[Cite as State v. Bode, 2013-Ohio-2134.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee    :       Hon. Sheila G. Farmer, J.
                                               :
-vs-                                           :
                                               :       Case No. 12-CA-33
JASON T. BODE                                  :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Fairfield County
                                                   Court of Common Pleas, Case No. 12-CR-
                                                   0006

JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            May 22, 2013




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JOCELYN KELLY                                      SCOTT WOOD
DARREN MEADE                                       144 East Main Street
239 West Main Street, Ste. 101                     Box 667
Lancaster, OH 43130                                Lancaster, OH 43130
[Cite as State v. Bode, 2013-Ohio-2134.]


Gwin, P.J.

        {¶1}     Appellant Jason Bode [“Bode”] appeals from his convictions and

sentences in the Fairfield County Court of Common Pleas on two counts of OVI, each

with a specification that he had previously been convicted of or pleaded guilty to five or

more equivalent offenses. The appellee is the State of Ohio.

                                           Facts and Procedural History

        {¶2}     On May 28, 2011, Bode was arrested by Officer David Thompson of the

Lancaster Police Department and charged with an OVI, in violation of R.C.

4511.19(A)(1)(1). He was cited into Fairfield County Municipal Court under Case

Number TRC-11-5042.

        {¶3}     On December 29, 2011, while Case Number TRC-11-5042 was still

pending in the Fairfield County Municipal Court, Bode was arrested by Officer Brian St.

Clair of the Lancaster Police Department and charged with an OVI, in violation of R.C.

4511.19(A)(1)(A). This case was filed as a felony complaint in the Fairfield County

Municipal Court under Case Number CRA-11-3348, but was subsequently dismissed by

the state for future indictment.

        {¶4}     On January 6, 2012, Bode was indicted by the Fairfield County Grand Jury

under Case Number 12-CR-6 and charged with five counts of OVI with specifications to

each of those counts. Counts one, two and three related to Bode's arrest on May 28,

2011, and Counts four and five related to Bode's arrest on December 29, 2011.

        {¶5}     Count one of the Indictment was an OVI charge from May 28, 2011, based

on Bode being under the influence, with an allegation of five OVI convictions in the 20

years prior, which made the charge a felony of the fourth degree. The specification to
Fairfield County, Case No. 12-CA-33                                                      3


Count one also alleged five OVI convictions in the 20 years prior, which subjected Bode

to one to five years of additional, mandatory prison time pursuant to R.C. 2941.1413.

Four of Bode's prior OVI convictions were as an adult in 1996, 1997, 1998 and 1998.

The remaining OVI conviction was a juvenile adjudication in 1992 in Franklin County

Juvenile Court.

      {¶6}   Count two was an OVI charge from May 28, 2011, based on Bode's

refusal to submit to a chemical test, with an allegation of five OVI convictions in the 20

years prior, which made the charge a felony of the fourth degree. Count two also had a

specification pursuant to R.C. 2941.1413.

      {¶7}   Count three was an OVI charge from May 28, 2011, based on Bode

having a prohibited level of alcohol in his system as measured by a blood test, with an

allegation of five OVI convictions in the 20 years prior, which made the charge a felony

of the fourth degree. Count three also had a specification pursuant to R.C. 2941.1413.

      {¶8}   Count four was an OVI charge from December 29, 2011, based on Bode

being under the influence with an allegation of five OVI convictions in the 20 years prior,

which made the charge a felony of the fourth degree. Count four also had a

specification pursuant to R.C. 2941.1413.

      {¶9}   Count five was an OVI charge from December 29, 2011, based on Bode

having a prohibited level of alcohol in his system as measured by a breath test, with an

allegation of five OVI convictions in the 20 years prior, which made the charge a felony

of the fourth degree. Count five also had a specification pursuant to R.C. 2941.1413.
Fairfield County, Case No. 12-CA-33                                                        4


       {¶10} On February 16, 2012, the state orally moved the trial court to sever

Counts one through three from Counts four and five of the Indictment. Bode did not

object. The trial court granted this motion by Judgment Entry filed May 2, 2012.

       {¶11} On March 1, 2012, Bode filed a Motion in Limine/Motion to Suppress to

exclude or suppress Bode’s prior OVI juvenile adjudication in 1992 on the basis that

Bode did not have legal counsel nor did Bode validly waive his right to legal counsel at

the time of the juvenile adjudication in 1992.

