      [Cite as State v. Bailey, 2016-Ohio-7249.]


                        IN THE COURT OF APPEALS OF OHIO
                           FOURTH APPELLATE DISTRICT
                               HIGHLAND COUNTY

STATE OF OHIO,                                     :
                                                   :    Case No. 16CA1
      Plaintiff-Appellee,                          :
                                                   :
      vs.                                          :    DECISION AND JUDGMENT
                                                   :    ENTRY
DAVID BAILEY,                                      :
                                                   :
      Defendant-Appellant.                         :    Released: 09/29/16

                                         APPEARANCES:

David Bailey, Chillicothe, Ohio, Pro Se Appellant.

Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for Appellee.


McFarland, J.

      {¶1} David Bailey appeals the January 4, 2016 entry of the Highland County

Court of Common Pleas which denied his motion for jail time credit. Appellant

seeks jail time credit against his sentence of eight years mandatory incarceration

after a jury found him guilty of four counts of child endangering. On appeal,

Bailey asserts that in failing to grant his motion, the trial court abused its discretion

and acted contrary to law, which denied him due process and equal protection of

the law in violation of the 5th, 8th, and 14th Amendments to the United States

Constitution. Having reviewed the record, we find no merit to Appellant’s
Highland App. No. 16CA1                                                                                    2

argument. As such, we overrule the sole assignment of error and affirm the

judgment of the trial court.

                       FACTUAL AND PROCEDURAL BACKGROUND

           {¶2} On September 30, 2010, Appellant was arrested for felonious assault of

his girlfriend, Casey Scarberry. Appellant was lodged in the Highland County

Justice Center on a $100,000.00 bond. On October 4, 2010, Appellant was

charged with four counts of endangering children and one count of illegal

manufacture of drugs. He was again given a $100,000.00 bond on each of the new

counts. On October 14, 2010, he waived his right to a preliminary hearing on all

charges and the cases were bound over to the Highland County Grand Jury.

           {¶3} On November 2, 2010, the Grand Jury indicted Appellant for felonious

assault in Highland County Case Number 10CR236. Also on that date, by separate

indictment, he was indicted for the illegal manufacture and child endangering

counts.1 That case was assigned Highland County Case Number 10CR221.

           {¶4} On January 10, 2011, Appellant pleaded guilty to a reduced charge of

misdemeanor assault in the felonious assault case, 10CR236. He was sentenced to

180 days of jail incarceration. He was also given jail time credit which began on

October 1, 2010.




1
    Casey Scarberry was Appellant’s co-defendant in the illegal manufacture and child endangering cases.
Highland App. No. 16CA1                                                         3

      {¶5} On February 10, 2011, Appellant proceeded to trial on the illegal

manufacture and child endangering counts. The jury returned verdicts of guilty on

all child endangering counts. Appellant was acquitted of the illegal manufacture

count. Appellant’s convictions for child endangering were affirmed by this Court

in State v. Bailey, 4th Dist. Highland No. 11CA7, 2011-Ohio-6526.

      {¶6} On March 19, 2015, Appellant filed a motion for resentencing based on

void judgment in Case Number 10CR221, the child endangering cases. On May

14, 2015, the trial court overruled his motion for resentencing. On December 28,

2015, Appellant filed a request for additional jail time credit in the child

endangering cases. On January 4, 2016, the trial court denied Appellant’s motion

for jail time credit. In its decision, the trial court found that Appellant’s argument

was barred by res judicata. The trial court also found:

      “Further, the evidence Attached to this entry and incorporated herein
      by reference is a notice from the Highland County Sheriff’s
      Department indicating that the Defendant was not entitled to any jail
      time credit because he was serving time for another case and all time
      that he was serving was credited to that misdemeanor conviction.
      Thus, he is not entitled to have that time credited to this sentence.”

      {¶7} This appeal followed.

