical harm.

             And I know it is described in the pre-sentence investigation that
             certain period of times that something would happen, and then as a
             result, she would flee to her room and lock herself in out of fear,
             and that is a restraint of her liberty as a result of the actions of the
             Defendant.

Defense counsel responded it could not be concluded that the acts did not occur at the

same time and, thus, they should merge. The trial court agreed with the defense and

found the two counts merge for purposes of sentencing. The state elected to proceed

to sentencing on Amended Count Three, Endangering Children, a third-degree felony.

      {¶20} The trial court then made the requisite findings and advised appellant of

mandatory post-release control for a period of three years.         The trial court found

appellant not amenable to community control and sentenced him to the maximum

prison term of 36 months, to which appellant objected. The remaining counts of the

indictment were dismissed. This was all journalized in a judgment of conviction entered

on September 29, 2016.

      {¶21} Appellant filed a timely appeal and raises four assignments of error, which

we consider out of numerical order.

Plea Agreement

      {¶22} Appellant’s third assignment of error states:

                                            9
       {¶23} “The court erred by following a plea agreement that was materially

different in its written form from what Mr. Cupp actually agreed to.”

       {¶24} The handwritten portion of the written plea agreement states, “The parties

agree to recommend that the defendant be on community control sanctions; if however,

he violates he will get maximum time.”             (Emphasis added: “to recommend” was

interlineated.) Appellant and defense counsel initialed below the note; the prosecutor

initialed next to the interlineation of “to recommend.”

       {¶25} Appellant asserts he signed the written plea agreement before “to

recommend” was added to the handwritten note. In support, appellant relies on his own

affidavit attached to his merit brief on appeal.

       {¶26} “Pursuant to App.R. 12(A)(1)(b) an appellate court is ‘confined to the

record that was before the trial court as defined in App.R. 9(A).’” State v. Corbissero,

11th Dist. Ashtabula No. 2011-A-0028, 2012-Ohio-1449, ¶49, quoting In re Adoption of

Sartain, 11th Dist. Lake No. 2001-L-197, 2002 WL 448434, *2 (Mar. 22, 2002), citing

Lamar v. Marbury, 69 Ohio St.2d 274, 277 (1982). “The original papers and exhibits

thereto filed in the trial court, the transcript of proceedings, if any, including exhibits, and

a certified copy of the docket and journal entries prepared by the clerk of the trial court

shall constitute the record on appeal in all cases.” App.R. 9(A)(1). “The composition of

the record is particularly important, because the appellant bears the burden of

demonstrating errors by reference to the matters existing therein.” Akro-Plastics v.

Drake Indus., 115 Ohio App.3d 221, 225 (11th Dist.1996), citing Knapp v. Edwards

Laboratories, 61 Ohio St.2d 197, 199 (1980).

       {¶27} The affidavit attached to appellant’s brief on appeal is de hors the record,

and we may not consider it in determining his appeal. Appellant fails to substantiate his

                                              10
assigned error with any reference to the trial court record, and our review of the trial

court record reveals no evidence to support the allegation.

       {¶28} Appellant’s third assignment of error is without merit.

       {¶29} Appellant’s fourth assignment of error states:

       {¶30} “The State did not honor the terms of the plea agreement and never

recommended community control sanctions and specifically via their merger argument

argued the factors in favor of a prison sentence in this case.”

       {¶31} “A plea agreement is an essential part of the criminal justice system. * * *

A defendant has a contractual right to enforcement of the prosecutor’s obligations under

the plea agreement after the plea has been accepted by the court.” State v. Adams, 7th

Dist Mahoning No. 13 MA 54, 2014-Ohio-724, ¶17 (internal citation omitted), citing

Santobello v. New York, 404 U.S. 257, 261 (1971).

       {¶32} Appellant argues the state breached its agreement to recommend

community control sanctions by arguing factors in favor of a prison sentence. Appellant

did not raise this argument at his sentencing hearing.