       {¶12} On March 14, 2012, an oral hearing was held on Bode’s Motion in

Limine/Motion to Suppress, which was overruled by the trial court by written decision

filed April 2, 2012.

       {¶13} On April 5, 2012, Bode filed a Motion to Dismiss Counts 1, 2 and 3 of the

Indictment due to the State’s failure to bring Bode to trial within the statutory time limits

prescribed by R.C. 2945.71.

       {¶14} On April 23, 2012, an oral hearing was held on Bode’s Motion to Dismiss,

which was overruled by the trial court pursuant to a written decision filed May 2, 2012.

       {¶15} On May 2, 2012, pursuant to a plea agreement with the state, Bode

entered pleas of no contest to, and was found guilty by the trial court of, Counts 3 and 5

of the Indictment, with the specifications. The remaining counts and specifications in the

Indictment were dismissed by the state pursuant to the plea agreement.

       {¶16} On June 8, 2012, a contested sentencing hearing was held by the trial

court. Bode argued that he should be sentenced on the OVI’s as misdemeanors only

and not sentenced on the specifications on the basis that a juvenile adjudication for OVI

is not an “equivalent offense,” pursuant to R.C. 4511.181, and based on double
Fairfield County, Case No. 12-CA-33                                                    5


jeopardy. The trial court rejected these arguments and sentenced Bode to a total of 8-

1/2 years in prison, with 5-1/2 years suspended for community control and 3 years to

serve of mandatory prison time. Further, the trial court refused to grant Bode 30 days of

jail time credit for 30 days he spent in the Fairfield County Jail on the pending charges

in the Indictment and for a misdemeanor probation violation.

                                      Assignments of Error

      {¶17} Bode raises four assignments of error,

      {¶18} “I. THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

MOTION IN LIMINE/MOTION TO SUPPRESS.

      {¶19} “II. THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

MOTION TO DISMISS.

      {¶20} “III. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO THE

OVI’S AS FELONIES OF THE FOURTH DEGREE AND IN SENTENCING APPELLANT

ON THE SPECIFICATIONS.

      {¶21} “IV. THE TRIAL COURT ERRED IN NOT GRANTING 30 ADDITIONAL

DAYS OF JAIL TIME CREDIT TO APPELLANT.”

                                               I.

      {¶22} In his first assignment of error, Bode argues an uncounseled conviction

cannot be used to enhance the penalties for a later conviction if the earlier conviction

resulted in a sentence of confinement.

      {¶23} In the landmark decision of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct.

792, 9 L.Ed.2d 799(1963), the United States Supreme Court held an indigent defendant

was entitled to court appointed counsel. Subsequently, the High Court narrowed this
Fairfield County, Case No. 12-CA-33                                                       6


Right, holding “the Sixth and Fourteenth Amendments to the United States Constitution

require only that no indigent criminal defendant be sentenced to a term of imprisonment

unless the state has afforded him the right to assistance of appointed counsel in his

defense.” Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed. 2d 383(1979). Accord,

Nichols v. United States, 511 U.S. 738, 743 114 S.Ct. 1921, 128 L.Ed.2d 745(1994);

State v. Brandon, 45 Ohio St.3d 85, 86, 543 N.E.2d 501, 503(1989). (“This is not to say

that counsel is required in all instances. Indeed, in Scott, supra, the court essentially

held that uncounseled misdemeanor convictions are constitutionally valid if the offender

is not actually incarcerated.”); State v. Smith, 5th Dist. No. 2010-CA-00335, 2011-Ohio-

3206.

        {¶24} In Scott, the court stated that “actual imprisonment is a penalty different in

kind from fines or the mere threat of imprisonment * * * and warrants adoption of actual

imprisonment as the line defining the constitutional right to appointment of counsel. * * *

440 U.S. at 373-374, 99 S.Ct. 1161-1162.

        {¶25} In Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d

888(2002), the United States Supreme Court did find that a “suspended sentence that

may end up in actual deprivation of a person's liberty may not be imposed unless the

defendant was accorded the guiding hand of counsel.” Id., syllabus.

        {¶26} In Nichols, supra the court recognized that there is a distinction

concerning the right to have counsel appointed noting, “In felony cases, in contrast to

misdemeanor charges, the Constitution requires that an indigent defendant be offered

appointed counsel unless that right is intelligently and competently waived. Gideon v.
Fairfield County, Case No. 12-CA-33                                                      7

Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).” 511 U.S. at 743, n. 9.

