[Cite as State v. Williams, 2016-Ohio-8049.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104155



                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                             LAMAR E. WILLIAMS, JR.
                                                     DEFENDANT-APPELLANT




                               JUDGMENT:
                   AFFIRMED IN PART, REVERSED IN PART,
                             AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-14-590579-A

        BEFORE: Boyle, J., E.A. Gallagher, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: December 8, 2016
FOR APPELLANT

Lamar E. Williams, Jr.
Inmate No. A674-657
Lake Erie Correctional Institution
501 Thompson Road
P.O. Box 8000
Conneaut, Ohio 44030


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Jeffrey Michael Heller
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:

       {¶1} Defendant-appellant, Lamar Williams, appeals from a judgment denying his

motion for jail-time credit.   He raises one assignment of error for our review:

       The trial court erred by denying the appellant’s motion for jail[-] time credit
       when the appellant was due an additional 176 days of jail-time credit.

       {¶2} While we disagree with Williams’s argument that he failed to receive

jail-time credit, we find that the trial court erred when it ordered the sheriff to calculate

the amount of jail-time credit rather than do so itself. Thus, we affirm in part, reverse in

part, and remand for the trial court to calculate the amount of jail-time credit that

Williams was entitled to.

I. Procedural History

       {¶3} In May 2014, Williams was indicted on domestic violence charges in

Cuyahoga C.P. No. CR-14-584145-A. On July 29, 2014, Williams pleaded guilty to an

amended indictment of first-degree misdemeanor assault in violation of R.C. 2903.13(A).

 The trial court sentenced him to six months in jail, suspended his jail term, and ordered

him to serve one year of probation.

       {¶4} In October 2014, Williams was indicted in Cuyahoga C.P. No.

CR-14-590579-A on five counts, including aggravated burglary, kidnapping, attempted

felonious assault, assault, and vandalism. Williams was not arrested and placed in jail

until May 27, 2015.

       {¶5} On May 29, 2015, the trial court placed a probation holder on Williams in

Case No. CR-14-584145-A “until disposition of new case.”
         {¶6} On November 20, 2015, Williams pleaded guilty in Case No.

CR-14-590579-A to an amended indictment of attempted burglary in violation of R.C.

2923.02 and 2911.12(B), assault in violation of R.C. 2903.13(A), and vandalism in

violation of R.C. 2909.05(A). The trial court held a sentencing hearing on the same day

as the plea hearing on Case No. CR-14-590579-A, as well as the probation violation case,

Case No. CR-14-584145-A.

         {¶7} In Case No. CR-14-590579-A, the trial court sentenced Williams to one

year for attempted burglary, six months for assault, and one year for vandalism, all to be

served concurrent to each other, for an aggregate prison sentence of one year.        The trial

court further advised Williams that he would be subject to a discretionary period of three

years of postrelease control.   Regarding jail-time credit, the trial court stated: “Jail credit

days to be calculated by the sheriff.       All time served is to be credited to PV in

CR-14-584145.”

         {¶8} In Case CR-14-584145-A, the trial court issued the following judgment

entry:

         Defendant, Lamar E. Williams, in open court represented by counsel for
         hearing on alleged probation violation. Hearing had. Court finds
         defendant, Lamar E. Williams, to be a probation violator in this case.
         Defendant’s probation is terminated without imposition of sentence.

         {¶9} In January 2015, Williams filed a motion for jail-time credit in Case No.

CR-14-590579-A. The trial court denied Williams’s motion, stating: “Defendant was

notified at the time of sentencing that all jail time credit was to be credited to the case the

defendant was on probation for at the time of sentencing.” It is from this judgment that
Williams now appeals.

II. Standard of Review

       {¶10} R.C. 2953.08(G)(2) provides that our review of a defendant’s sentence is not

an abuse of discretion.       An appellate court must “review the record, including the

findings underlying the sentence or modification given by the sentencing court.”    Id.   If

an appellate court clearly and convincingly finds either that (a) “the record does not

support the sentencing court’s findings under division (B) or (D) of section 2929.13,

division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the

Revised Code, whichever, if any, is relevant”; or (b) “the sentence is otherwise contrary

to law,” then “the appellate court may increase, reduce, or otherwise modify a sentence *

* * or may vacate the sentence and remand the matter to the sentencing court for

resentencing.” Id. See also State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59

N.E.3d 1231.

III. Jail-Time Credit

       {¶11} Williams argues that the trial court erred by not awarding him 176 days of

jail-time credit.   Williams maintains that although the trial court stated that jail-time

credit be applied to his probation violation case, that case was terminated.       Thus, he

maintains that he is still entitled to jail-time credit.

       {¶12} The practice of awarding jail-time credit, although now covered by state

statute, has its roots in the Equal Protection Clauses of the Ohio and United States

Constitutions. State v. Fugate, 117 Ohio St.3d 261, 2009-Ohio-856, 883 N.E.2d 440, ¶
7.   The rationale for giving jail-time credit “is quite simple[;] [a] person with money will

make bail while a person without money will not.” Id. at ¶ 25 (Stratton, J., concurring).