       {¶33} “[W]here a defendant fails to object at sentencing to the state’s

recommendation, the appellate court proceeds under a plain error review.” Id. at ¶23,

citing State v. Hansen, 7th Dist. Mahoning No. 11 MA 63, 2012-Ohio-4574, ¶15, citing

Puckett v. United States, 556 U.S. 129 (2009).           “Plain errors or defects affecting

substantial rights may be noticed although they were not brought to the attention of the

court.” Crim.R. 52(B). Plain error exists when a defendant’s sentence would have been

different absent a prosecutor’s breach of a plea agreement. See Adams, supra, at ¶25,

citing Hansen, supra, at ¶15.




                                            11
       {¶34} Here, there was no error, let alone plain error, because the state did not

breach its agreement to recommend community control sanctions. The written plea

agreement provided the parties would jointly recommend to the trial court that appellant

should be sentenced to community control sanctions. The state acknowledged this

agreement at both the plea hearing and the hearing on appellant’s motion to withdraw

plea. At the sentencing hearing, the trial court did not ask the state to orally recite that

recommendation. Instead, the trial court acknowledged the plea agreement but stated

other issues also needed to be discussed. One of those issues was merger of the

amended counts as allied offenses. In support of its argument that the amended counts

should not merge, the prosecutor outlined the elements of each. Appellant concedes

this was done for the purpose of the merger argument but asserts it also amounted to

the prosecution outlining R.C. 2929.12(B) factors in support of a prison sentence.

       {¶35} Any correspondence between elements of the crime argued for the

purpose of merger and the consideration of sentencing factors, without more, does not

support the conclusion that the state breached its agreement to recommend community

control sanctions. There is no evidence in the record that the state failed to comply with

the recommendation in the plea agreement. Further, even if there had been a breach,

appellant has failed to show that his 36-month prison sentence would have been any

different absent that breach.

       {¶36} Appellant’s fourth assignment of error is without merit.

Motion to Withdraw Plea

       {¶37} Appellant’s second assignment of error states:

       {¶38} “The court erred by not allowing Mr. Cupp to withdraw his plea prior to the

sentencing.”

                                            12
         {¶39} Appellant first argues the trial court applied the wrong legal standard to his

motion to withdraw his guilty plea.

         {¶40} “A motion to withdraw a plea of guilty or no contest may be made only

before sentence is imposed; but to correct manifest injustice the court after sentence

may set aside the judgment of conviction and permit the defendant to withdraw his or

her plea.” Crim.R. 32.1. Motions to withdraw guilty pleas prior to sentencing are to be

allowed freely and liberally. State v. Xie, 62 Ohio St.3d 521, 527 (1992). The right to

withdraw a plea is not, however, absolute. State v. Prinkey, 11th Dist. Ashtabula No.

2010-A-0029, 2011-Ohio-2583, ¶5, citing Xie, supra, at paragraph one of the syllabus.

         {¶41} In its entry overruling appellant’s motion to withdraw plea, the trial court

stated, “withdrawal of a guilty plea prior to sentencing should be granted upon a less

stringent standard than post sentence” and “[n]ot every pre-sentence motion to

withdraw plea is subject to withdrawal.” These are both accurate statements of law

regarding pre-sentence motions to withdraw.          Appellant’s first argument is not well

taken.

         {¶42} An appellate court reviews a trial court’s decision regarding a motion to

withdraw a guilty plea for an abuse of discretion.          Prinkey, supra, at ¶7 (citation

omitted).     An abuse of discretion is the trial court’s “‘failure to exercise sound,

reasonable, and legal decision-making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-

54, 2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary 11 (8th Ed.2004).

         {¶43} In evaluating whether a trial court properly exercised its discretion in ruling

on a pre-sentence motion to withdraw a guilty plea, this court applies the four-factor test

pronounced in State v. Peterseim, 68 Ohio App.2d 211 (8th Dist.1980). See, e.g., State

v. Field, 11th Dist. Geauga No. 2011-G-3010, 2012-Ohio-5221, ¶11, and State v.