Ohio likewise has recognized such a distinction.

      {¶27} Crim.R. 2(C) defines “serious offense” as “any felony, and any

misdemeanor for which the penalty prescribed by law includes confinement for more

than six months,” while Crim.R. 2(D) defines “petty offense” as “a misdemeanor other

than a serious offense.” In the case at bar, the charge against appellant was a “petty”

offense.

      {¶28} The scope of the application of the right to counsel is recognized in

Crim.R. 44, which sets forth the basic procedure for the assignment of counsel in Ohio

criminal cases.

      {¶29} Crim.R. 44 states:

             (B) Counsel in petty offenses

             Where a defendant charged with a petty offense is unable to obtain

      counsel, the court may assign counsel to represent him. When a

      defendant charged with a petty offense is unable to obtain counsel, no

      sentence of confinement may be imposed upon him, unless after being

      fully advised by the court, he knowingly, intelligently, and voluntarily

      waives assignment of counsel. (Emphasis added)

      {¶30} The word “shall” is usually interpreted to make the provision in which it is

contained mandatory. Dorrian v. Scioto Conservancy District), 27 Ohio St. 2d 102, 107,

271 N.E. 2d 834(1971). In contrast, the use of the word “may” is generally construed to

make the provision in which it is contained optional, permissive, or discretionary. Id. The

words “shall” and “may” when used in statutes are not automatically interchangeable or
Fairfield County, Case No. 12-CA-33                                                       8

synonymous. Id. To give the “may” as used in a statute a meaning different from that

given in its ordinary usage, it must clearly appear that the Legislature intended that it be

so construed from a review of the statute itself. Id. at 107– 108, 271 N.E. 2d 834. In re:

McClanahan, 5th Dist. No. 2004AP010004, 2004–Ohio–4113, ¶ 17.

       {¶31} Pursuant to that rule, the trial court has discretion whether to appoint

counsel where a defendant is charged with a petty offense. However, the trial court

could impose a term of imprisonment for a petty offense under only two circumstances:

(1) appellant was actually represented by counsel during his change of plea; or (2) he

decided to represent himself and properly waived his right to counsel. Smith, 5th Dist.

No. 2010-CA-00335, 2011-Ohio-3206 at ¶49.

       {¶32} Our review of the trial court record indicates that Bode was never

imprisoned for the juvenile OVI adjudication. Nor did the juvenile court impose a

sentence of incarceration and then suspend the jail time on the condition that Bode

complete a treatment program. When Bode failed to appear for a court hearing to

discuss his participation in an aftercare program, the juvenile court forwarded his driver

license and the ticket to the Ohio Bureau of Motor Vehicles and closed the case. (T.

March 14, 2012 at 87-88).

       {¶33} Thus, no cognizable violation of the Sixth Amendment right to appointed

counsel occurred in the case at bar because, as the Supreme Court of Ohio has held,

“uncounseled misdemeanor convictions are constitutionally valid if the offender is not

actually incarcerated.” State v. Brandon, 45 Ohio St.3d 85, 86, 543 N.E.2d 501(1989).

(Citing Scott v. Illinois, 440 U .S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383(1979)).
Fairfield County, Case No. 12-CA-33                                                      9


       {¶34} Further, there is no evidence that Bode was given a term of incarceration

which was unconditionally suspended. There is no evidence that the juvenile court

reserved the right to reinstate suspended time in the future. Bode was not placed on

any probation or community control sanction that could subject him to incarceration in

the future as punishment for his juvenile OVI conviction. Accordingly, Bode did not

suffer any actual incarceration or the threat of future incarceration on his juvenile OVI

conviction.

       {¶35} Therefore, because Bode’s prior uncounseled misdemeanor conviction in

the juvenile case did not result in incarceration or a suspended sentence it is valid under

Scott, and thus, it may be used to enhance a subsequent conviction. Nichols v. U.S.,

511 U.S. 738, 749, 114 S.Ct. 1921, 128 L.Ed.2d 745(1994).

       {¶36} Bode’s first assignment of error is overruled.

                                                   II.