That means for “two equally culpable codefendants who are found guilty of multiple

offenses and receive identical concurrent sentences,” the poorer codefendant will serve

more time in jail than the wealthier one who was able to post bail. Id. at ¶ 25-26.

“[T]he Equal Protection Clause does not tolerate disparate treatment of defendants based

solely on their economic status.”   Id. at ¶ 7.

       {¶13} In Ohio, this principle is codified in R.C. 2967.191, which provides in

relevant part:

       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 * * * as determined by the sentencing court under
       division (B)(2)(g)(i) of section 2929.19 of the Revised Code[.]

       {¶14} R.C. 2929.19(B)(2)(g)(i) states that

       [I]f the sentencing court determines at the sentencing hearing that a prison
       term is necessary or required, the court shall * * * [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 and by which the department of
       rehabilitation and correction must reduce the stated prison term under
       section 2967.191 of the Revised Code. * * *

       {¶15} “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. Chafin, 10th Dist. Franklin No. 06AP-1108,
2007-Ohio-1840, ¶ 9.       According to R.C. 2967.191, 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. DeMarco, 8th Dist.

Cuyahoga No. 96605, 2011-Ohio-5187, ¶ 10. Thus, R.C. 2967.191 is inapplicable when

the offender is imprisoned as a result of another unrelated offense. State v. Williams,

126 Ohio App.3d 398, 399, 710 N.E.2d 729 (2d Dist.1998). This means that there is

no jail-time credit for time served on unrelated offenses, even if that time served runs

concurrently during the predetention phase of another matter. See State v. Cook, 7th

Dist. Mahoning No. 00CA184, 2002-Ohio-7170, ¶ 17.

       {¶16} In DeMarco, the defendant argued that the trial court erred by not awarding

him jail-time credit.   This court, however, affirmed the trial court’s judgment sentencing

the defendant for domestic violence on the newer case without jail-time credit because he

had been incarcerated simultaneously for violating the terms of his community control in

an older case and for the new charge of domestic violence.    Id. at ¶ 11.

       {¶17} In support of his claim that he did not receive jail-time credit, Williams

points to the fact that in the trial court’s November 20, 2015 judgment entry in Case No.

CR-14-590579-A (the newer case), the trial court stated in relevant part that “[a]ll time

served is to be credited to PV in CR-14-584145.” Williams argues, however, that he did

not receive his time served because the trial court terminated case CR-14-584145-A.

Thus, he asserts that he is entitled to 176 more days of time served. We disagree.

       {¶18} This case is directly on point with State v. Maddox, 8th Dist. Cuyahoga No.
99120, 2013-Ohio-3140. In Maddox, the defendant was charged with committing new

offenses while he was on probation in several other cases.    At a joint sentencing hearing

on the new case and the probation violation cases, the trial court stated: “‘I’ll terminate

probation without imposition of the original sentence,’ but ‘the jail-time credit is credited

to those cases only. You’re doing 17 years from today.’”         Id.   at ¶ 18.   This court

stated upheld the trial court’s sentence, stating:

       Maddox stipulated to probation violations in several cases. In exchange
       for Maddox’s stipulation, the trial court terminated Maddox’s probation and
       stated that all jail-time credit would be applied to the probation violations.
       So rather than sentence Maddox to additional time for his probation
       violations, the trial court essentially sentenced Maddox to time served for
       those violations (i.e., the amount of time he spent in jail once he was
       arrested on the new charges, simultaneously violating his probation in
       several cases).

Id. at ¶ 18.

       {¶19} In the present case, Williams was incarcerated simultaneously for violating

his probation in Case No. CR-14-584145-A and for committing the new offenses in Case

No. CR-14-590579-A. After finding that Williams violated his probation in Case No.

CR-14-584145-A, the trial court essentially sentenced him to time served when it applied

the jail-time credit to this case and then terminated Williams’s probation.   Thus, we find

no error on the part of the trial court because it had the authority to apply the jail-time

credit to the probation violation case because Williams was in jail on that case and the

newer case simultaneously.

       {¶20} We note, however, as the state points out, the trial court failed to comply

with R.C. 2929.19(B)(2)(g)(i) in that the court did not determine the proper jail-time
credit, did not notify the offender of the days at sentencing, and did not include the

calculated time in its sentencing entry. Instead, the trial court ordered the sheriff to

calculate jail-time credit. But it is the trial court’s duty to do so. State v. Fitzgerald,

8th Dist. Cuyahoga No. 98723, 2013-Ohio-1893, ¶ 6 (Boyle, J., concurring).

Accordingly, we reverse and remand for the trial court to properly calculate jail-time

credit. State v. Barker, 8th Dist. Cuyahoga No. 93574, 2010-Ohio-4480, ¶ 18.

       {¶21} Judgment affirmed in part, reversed in part, and remanded to the lower court

for further proceedings consistent with this opinion.

       It is ordered that appellant and appellee share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed in part, any bail pending appeal is terminated.    Case remanded to the trial

court for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE

EILEEN A. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