                                              13
Johnson, 11th Dist. Lake No. 2007-L-195, 2008-Ohio-6980, ¶21. A trial court does not

abuse its discretion in overruling a motion to withdraw when (1) the defendant was

represented by competent counsel; (2) the defendant was afforded a full plea hearing,

pursuant to Crim.R. 11; (3) the defendant was provided a complete and impartial

hearing on the motion to withdraw; and (4) the trial court gave full and fair consideration

to the request. Peterseim, supra, at paragraph three of the syllabus.

       {¶44} Appellant’s next arguments relate to the third and fourth Peterseim factors.

First, he argues the trial court failed to conduct a full hearing on his motion to withdraw

plea because there was “no proffer of evidence, no testimony, or any other hallmarks of

a full hearing.”

       {¶45} “[T]he trial court must conduct a hearing to determine whether there is a

reasonable and legitimate basis for the withdrawal of the plea.” State v. Ziefle, 11th

Dist. Ashtabula No. 2007-A-0019, 2007-Ohio-5621, ¶9, citing Xie, supra, at paragraph

one of the syllabus.

       {¶46} The transcript of the hearing held on appellant’s motion to withdraw plea

indicates the hearing was complete and impartial. At the outset of the hearing, the trial

court stated it was “going to entertain argument and/or the proffering of evidence on the

part of the defense, inasmuch as it is the defense motion.” Defense counsel proceeded

to argue the merits of appellant’s motion to withdraw plea, and the prosecutor

responded in turn. The trial court then stated, “[a]s the moving party, you get the last

word,” and again gave the floor to defense counsel for rebuttal. Before concluding, the

trial court stated, “All right.   Is there anything else for the record before the Court

adjourns the hearing, State of Ohio? Or defense?” The state declined, and defense

counsel stated, “Nothing at this time, your Honor.”

                                             14
      {¶47} Nothing in the record supports appellant’s assertion that the trial court

denied him the opportunity to present evidence or testimony at this hearing. The record

entirely supports the contrary conclusion. This argument is not well taken.

      {¶48} Appellant next argues the trial court did not give full and fair consideration

to the basis for his motion to withdraw plea, namely that the trial court “tipped its hand

when it did not reduce bond as recommended in the plea agreement, thus triggering the

defendant’s opportunity to withdraw a plea if the court is already not going to follow the

agreement.”

      {¶49} In its entry overruling the motion to withdraw plea, the trial court stated:

“While he may have expected to be let out on bond pending sentencing (now that his

Municipal Court sentences have been served) the expectation was unwarranted. There

is nothing in the plea agreement regarding a bond reduction. Defendant’s bond was set

at $400,000.00 prior to plea and was revoked pending sentencing.”             There is no

mention of a bond reduction in the written plea agreement, and defense counsel agreed

at the plea hearing that bond could be discussed at a later date. Thus, the trial court

correctly concluded, after full and fair consideration, that there was no reasonable and

legitimate basis for appellant’s motion to withdraw plea. The contrary assertion is also

belied by the fact that appellant later filed a motion to withdraw his motion to withdraw

plea. The record is devoid of any evidence to support appellant’s argument.

      {¶50} Appellant’s second assignment of error is without merit.

Jail-Time Credit

      {¶51} Appellant’s first assignment of error states:




                                           15
       {¶52} “The court erred by not awarding jail time credit that defendant served

after he was arrested and the bond in this case was increased to $400,000 and

subsequently revoked at sentencing.”

       {¶53} “We review the trial court’s determination as to the amount of credit to

which [a defendant] is entitled under the ‘clearly and convincingly’ contrary to law

standard.” State v. Smith, 11th Dist. Geauga No. 2014-G-3185, 2014-Ohio-5076, ¶15,

quoting R.C. 2953.08(G)(2); see also State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, ¶1.