                            ASSIGNMENT OF ERROR

      “I. THE TRIAL COURT ABUSED IT’S (SIC) DISCRETION AND
      DENIED THE APPELLANT DUE PROCESS, AND EQUAL
      PROTECTION OF THE LAW WHEN IT FAILED TO GRANT
      APPELLANT HIS JAIL TIME CREDIT IN VIOLATION OF THE
Highland App. No. 16CA1                                                                                   4

        5TH, 8TH, AND 14TH AMENDMENTS TO THE UNITED
        STATES CONSTITUTIONS (SIC).”

                                      STANDARD OF REVIEW

        {¶8} R.C. 2953.08(G)(2) specifies that an appellate court may increase,

reduce, modify, or vacate and remand a challenged felony sentence if the court

clearly and convincingly finds either that “the record does not support the

sentencing court's findings” under the specified statutory provisions or “the

sentence is otherwise contrary to law.” State v. Pulliam, 4th Dist. Scioto No.

14CA3609, 2015-Ohio-759, ¶ 5; State v. Copas, 2015-Ohio-5362, 49 N.E.3d 755

(4th Dist.), ¶ 11.

                                           LEGAL ANALYSIS

        {¶9} Appellant argues that after he was charged with child endangering, he

was given no jail time credit upon sentencing for the child endangering charges,

and that he is entitled to an additional 126 days of jail time credit under the

circumstances of his case.2 R.C. 2967.191 provides:

        “The department of rehabilitation and correction shall reduce the
        stated prison term of a prisoner * * * by the total number of days that
        the prisoner was confined for any reason arising out of the offense for
        which the prisoner was convicted and sentenced, including
        confinement in lieu of bail while awaiting trial, confinement for
        examination to determine the prisoner's competence to stand trial or
        sanity, confinement while awaiting transportation to the place where
        the prisoner is to serve the prisoner's prison term * * *.”
2
 By our calculation, the period of Appellant’s confinement at the Highland County Justice Center beginning
October 1, 2010 and January 10, 2011, the day he pled to the misdemeanor assault, is 102 days. The period of time
between October 1, 2010 and February 10, 2011, when he was sentenced on the felony convictions, is 133 days.
Highland App. No. 16CA1                                                          5

      {¶10} Appellant did not raise this argument in his direct appeal in 2011. We

begin by addressing a procedural issue which relates to the trial court’s finding that

Appellant’s argument is barred by the doctrine of res judicata. In State v. Copas,

supra, this Court recently discussed the doctrine of res judicata as applied to the

issue of jail time credit. We observed:

      “R.C. 2929.19(B)(2)(g)(iii) provides, inter alia, a ‘sentencing court
      retains continuing jurisdiction to correct any error not previously
      raised at sentencing in making a determination [of the appropriate jail-
      time credit] * * * The offender may, at any time after sentencing, file
      a motion in the sentencing court to correct any error made in making a
      determination[.]’ (Emphasis added.) Copas, supra, at ¶ 11. In several
      recent cases, this Court held that this statute applies only to correct
      ‘mathematical errors,’ rather than to correct alleged legal errors. See
      e.g. State v. Bender, 4th Dist. Gallia Nos. 14CA6, 14CA7, 2015-Ohio-
      1927, at ¶¶ 8-9; also see State v. Carpenter, 4th Dist. Lawrence No.
      14CA13, 2014-Ohio-5698, ¶¶ 15-16.”

      {¶11} However, in Copas, we cited State v. Quarterman, 8th Dist. Cuyahoga

No. 101064, 2014-Ohio-5796, at ¶ 8, wherein the Eighth District held:

      “Amended R.C. 2929.19(B)(2)(g)(iii) marks a significant change in
      the law regarding jail-time credit. Previously, inmates could only
      challenge errors in jail-time credit on direct appeal unless the error
      consisted of a mathematical mistake in calculation rather than an
      erroneous legal determination. See e.g. State v. Robinson, 4th Dist.
      Scioto No. 00 CA 2698, 2000 WL 1617952 (Oct. 23, 2000). R.C.
      2929.19(B)(2)(g)(iii) now allows the court to correct “any error,”
      regardless of whether the error involved a mathematical
      miscalculation or an erroneous legal determination * * *.”

