[Cite as State v. Shavers, 2019-Ohio-3059.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                      TRUMBULL COUNTY, OHIO


 STATE OF OHIO,                                   :          OPINION

                   Plaintiff-Appellee,            :
                                                             CASE NO. 2018-T-0047
         - vs -                                   :

 CURTIS L. SHAVERS,                               :

                   Defendant-Appellant.           :


 Criminal Appeal from the Trumbull County Central District Court, Case No. 2016 CRB
 00116.

 Judgment: Affirmed.


 Dennis Watkins, Trumbull County Prosecutor, and Deena L. DeVico, Assistant
 Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
 44481 (For Plaintiff-Appellee).

 Eric D. Hall, P.O. Box 232, Medina, OH 44258 (For Defendant-Appellant).



THOMAS R. WRIGHT, P.J.

        {¶1}      Appellant, Curtis L. Shavers, appeals the judgment sentencing him to 100

days in jail following his probation violation. We affirm.

        {¶2}      In 2016, Shavers was convicted of petty theft in violation of R.C. 2913.02,

a first-degree misdemeanor, and sentenced to 180 days in jail with 160 days suspended,

one-year reporting probation, and a fine.
       {¶3}   In June of 2017, Shavers was convicted of his first probation violation. He

was ordered to serve 60 days in jail and his probation was extended. Shavers pleaded

no contest to his second probation violation in November of 2017. At the plea hearing,

the parties acknowledged that Shavers was being held on an unrelated offense in an

adjacent county, and the trial court set Shaver’s case for sentencing in 30 days.

       {¶4}   On February 2, 2018, Shavers filed a “Notice of Availability” for sentencing.

His sentencing was again rescheduled, and the court’s entry notes that the case will be

reset for sentencing after Shaver’s completion of his Mahoning County sentence. He was

subsequently sentenced May 2, 2018 to 100 days in jail commencing June 4, 2018, the

same date his sentence in the unrelated case expired.

       {¶5}   After he appealed, Shavers did not seek a stay of execution pending appeal

from the trial court. He did, however, seek a stay from this court on August 1, 2018, which

we denied based on his failure to comply with App.R. 8, requiring a stay to be first sought

in the trial court, and 11 Dist. Rule 7(E)(1), requiring the movant to address seven factors

in a memorandum in support. Shavers has since served his time and was released in

September of 2018.

       {¶6}   He raises one assigned error:

       {¶7}   “The trial court erred when it failed to act on Appellant’s notice of availability

and sentence him on the probation violation causing appellant to serve jail time beyond

the 180 days incarceration originally imposed by the trial court and constituted an abuse

of discretion.”

       {¶8}   Shavers argues that the trial court abused its discretion upon delaying

imposition of his sentence until he served time for another, unrelated offense despite his




                                              2
filing a notice of availability on February 2, 2018 and his appearance before the court on

February 14, 2018. Shavers alleges prejudice because of the delay in sentencing. He

also argues that the delay was contrary to law and that his misdemeanor sentence should

be modified or vacated.      We disagree.

       {¶9}    Shavers relied on R.C. 2941.401, Request by a prisoner for trial on pending

charges, upon seeking to compel the trial court to immediately sentence him. However,

this provision states in pertinent part:

       {¶10} “When a person has entered upon a term of imprisonment in a correctional

institution of this state, and when during the continuance of the term of imprisonment

there is pending in this state any untried indictment, information, or complaint against the

prisoner, he shall be brought to trial within one hundred eighty days after he causes to be

delivered to the prosecuting attorney and the appropriate court in which the matter is

pending, written notice of the place of his imprisonment and a request for a final

disposition to be made of the matter * * *.”

       {¶11} “R.C. 2941.401 is one of the statutes governing Ohio's speedy-trial rules;

it applies when a defendant located in a ‘correctional institution’ in Ohio seeks to resolve

charges pending elsewhere in the state.” State v. Black, 142 Ohio St.3d 332, 2015-Ohio-

513, 30 N.E.3d 918, FN1. And for R.C. 2941.401 purposes, “a jail is not a ‘correctional

institution of this state.’” (Citation omitted.) Id at ¶ 49.

       {¶12} Shavers fails to establish that he was serving time in prison, and not jail, at

the time of his motion. And because R.C. 2941.401 only applies to individuals serving

time in prison, Shavers has not established that this provision applies. State v. Hairston,

101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471, ¶25. Moreover, Shavers was not




                                                 3
requesting to be brought to trial; he had already pleaded no contest to his second

probation violation. Instead, he was seeking to compel the court to sentence him via R.C.

2941.401, and this statute by its own terms, aids in the time an individual is brought to

trial, not sentenced.

       {¶13} Accordingly, Shavers’ sole assigned error lacks merit, and the trial court’s

decision is affirmed.



MATT LYNCH, J.,

MARY JANE TRAPP, J.,

concur.




                                           4