       {¶54} The calculation of jail-time credit is governed by R.C. 2967.191: “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 * * *.” It is

the trial court’s obligation at the time of sentencing, however, to “[d]etermine, notify the

offender of, and include in the sentencing entry the number of days that the offender

has been confined for any reason arising out of the offense for which the offender is

being sentenced * * *.” R.C. 2929.19(B)(2)(g)(i).

       {¶55} “‘Although the principle of crediting time served seems fairly simple on its

face, in practice, it can be complicated when, inter alia, the defendant is charged with

multiple crimes committed at different times, or when the defendant is incarcerated due

to a probation violation.’” State v. Maddox, 8th Dist. Cuyahoga No. 99120, 2013-Ohio-

3140, ¶41, quoting State v. Chafin, 10th Dist. Franklin No. 06AP-1108, 2007-Ohio-1840,

¶9.

       {¶56} The trial court awarded appellant 58 days of jail-time credit, which reflects

the 55 days between July 30, 2016, the day after his municipal court sentence was

                                            16
completed, and September 22, 2016, the day he was sentenced in the case sub judice.

He was also awarded 3 days for time he apparently served between his arrest in the

case sub judice and the day he was sentenced in the municipal court case.

       {¶57} Appellant now argues he should have been awarded jail-time credit in the

case sub judice from August 7, 2015, the day the trial court imposed a $400,000.00

bond, through September 22, 2016, the day he was sentenced.               Although he was

confined for the municipal court probation violation, appellant argues he still would have

remained incarcerated in lieu of bail on the instant offense. Appellant asserts he is

properly entitled to jail-time credit in both courts, as both courts were holding him.

       {¶58} In support, appellant relies on a recent opinion from this court, State v.

Caccamo, 11th Dist. Lake No. 2015-L-048, 2016-Ohio-3006, which relied on the Ohio

Supreme Court’s opinion in State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856.

       {¶59} The defendant in Fugate was indicted on two felony offenses while serving

community control sanctions on a previous offense. While in jail on the felony charges,

the probation department sought to revoke the defendant’s community control on the

previous offense. At the sentencing hearing, which addressed the felony charges and

the community control violation, the trial court imposed concurrent prison terms. The

trial court awarded jail-time credit on the sentence imposed for the community control

violation but not for the felony offenses. The defendant appealed, arguing the trial court

should have awarded jail-time credit on both sentences. The Ohio Supreme Court

agreed with the defendant: “When a defendant is sentenced to concurrent prison terms

for multiple charges, jail-time credit pursuant to R.C. 2967.191 must be applied toward

each concurrent prison term.” Fugate, supra, at syllabus.




                                             17
      {¶60} The majority opinion in Caccamo relied on the Fugate holding.           The

defendant in Caccamo was sentenced by the Lake County Court of Common Pleas to

150 days in the Lake County Jail and 2 years community control. While serving his

community control, the defendant was arrested on a separate offense and held in the

Cuyahoga County Jail, for which he was sentenced to 8 months in prison by the

Cuyahoga County Court of Common Pleas.         As a result of his arrest in Cuyahoga

County, the state moved to terminate the community control sanctions in Lake County,

and the defendant was transferred from the state prison to county jail to await his

termination hearing.   The Lake County Court of Common Pleas sentenced the

defendant to 26 months in prison on the community control violation, to be served

concurrently with the remainder of his 8-month prison term in Cuyahoga County. The

Lake County Court of Common Pleas credited the defendant with 33 days, which

represented 12 days he was held prior to pleading guilty in the underlying Lake County

case and 21 days he was held in the county jail awaiting his hearing and sentencing for

violating community control in the Lake County case.