      {¶12} In Copas, at ¶ 12, we pointed out that Subpart (iii) is of relatively

recent vintage, and added to R.C. 2929.19(B)(2)(g) by Am. Sub. S.B. 3, see 2012
Highland App. No. 16CA1                                                          6

Ohio Laws File 131, effective on September 28, 2012. We observed, as the Eighth

and Tenth Districts have pointed out, the dichotomy between “mathematical” and

“legal” errors pre-existed the enactment of R.C. 2929.19(B)(2)(g)(iii). We also

expressed doubt that the legislature would have enacted this part of Am. Sub. S.B.

3 with an intent to keep the law the same. Finally, we noted Subpart (iii) of the

statute permits a defendant to file a motion to correct “any error” in his jail time

credit determination. “This Court has held that the word ‘any’ means ‘all.’ ”

Copas, supra; Cales v. Armstrong World Industries, Inc., 4th Dist. Scioto No.

02CA2851, 2003-Ohio-1776, at ¶ 17, fn. 8. Thus, we reasoned if a trial court has

continuing jurisdiction to consider “any” and “all” errors, it must have continuing

jurisdiction to consider both mathematical and legal errors. Copas, supra. We

concluded at ¶ 13:

      “For these reasons, and after enactment of Am. Sub. S.B. 3, we
      conclude that Bender and Carpenter were erroneously decided with
      respect to the issue of whether res judicata continues to apply to
      motions to re-determine jail time credit. Therefore, we overrule those
      cases and now turn to the merits of appellant's first assignment of
      error.”

      {¶13} Appellant, as did Copas, makes an equal protection argument and

relies on State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440. In

Fugate, the Supreme Court of Ohio held at the syllabus that if “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.” In Copas,
Highland App. No. 16CA1                                                           7

at ¶ 19, we observed the Supreme Court’s explanation of the underlying principle

behind Fugate:

      “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. Recognizing that the Equal
      Protection Clause does not tolerate disparate treatment of defendants
      based solely on their economic status, the United States Supreme
      Court has repeatedly struck down defendants based solely on their
      inability to pay fines and fees. See Griffin v. Illinois (1956), 351 U.S.
      12, 76 S.Ct. 585, (a state cannot deny appellate review to defendants
      unable to afford a transcript); Williams v. Illinois (1970), 399 U.S.
      235, 90 S.Ct. 2018, (a state may not imprison a defendant beyond the
      statutory maximum based solely on his inability to pay a fine); Tate v.
      Short (1971), 401 U.S. 395, 91 S.Ct. 668, (a state may not impose a
      fine as a sentence dand [sic ] then automatically convert it to jail time
      based upon the defendant's inability to immediately pay the fine).
      Relying on the principle set forth in such cases, courts have held that
      defendants who are unable to afford bail must be credited for the time
      they are confined and awaiting trial. ‘The Equal Protection Clause
      requires that all time spent in any jail prior to trial and commitment by
      [a prisoner who is] unable to make bail because of indigency must be
      credited to his sentence.’ Workman v. Cardwell (N.D.Ohio 1972), 338
      F.Supp. 893, 901, vacated in part on other grounds (C.A.6, 1972), 471
      F.2d 909. See also White v. Gilligan (S.D.Ohio 1972), 351 F.Supp.
      1012.” [117 Ohio St.3d 261,] 2008-Ohio-856 [883 N.E.2d 440], at
      ¶ 7.”