       {¶37} In his second assignment of error, Bode contends the trial court erred in

overruling his motion to dismiss on speedy trial grounds. Specifically, Bode filed a

motion to dismiss Counts one, two and three of the Indictment because the state failed

to bring Bode to trial within the statutory speedy trial limits.

       {¶38} The right to a speedy trial is guaranteed by the Sixth Amendment to the

United States Constitution and Section 10, Article I of the Ohio Constitution. Pursuant to

these constitutional mandates, R.C. 2945.71 through R.C. 2945.73 prescribes specific

time requirements within which the State must bring an accused to trial. State v. Baker,

78 Ohio St.3d 108, 110, 1997–Ohio–229, 676 N.E.2d 883. R.C. 2945.71 provides, in

pertinent part:
Fairfield County, Case No. 12-CA-33                                                    10


             (C) A person against whom a charge of felony is pending:

             (2) Shall be brought to trial within two hundred seventy days after

      the person's arrest.

             ***

             (D) A person against whom one or more charges of different

      degrees, whether felonies, misdemeanors, or combinations of felonies and

      misdemeanors, all of which arose out of the same act or transaction, are

      pending shall be brought to trial on all of the charges within the time period

      required for the highest degree of offense charged, as determined under

      divisions (A), (B), and (C) of this section.

             (E) For purposes of computing time under divisions (A), (B), (C)(2),

      and (D) of this section, each day during which the accused is held in jail in

      lieu of bail on the pending charge shall be counted as three days. This

      division does not apply for purposes of computing time under division

      (C)(1) of this section.

      {¶39} Subsequent charges made against an accused are subject to the same

speedy-trial constraints as the original charges, if the additional charges arose from the

same facts as the first indictment. State v. Adams, 43 Ohio St.3d 67, 68, 538 N.E.2d

1025, 1027 (1989). However, the state is not subject to the speedy-trial timetable of the

initial indictment when additional criminal charges arise from facts different from the

original charges, or the state did not know of these facts at the time of the initial

indictment. Baker, supra, at syllabus.
Fairfield County, Case No. 12-CA-33                                                       11


        {¶40} As set forth in the trial court's decision, for purposes of Bode's speedy trial

claim, the state and Bode agreed and conceded the speedy trial dispute was limited to a

period of 17 days, running from February 13, 2012 to March 1, 2012.

        {¶41} Bode submits he was entitled to have all of the 17 days subjected to the

triple count provisions of R.C. 2945.71(E), which would put the speedy trial calculation

over 270 days. However, the State argued that the triple count provisions of R.C.

2945.71(E) only applied for three days (February 13 through February 16, 2012). The

State argued the remaining 14 days should not be tripled, in spite of the fact that Bode

was in jail, because the multiple counts in the single Indictment were severed into two

separate trials on February 16, 2012.

        {¶42} The trial court agreed with the state’s argument that Bode was not entitled

to the triple count provisions of R.C. 2945.71(E) because the cases were severed.

        {¶43} The trial judge’s handwritten notation contained within the Pretrial Entry:

Criminal Case filed February 22, 2102 states,

               State has made oral motion for separate trial date re Counts 1, 2 &

        3 from Counts 4 & 5. Defense does not object. Motion sustained.

        {¶44} In the case at bar, Counts one, two and three arise from Bode’s arrest on

a charge of OVI on May 28, 2011. Bode was released on bond in this case on May 30,

2011.

        {¶45} Counts four and five arise from Bode’s arrest on a charge of OVI on

December 29, 2011. Bond was set at $10,000.00 secured and $5,000.00 unsecured.

(State’s Exhibit B, Fairfield Municipal Court docket, Case Number CRA1103348).

However, a probation violation holder was placed on Bode. (State’s Exhibit C, Fairfield
Fairfield County, Case No. 12-CA-33                                                    12


Municipal Court Case Number CRB092086A). By entry filed December 30, 2011, the

trial court found probable cause and ordered Bode held without bail. (Id.)

      {¶46} The incidents leading to the two separate arrests occurred nearly seven

months apart. The charges clearly do not arise from a single incident or course of

conduct. State v. Dach, 11th Dist. Nos. 2005-T-0048, 2005-T-0054, 2006-Ohio-3428,

¶31; State v. Sydnor, 4th Dist. No. 10CA3359, 2011-Ohio-3922, ¶23. The court granted

the motion to sever the charges on February 16, 2012. At this point, Bode was no

longer held in jail on solely the charges in Counts one, two and three, as the charges

were severed from the remaining charges. The triple count provision applies only when

the defendant is being held in jail solely on the pending charge. State v. Sanchez, 110

Ohio St.3d 274, 277, 853 N.E.2d 283, 2006-Ohio-4478. Thus, the triple-count provision

does not apply when a defendant is being held in custody pursuant to other charges. Id.