      {¶61} The defendant appealed, arguing the trial court erred in its calculation of

jail-time credit because his confinement in Cuyahoga County was based upon the

alleged community control violation in Lake County.      The majority opinion agreed

because the Lake County Court of Common Pleas ordered its sentence be served

concurrently with the Cuyahoga County sentence and because the offense in Cuyahoga

County was the basis for the community control violation holder issued by Lake County.

The majority held:

             In attempting to distinguish Fugate, some appellate courts have
             concluded that the Fugate analysis should not be followed when
             the concurrent prison terms are imposed by different trial courts at

                                          18
             different times. See, e.g., State v. Marini, 5th Dist. Tuscarawas No.
             09-CA-06, 2009-Ohio-4633, ¶23.            However, given that the
             existence of the holder justifies appellant’s continuing incarceration
             had the Cuyahoga County charge been dismissed, the foregoing
             distinction is unpersuasive because it would defeat the underlying
             principle that a defendant is entitled to credit for all presentencing
             incarceration based upon the pending charges in the underlying
             case. Since appellant’s confinement in the Cuyahoga County Jail
             was predicated in part upon the [underlying] charges in Lake
             County, he is entitled to jail-time credit for the days from January
             22, 2014 [when the Lake County arrest warrant was issued] until
             April 21, 2014 [when the Lake County arrest warrant was
             executed].

Caccomo, supra, at ¶18.

      {¶62} The facts of appellant’s case are distinguishable from both Fugate and

Caccomo. Unlike Fugate, appellant was not sentenced to concurrent terms for multiple

offenses at the same time by the same court. Unlike Caccomo, appellant was not

sentenced to concurrent terms for related offenses in different cases, at different times,

by different courts. Appellant was never ordered to serve concurrent prison terms: he

had already completed his sentence on the municipal court probation violation prior to

being sentenced on the common pleas felony case. Thus, the sentences could never

have been served simultaneously.

       {¶63} The outcome of appellant’s challenge to the trial court’s legal

determination of jail-time credit turns entirely upon the controlling language in R.C.

2967.191. “Under the plain terms of R.C. 2967.191, an offender is only entitled to credit

for time spent incarcerated relating to the offense for which he is convicted.” State v.

Ashley, 11th Dist. Lake No. 2006-L-134, 2007-Ohio-690, ¶32.

       {¶64} Although appellant was already being held on the municipal court case,

the trial court increased appellant’s bail for the instant offense to $400,000.00 on August

7, 2015. Thus, because appellant did not post bond, he has been incarcerated related

                                            19
to the instant offense since August 7, 2015. Appellant was sentenced on September

22, 2016, but the trial court only gave credit from July 30, 2016, the day after his

municipal court sentence was completed. The plain language of the statute requires the

trial court to give jail-time credit from August 7, 2015, through September 22, 2016, in

addition to the three days appellant was held between his arrest and the day he was

sentenced in the municipal court case.

       {¶65} The trial court’s determination as to the amount of credit to which

appellant was entitled is clearly and convincingly contrary to law.

       {¶66} Appellant’s first assignment of error is with merit.

       {¶67} The judgment of the Geauga County Court of Common Pleas is hereby

affirmed in part and reversed in part.       This matter is remanded for the purpose of

revising the sentencing entry to reflect the correct jail-time credit as set forth herein.



THOMAS R. WRIGHT, J., concurs,

CYNTHIA WESTCOTT RICE, P.J., concurs in part and dissents in part, with a
Dissenting Opinion.


                                  ____________________


CYNTHIA WESTCOTT RICE, P.J., concurs in part and dissents in part, with a
Dissenting Opinion.

       {¶68} While I concur with the majority’s disposition of appellant’s second, third,

and fourth assignments of error, I disagree with its conclusion relating to appellant’s first

assignment of error. The majority maintains that appellant is entitled to jail-time credit

from August 7, 2015 through September 22, 2016 because the trial court increased his

bail in the underlying offense to $400,000 and he did not post bond. In effect, the

                                              20
majority reasons that, even though appellant was being held on a separate, municipal

court charge between August 7, 2015 and June 29, 2016, the increased bond in the

instant case supports the conclusion that his confinement arose out of the instant

offense. I respectfully dissent.

