         [Cite as State v. Carberry, 2019-Ohio-3303.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :    APPEAL NO. C-180540
                                                        TRIAL NO. B-1604243
        Plaintiff-Appellee,                        :

  vs.                                              :      O P I N I O N.

THOMAS CARBERRY,                                   :

    Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: August 16, 2019




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Office of the Ohio Public Defender and Timothy B. Hackett, Assistant State Public
Defender, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS



MOCK, Presiding Judge.
       {¶1}   Following a guilty plea, defendant-appellant Thomas Carberry was

convicted of one count of gross imposition (“GSI”) under former R.C. 2907.05(A)(4).

He was sentenced to 30 months in prison. At that time, both the state and Carberry

agreed that he was entitled to 175 days of jail-time credit, and the trial court awarded

him that amount.

       {¶2}   Carberry appealed that conviction. He contended that he was entitled

to 354 days of credit, although he had agreed with the 175 day figure at the time. The

state agreed that Carberry was not given the proper amount of jail-time credit, but it

contended that he was only entitled to an additional 13 days of credit, for a total of

188 days. In State v. Carberry, 1st Dist. Hamilton No. C-170095, 2018-Ohio-1060,

we affirmed his conviction in most respects. But, because the parties agreed that the

award of 175 days of credit was incorrect, we remanded the case for the trial court to

determine the proper amount of jail-time credit. Id. at ¶ 17-20.

       {¶3}   On remand, the trial court awarded Carberry 188 days of credit, and he

has appealed from the trial court’s judgment.       In his sole assignment of error,

Carberry contends that the trial court erred when it granted him only 13 additional

days of jail-time credit. He argues that he is entitled to credit for time that he spent

in juvenile commitment before he was bound over to the common pleas court.

Therefore, he contends, he was entitled to 354 days of credit. This assignment of

error has merit, but we do not agree that he was entitled to credit for the entire

period of 354 days.

       {¶4}   First, we note that it does not matter that Carberry originally agreed to

175 days credit. This court has stated that a trial court commits plain error when it

fails to include the appropriate amount of jail-time credit in the sentencing entry.

State v. Washington, 1st Dist. Hamilton No. C-140315, 2015-Ohio-1815, ¶ 9.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶5}   Former R.C.2967.191 authorized the trial court to give a defendant

credit for the total number of days that he was “confined for any reason arising out of

the offense” for which he was convicted and sentenced. Thus, prisoners must be

given credit for the time they have been confined for reasons arising out of the

offense for which they are convicted and sentenced, including the time they are

confined awaiting trial. State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883

NE.2d 440, ¶ 7-8; State v. Klein, 1st Dist. Hamilton Nos. C-040176 and C-040224,

2005-Ohio-1761, ¶ 26. But prisoners are not entitled to credit for any period of

incarceration that arises from facts separate from those upon which their current

sentence is based. Klein at ¶ 26.

       {¶6}   Further, the Ohio Supreme Court has made clear that under former

R.C. 2152.18(B), a juvenile is entitled to receive credit for the time the juvenile was

confined in connection with the delinquent-child complaint upon which an order of

commitment is based. In re D.S., 148 Ohio St.3d 390, 2016-Ohio-7369, 71 N.E.3d

223, ¶ 15.    In other words, “Judges must grant confinement credit under R.C.

2152.18(B) if the confinement stems from an original complaint and is sufficiently

linked to the adjudication of the charges upon which the juvenile court orders

commitment.” Id. at ¶ 22; In re J.D., 5th Dist. Richland No. 17CA42, 2018-Ohio-

1823, ¶ 20.

       {¶7}   In In re D.S., the state filed a complaint alleging that the juvenile was

delinquent for committing acts that would have constituted two counts of aggravated

robbery with accompanying firearm specifications if committed by an adult. All of

those charges arose from a single incident.         Subsequently, the juvenile court

transferred the case to the general division of the common pleas court. The juvenile

remained in juvenile detention until his transfer to the county jail.

       {¶8}   In the common pleas court, the state moved to dismiss the indictment

based on an agreement with the juvenile, in which the juvenile was to plead

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delinquent to one count of robbery with an accompanying firearm specification. The

common pleas court granted the motion. Upon return of the case to juvenile court,

the judge conducted an adjudicatory hearing and accepted the juvenile’s admission

to the charge of robbery with the specification. In doing so, the judge categorized the

case as “refiling, an amended filing of what was originally filed * * * .”

       {¶9}     The juvenile court failed to award the juvenile credit for any time

during which he was confined before commitment.              The Ohio Supreme Court

reversed, stating that the entire period during which the juvenile was confined was in

connection with the original juvenile complaint and that he was entitled to credit for

that time of confinement. In re D.S., 148 Ohio St.3d 390, 2016-Ohio-7369, 71 N.E.3d

223, at ¶ 24.

       {¶10} Though Carberry’s case is slightly different in that he was never
returned to the juvenile court, it is clear that he is entitled to credit for some of the

time he spent in juvenile detention in connection with the offense for which he was

ultimately convicted. But, we disagree that he was entitled to credit back to February

26, 2016, as he now argues.

       {¶11} The record shows that on February 26, 2016, a complaint was filed in
the Clermont County Juvenile Court alleging that Carberry was delinquent for an act

that would have constituted rape if committed by an adult. He was adjudicated

delinquent in the Clermont County court on May 9, 2016, and the case was

transferred to Hamilton County for disposition.

       {¶12} On June 1, 2016, while disposition in the rape case was pending, three
complaints were filed in Hamilton County Juvenile Court, each alleging that

Carberry had committed an act which, if committed by an adult, would have

constituted gross sexual imposition. On July 28, 2016, the juvenile court held a

consolidated hearing involving disposition of the rape case and Carberry’s

amenability to rehabilitation in the juvenile system on the GSI charges. The court

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                     OHIO FIRST DISTRICT COURT OF APPEALS



found that Carberry was not amenable to rehabilitation in the juvenile system on the

GSI charges and transferred them to adult court. On the rape charge, the court

committed Carberry to the Department of Youth Services for a minimum period of 12

months and a maximum period not to exceed his attainment of the age of 21.

       {¶13} After being bound over, Carberry was indicted on three counts of GSI
in violation of former R.C. 2907.05(A)(4). He pleaded guilty to one count and the

other two counts were dismissed.

       {¶14} Carberry was entitled to credit from June 1, 2016, the day on which the
GSI complaints were filed. After that time, he was confined related to the offense for

which he was ultimately convicted and sentenced. But he was not entitled to any

credit for time before that date when he was being held solely on the rape charge that

originated in Clermont County. The time he was held solely on the rape charge

“arose from facts separate and apart from those on which his current sentence is

based.” See State v. Washington, 1st Dist. Hamilton No. C-150462, 2006-Ohio-

4790, ¶ 7, quoting State v. Logan, 71 Ohio App.3d 292, 300, 593 N.E.2d 395 (10th

Dist.1991).

       {¶15} Consequently, we sustain Carberry’s assignment of error. We reverse
the trial court’s judgment awarding him 188 days of jail-time credit. We remand the

cause to the trial court to make a factual determination of the amount of jail-time

credit to which he is entitled starting from June 1, 2016.

                                              Judgment reversed and cause remanded.



MYERS AND BERGERON, JJ., concur.



Please note:
       The court has recorded its own entry this date.




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