Therefore, once Counts one, two and three, which involve the May 28, 2011 arrest,

were severed from the Counts four and five, which involved the December 29, 2011

arrest, Bode was no longer held in jail solely on Counts one, two and three and the triple

count provision no longer applied. State v. Kasler, 5th Dist. No. 11-CA-59, 2012-Ohio-

6073, ¶46.

      {¶47} Therefore, Bode’s pretrial incarceration on the multiple charges does not

constitute incarceration on the “pending charge” for the purposes of the triple-count

provision of the speedy-trial statute, R.C. 2945.71(E).

      {¶48} Bode’s second assignment of error is overruled.
Fairfield County, Case No. 12-CA-33                                                    13


                                                III.

      {¶49} In his third assignment of error, Bode makes two claims. First, the trial

court could not sentence him for felony OVI's and could not sentence him on the

specifications contined in the Indictment because his juvenile adjudication for OVI is not

an “equivalent offense." Second Bode argues that the trial court's sentence for both the

felony OVI's and the specifications violated his protection against double jeopardy.

                 A. Juvenile adjudication for OVI as an equivalent offense.

      {¶50} In State v. Adkins, 129 Ohio St.3d 287, 2011-Ohio-3141, 951 N.E.2d 766,

the Ohio Supreme Court noted,

             R.C. 4511.19(G)(1)(d) employs a 20–year look-back to previous

      convictions and enhances an OVI charge if a defendant has five or more

      previous, similar violations: “[A]n offender who, within twenty years of the

      offense, previously has been convicted of or pleaded guilty to five or more

      violations of that nature is guilty of a felony of the fourth degree.”

             Effective January 1, 1996, R.C. 2901.08 includes prior juvenile

      adjudications as previous convictions for purposes of enhancement of

      subsequent charges:

             “(A) If a person is alleged to have committed an offense and if the

      person previously has been adjudicated a delinquent child or juvenile

      traffic offender for a violation of a law or ordinance, * * * the adjudication

      as a delinquent child or as a juvenile traffic offender is a conviction for a

      violation of the law or ordinance for purposes of determining the offense

      with which the person should be charged and, if the person is convicted of
Fairfield County, Case No. 12-CA-33                                                    14


       or pleads guilty to an offense, the sentence to be imposed upon the

       person relative to the conviction or guilty plea.”

              Although Ohio juvenile proceedings do not result in criminal

       convictions—a juvenile court proceeding is a civil action, In re Anderson

       (2001), 92 Ohio St.3d 63, 748 N.E.2d 67, syllabus, and juveniles are

       “adjudicated delinquent” rather than “found guilty,” State v. Hanning

       (2000), 89 Ohio St.3d 86, 89, 728 N.E.2d 1059—R.C. 2901.08 provides

       that an offender's juvenile adjudication for OVI-type offenses can be used

       against him under the five-convictions threshold of R.C. 4511.19(G)(1)(d).

       Id. at ¶¶ 8-10.

       {¶51} Bode was adjudicated a juvenile traffic offender for a violation of 4511.19.

Applying R.C. 2901.08(A) and Adkins , this adjudication is a conviction for a violation of

4511.19 for purposes of determining that Bode should be charged and sentenced under

4511.19(G)(1)(d) for a felony of the fourth degree.

                                       B. Double jeopardy

       {¶52} Bode next argues in sentencing Bode on the OVI and the specifications

for the exact same conduct, the trial court imposed multiple punishments for the same

conduct in violation of the prohibition against double jeopardy.

       {¶53} The Double Jeopardy Clause of the Fifth Amendment, made applicable to

the states through the Fourteenth Amendment, provides that no person shall “be subject

for the same offence to be twice put in jeopardy of life or limb.” U.S. CONST. amend. V.