       {¶69} Appellant was confined in the Geauga County Jail from August 7, 2015

through June 29, 2016 for sentences arising out of probation violations in the Chardon

Municipal Court where he was previously convicted of an unrelated domestic violence

offense.     It is not entirely clear how the offenses which occasioned the probation

violations are related to the underlying offense. And simply because the time served for

these offenses ran concurrently with the pre-detention phase of the instant case does

not automatically trigger jail-time credit for the instant case. State v. Moore, 11th Dist.

Ashtabula No. 2015-A-0069, 2016-Ohio-3510 illustrates the point.

       {¶70} In Moore, the defendant was granted judicial release from a term of

imprisonment in Ashtabula County.        A request for capias was later filed by the

Ashtabula County Adult Probation Department based on the defendant’s failure to

comply with the terms of his probation. At that time, he was incarcerated in the Lake

County Jail awaiting sentencing on other charges. The defendant served a nine-month

sentence for the Lake County convictions before he was brought to Ashtabula County

for the probation violation. Ashtabula County found the defendant violated his probation

by pleading guilty to felony offenses in Lake County and by failing to report to probation.

The defendant argued he was entitled to jail-time credit in Ashtabula County for the

entire nine months he served in Lake County because the capias was pending during

that time.




                                            21
       {¶71} A hearing was held on the jail-time credit issue, at which defense counsel

presented a judgment of conviction from Lake County that did not reference the capias

or the probation violation.     Counsel argued the defendant would not have been

permitted to get out of jail even if he posted bond in Lake County because of the capias.

The trial court disagreed with the defendant’s position and denied his motion.

       {¶72} On appeal, this court affirmed the trial court observing there was no

relationship between the charges at issue and there was no evidence that Ashtabula

County issued a holder. Further, the judgment ordering a capias to issue was not

served on the defendant until he was released from Lake County. Also there was no

evidence Lake County was informed the defendant should be held on the probation

violation and the defendant did not argue such evidence was part of the record. Id. at

¶22. This court pointed out:

       {¶73} “[J]ail-time 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, ¶11. “R.C. 2967.191 is inapplicable when the offender is imprisoned as a result

of another unrelated offense,” and “there is no jail-time credit for time served on

unrelated offenses, even if that time served runs concurrently during the pre-detention

phase of another matter.” Id. Moore, supra, at ¶18.

       {¶74} This court accordingly held:

       {¶75} “While the Lake County convictions provided part of the basis for Moore’s

probation violation, in addition to his failure to report, this does not create a relationship

with the original underlying charges requiring jail-time credit. Moore was ordered to

serve his original term for the underlying [Ashtabula County] convictions, which are

                                             22
unrelated to the Lake County convictions for which Moore served nine months.” Id. at

¶19, citing State v. Olmstead, 5th Dist. Richland No. 2007-CA-119, 2008-Ohio-5884,

¶19 (jail-time credit for an arrest on a probation violation “can only be credited toward

the sentence on the original charge, i.e., the one for which he was sentenced to

probation”).

       {¶76} In this case, there is no evidence in the record that the underlying felony

offense provided any basis for appellant’s probation violation in the municipal court.

Appellant has not established any relationship between the offenses such that

additional jail-time credit should be awarded. The only probation violations mentioned

in the hearings below were testing positive for cocaine and morphine and failing to

comply with no-contact orders.      Appellant’s time served on the original term in the

municipal court (due to probation violations) ran concurrently during the pre-detention

phase of the felony offenses, but ended before he was sentenced on the felony

offenses. Accordingly, appellant did not establish the offenses were in any way related.

I would find appellant’s first assignment of error without merit. In this regard, I dissent.




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