      ***

      “The Ohio Supreme Court further stated that this ‘principle is codified
      in Ohio at R.C. 2967.191, which states that “[t]he 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 [.]’ (Emphasis added.) 117 Ohio St.3d 261,
      2008-Ohio-856, 883 N.E.2d 440, at ¶ 8.”
Highland App. No. 16CA1                                                          8

      {¶14} In Copas, we emphasized that appellant was not held in jail on new

charges for which he was unable to make bond. Thus, we found no Equal

Protection violation and declined to extend Fugate beyond the pertinent facts in

that case. We concluded by pointing out that Fugate does not negate the

proposition that R.C. 2967.191 does not entitle a defendant to jail credit for

incarceration on unrelated offenses. (Emphasis added.) Copas, supra, at ¶ 20. See

State v. Primack, 4th Dist. Washington No. 13CA23, 2014-Ohio-1771, at ¶¶ 1 &

11; State v. Lowe, 8th Dist. Cuyahoga No. 99176, 2013-Ohio-3913, at ¶ 29; State v.

Bainter, 6th Dist. Ottawa No. OT-08-002, 2009-Ohio-510, at ¶¶ 9-10. More

recently, in State v. Breneman, the Second Appellate District reiterated this

principle and pointed out:

      “Neither Fugate nor [] involved whether the defendant was entitled to
      jail time credit for time that the defendant spent serving a sentence in
      another case. We have consistently held that jail time credit is not
      appropriate where the defendant was serving a sentence for a separate
      offense. See, e.g., State v. Spears, 2nd Dist. Montgomery No. 25645,
      2014-Ohio-146, ¶ 2 (“Jail time credit is not permitted under R.C.
      2967.191 where the defendant was serving time for a separate
      offense.”); State v. Angi, 2nd Dist. Greene No. 2011 CA 72, 2012-
      Ohio-3840; State v. Rios, 2nd Dist. Clark No. 10 CA 59, 2011-Ohio-
      4720.”

      {¶15} In the case sub judice, we find Appellant is not entitled to jail time

credit in his felony cases which was credited to his unrelated assault charge,
Highland App. No. 16CA1                                                                                        9

Highland County Case Number 10CR236.3 Appellant filed the motion for jail time

credit in the felony child endangering cases, Case Number 10CR221. The trial

court overruled his motion in the appealed-from entry in Case Number 10CR221.

In its ruling, the trial court referenced a document from the Highland County

Sheriff’s Department which verified the jail time credit Appellant received was

applied to the misdemeanor assault case. We also take judicial notice of the entries

in both the assault and child endangering cases, posted on the Highland County

Common Pleas Court website, eaccess.hccpc.org/eservices/home.page.3.4 The

entries reveal that Appellant received jail time credit beginning on October 1, 2010

in the assault case, but received no jail time credit in the child endangering cases.

         {¶16} For the foregoing reasons, Appellant’s argument that he is entitled to

jail time credit on his felony convictions is without merit. We hereby overrule his

assignment of error and affirm the judgment of the trial court.

                                                                              JUDGMENT AFFIRMED.




3
  The record verifies that the assault count is unrelated to the child endangering counts. The child endangering
counts arose from events which occurred on September 24, 2010 on East Pleasant Street in the City of Hillsboro.
The felonious assault charge occurred on or about September 30, 2010 on Cody Road in Highland County.
4
  Both a trial court and an appellate court can take notice of judicial opinions and public records accessible from the
internet. In re Helfrich, 5th Dist. Licking No. 13CA20, 2014-Ohio-1933.
Highland App. No. 16CA1                                                         10

Harsha, J., concurring:

      {¶17} I acknowledge that Copas, supra is now the controlling and correct

precedent on this issue in our district. Therefore, I concur in this court’s judgment

and opinion.
Highland App. No. 16CA1                                                          11

                               JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed
to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the
Highland County Common Pleas Court to carry this judgment into execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.

Abele, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs with Concurring Opinion.

                                 For the Court,


                                 BY: _______________________________
                                     Matthew W. McFarland, Judge


                             NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