It is well settled, however, that sentence enhancement provisions do not subject a

defendant to multiple punishments for the same offense. Witte v. United States, 515
Fairfield County, Case No. 12-CA-33                                                    15

U.S. 389, 399, 115 S.Ct. 2199, 2206, 132 L.Ed.2d 351 (1995) (citing Gryger v. Burke,

334 U.S. 728, 732, 68 S.Ct. 1256, 1258-59, 92 L.Ed. 1683 (1948)).

      {¶54} In Monge v. California, the Unites States Supreme Court noted although

the Constitution prohibits multiple criminal punishments for the same offense, double

jeopardy principles generally have no application in the sentencing context,

             Historically,   we   have   found    double    jeopardy    protections

      inapplicable to sentencing proceedings, see Bullington, 451 U.S., at 438,

      101 S.Ct., at 1857-1858, because the determinations at issue do not place

      a defendant in jeopardy for an “offense,” see, e.g., Nichols v. United

      States, 511 U.S. 738, 747, 114 S.Ct. 1921, 1927, 128 L.Ed.2d 745 (1994)

      (noting that repeat-offender laws “‘penaliz[e] only the last offense

      committed by the defendant’”). Nor have sentence enhancements been

      construed as additional punishment for the previous offense; rather, they

      act to increase a sentence “because of the manner in which [the

      defendant] committed the crime of conviction.” United States v. Watts, 519

      U.S. 148, 154, 117 S.Ct. 633, 636, 136 L.Ed.2d 554 (1997) ( per curiam);

      see also Witte v. United States, 515 U.S. 389, 398-399, 115 S.Ct. 2199,

      2205-2206, 132 L.Ed.2d 351 (1995). An enhanced sentence imposed on a

      persistent offender thus “is not to be viewed as either a new jeopardy or

      additional penalty for the earlier crimes” but as “a stiffened penalty for the

      latest crime, which is considered to be an aggravated offense because a

      repetitive one.” Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258,

      92 L.Ed. 1683 (1948); cf. Moore v. Missouri, 159 U.S. 673, 678, 16 S.Ct.
Fairfield County, Case No. 12-CA-33                                                 16


      179, 181, 40 L.Ed. 301 (1895) (“[T]he State may undoubtedly provide that

      persons who have been before convicted of crime may suffer severer

      punishment for subsequent offences than for a first offence”).

524 U.S. 727, 728, 118 S.Ct. 2246, 141 L.Ed.2d 615(1998). Of relevance to Bode’s

case, the Court has specifically made clear that sentence enhancement is not double

punishment,

               In Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128

      L.Ed.2d 745 (1994), we explained that “‘[t]his Court consistently has

      sustained repeat-offender laws as penalizing only the last offense

      committed by the defendant.’” Id., at 747, 114 S.Ct. 1921 (quoting *386

      Baldasar v. Illinois, 446 U.S. 222, 232, 100 S.Ct. 1585, 64 L.Ed.2d 169

      (1980) (Powell, J., dissenting)). When a defendant is given a higher

      sentence under a recidivism statute—or for that matter, when a

      sentencing judge, under a guidelines regime or a discretionary sentencing

      system, increases a sentence based on the defendant's criminal history—

      100% of the punishment is for the offense of conviction. None is for the

      prior convictions or the defendant's “status as a recidivist.” The sentence

      “is a stiffened penalty for the latest crime, which is considered to be an

      aggravated offense because [it is] a repetitive one.” Gryger v. Burke, 334

      U.S. 728, 732, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948).

      {¶55} United States v. Rodriquez, 553 U.S. 377, 385, 128 S.Ct. 1783, 170

L.Ed.2d 719 (2008). Rodriquez's rationales apply with equal force in the context of

Bode’s case.
Fairfield County, Case No. 12-CA-33                                                     17


       {¶56} Accordingly, Bode’s third assignment of error is overruled.

                                               IV.

       {¶57} On December 29, 2011, a probation holder was placed on Bode by the

Fairfield County Municipal Court probation officer supervising him. The following day,

the municipal court found probable cause to revoke his probation and ordered him held

without bond pending a hearing. On January 23, 2012, the municipal court revoked

Bode’s probation and ordered him to serve 30 days in jail, with credit for the 25 days he

had already served.

       {¶58} In his fourth assignment of error, Bode contends since the 30-day jail

sentence on the revocation was for a misdemeanor violation, and Bode was sentenced

by the trial court in this case to multiple felonies, the two sentences should be served

concurrent to each other and, therefore, Bode should have been granted credit for the

30 days he served against the ultimate prison sentence imposed by the trial court on the

felony convictions.

       {¶59} Although it is the adult parole authority's duty to reduce the term of

incarceration by the number of days served prior to sentencing, it is the responsibility of

the sentencing court to properly calculate the amount of days for which such credit may

be extended. State ex rel. Corder v. Wilson, 68 Ohio App.3d 567, 589 N.E.2d

113(1991); State v. Barkus, 5th Dist. No. 2002 CA 0052, 2003-Ohio-1757 at ¶ 12.

       {¶60} R.C. 2967.191 requires that an offender's prison term be reduced “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 [.]”
Fairfield County, Case No. 12-CA-33                                                       18


       {¶61} R.C. 2949.12, which addresses the calculation of time, conveyance, and

incarceration assignments of convicted felons exclusively, is also applicable here. This

section states that the prisoner's sentencing order should also reflect, “ * * * pursuant to

section 2967.191 of the Revised Code * * * the total number of days, if any, that the

felon was confined for any reason prior to conviction and sentence.” R.C. 2949.12.

(Emphasis added).

       {¶62} In State v. Olmstead, this court observed,

              The Court of Appeals for Franklin County has recognized the

       difficulty in calculating jail-time credit when a defendant had both a

       probation violation and a new criminal charge, “[a]lthough 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. Generally speaking, days served following 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. In

       addition, a defendant is not entitled to jail-time credit for any period of

       incarceration arising from facts that are separate or distinguishable from

       those on which the current (or previous) sentence was based. See, e.g.,

       State v. Smith (1992), 71 Ohio App. 3d 302, 304; State v. Mitchell, Lucas

       App. No. L-05-1122, 2005-Ohio-6138, at ¶ 8. A sentence for any offense

       committed after the offense on which the defendant's probation is based is

       not entitled to jail-time credit. Id.; State ex rel. Gillen v. Ohio Adult Parole
Fairfield County, Case No. 12-CA-33                                                    19

      Auth. (1995), 72 Ohio St.3d 381; State v. Peck, Franklin App. No. 01AP-

      1379, 2002-Ohio-3889. This is an important distinction because a

      probation violation usually occurs when the defendant commits a new

      crime. For example, a first offender is convicted of petty theft pursuant to a

      shoplifting incident. If the court sentences that defendant to six months in

      jail, and suspends the sentence in lieu of a period of one years [sic]

      probation, the defendant will go free. During the months that follow, if that

      same defendant is arrested for OVI, he will likely not be permitted to be

      released on bail because the jail will place a probation hold on the

      prisoner. Irrespective of the OVI charge, which would ordinarily allow the

      defendant to post bail and be released, under these circumstances, the

      defendant would have to be taken before the trial judge who sentenced

      him on the theft charge. Whatever time the defendant spent in jail between

      his arrest and the probation violation hearing could only be credited

      towards the sentence for the theft conviction.” State v. Chafin, Franklin

      App. No. 06AP-1108, 2007-Ohio-1840 at ¶ 9.

      {¶63} The 30 days, which Bode contends he should have received credit for,

were a sentence for an offense separate and apart from the one for which the trial court

imposed a felony sentence in this case. Bode did receive credit for all 30 days on the

probation violation misdemeanor case. That sentence was completed before Bode was

sentenced under the felony convictions.
Fairfield County, Case No. 12-CA-33                                                20


       {¶64} Accordingly, we conclude that the trial court did not err by denying Bode

credit for jail time served on the misdemeanor probation violation against his

subsequent, unrelated felony sentence.

       {¶65} Bode’s fourth assignment of error is overruled.

       {¶66} For the foregoing reasons, the judgment of the Court of Common Pleas of

Fairfield County, Ohio, is affirmed.



By Gwin, P.J.,

Hoffman, J., and

Farmer, J., concur



                                             _________________________________
                                             HON. W. SCOTT GWIN


                                             _________________________________
                                             HON. WILLIAM B. HOFFMAN


                                             _________________________________
                                             HON. SHEILA G. FARMER


WSG:clw 0429
[Cite as State v. Bode, 2013-Ohio-2134.]


              IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
JASON T. BODE                                     :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 12-CA-33




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Fairfield County, Ohio, is affirmed. Costs to

appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN


                                                      _________________________________
                                                      HON. WILLIAM B. HOFFMAN


                                                      _________________________________
                                                      HON. SHEILA G. FARMER
