[Cite as State v. Daughenbaugh, 2009-Ohio-3823.]




                     IN THE COURT OF APPEALS OF OHIO
                         THIRD APPELLATE DISTRICT
                             WYANDOT COUNTY



STATE OF OHIO,

    PLAINTIFF-APPELLEE,                                 CASE NO. 16-09-05

    v.

ROBERT DAUGHENBAUGH,                                       OPINION

    DEFENDANT-APPELLANT.




               Appeal from Wyandot County Common Pleas Court
                           Trial Court No. 07 CR 23

                                    Judgment Affirmed

                            Date of Decision: August 3, 2009




APPEARANCES:

         Howard A. Elliott for Appellant

         Douglas R. Rowland for Appellee
Case No. 16-09-05




ROGERS, J.

       {¶1} Defendant-Appellant, Robert Daughenbaugh, appeals the judgment

of the Wyandot County Court of Common Pleas revoking his judicial release and

reimposing his prison term without granting jail-time credit for time served for a

prior revocation of judicial release and reincarceration in two other counties on

unrelated offenses. On appeal, Daughenbaugh argues that the trial court denied

him equal protection of the law by failing to afford him jail-time credit against his

sentence for time served upon his reincarceration in other counties where the

prison sentence originally imposed by those other counties was ordered to be

served concurrently with the sentence imposed in this case. Daughenbaugh also

argues that he was denied effective assistance of counsel when his trial counsel

failed to provide the trial court with judgment entries of his convictions in other

counties evidencing that his sentences in those counties were to be served

concurrently to the sentence imposed in this case. Based on the following, we

affirm the judgment of the trial court.

       {¶2} In March 2007, Daughenbaugh was indicted by the Wyandot County

Grand Jury on one count of breaking and entering in violation of R.C. 2911.13(A),

a felony of the fifth degree, and one count of vandalism in violation of R.C.

2909.05(B)(1)(a), a felony of the fifth degree.




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      {¶3} In May 2007, Daughenbaugh entered a guilty plea to both counts of

the indictment, and, in June 2007, the matter proceeded to sentencing, at which the

trial court imposed two consecutive eleven-month prison terms, for a total prison

term of twenty-two months.      Subsequently, Daughenbaugh filed a notice of

appeal.

      {¶4} In July 2007, Daughenbaugh was also sentenced for unrelated

offenses by the Seneca County Court of Common Pleas to a nine-month prison

term, to be served concurrently to the prison term imposed in Wyandot County.

      {¶5} In September 2007, the Hancock County Court of Common Pleas

sentenced Daughenbaugh to a seven-month prison term on offenses unrelated to

the proceedings in Wyandot and Seneca Counties, to be served concurrently to the

prison terms imposed in those counties.

      {¶6} In October 2007, this court affirmed Daughenbaugh’s conviction and

sentence in Wyandot County in State v. Daughenbaugh, 3d Dist. No. 16-07-07,

2007-Ohio-5774.

      {¶7} In November 2007, Daughenbaugh filed a motion for judicial release

in Wyandot County, and, in January 2008, the trial court granted his motion,

suspended his sentence, and ordered three years supervision.

      {¶8} Shortly thereafter, Daughenbaugh also filed motions for judicial

release in both the Hancock County and Seneca County Courts of Common Pleas,



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which were also granted, with Hancock County imposing a five-year term of

supervision.

        {¶9} Subsequently, Daughenbaugh filed a pro se motion to revoke his

judicial release in Hancock County, asserting that he wished to serve his

remaining prison term rather than serve a five-year term of supervision, and the

trial court granted the motion, reimposing the remainder of Daughenbaugh’s

prison sentence.1

        {¶10} In June 2008, the Wyandot County Court of Common Pleas filed an

entry purportedly suspending Daughenbaugh’s supervision under judicial release

from May 5, 2008, until July 20, 2008, the scheduled dates that Daughenbaugh

was to serve his prison sentence for Hancock and Seneca Counties.

        {¶11} In September 2008, following Daughenbaugh’s release from prison,

the State filed a motion to show cause in Wyandot County, alleging that

Daughenbaugh violated the terms of his supervision when he possessed a motor

vehicle not belonging to him, failed to report to his supervising officer, failed to

notify his supervising officer of his felony arrest, and failed to make his required

restitution payments.



1
  We note that Daughenbaugh has only provided this Court with the record for his Wyandot County case.
Accordingly, we are unable to determine whether Daughenbaugh also filed a motion to revoke judicial
release in Seneca County. However, Daughenbaugh has attached to his brief an entry from the Seneca
County Court of Common Pleas indicating that he served the remainder of the prison term imposed by that
court. Thus, Seneca County may have also reimposed his prison term around the same time as Hancock
County.


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       {¶12} In December 2008, the trial court held a hearing on the State’s

motion to show cause, with the court continuing Daughenbaugh’s supervision with

all previously imposed terms and orders, imposing an additional one hundred

hours of community service, and requiring him to pay a minimum of $5 per week

towards his previously imposed financial sanctions.

       {¶13} Immediately following the hearing, Daughenbaugh was administered

and failed a drug test imposed as a condition of his supervision, and the State

subsequently filed a second motion to show cause, requesting that the trial court

revoke or modify his judicial release due to this positive drug test.

       {¶14} In February 2009, the trial court held a hearing on the State’s

December 2008 motion to show cause, at which the following discussion took

place between Daughenbaugh’s trial counsel and the State:

       [Daughenbaugh’s trial counsel] The one thing my client has
       asked me to, uhm, ask of this Court is that appropriate jail days
       credit be given. He has asked, request the Court that the Court
       give credit for the 78 days in which his supervision was
       suspended while he was serving time out of his Hancock County
       case.

       ***

       [State] We are against and opposed to the defendant being
       granted any time for credit that he served in his Hancock
       County case. Uhm, it was time that stemmed from the offense
       that occurred in Hancock County. It was the defendant’s own
       choice to go back and serve that time in Hancock County, which
       was approximately 78 days, rather than remain on supervision



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      with Hancock County because he didn’t like the rules of
      supervision.

      Uhm, with respect to the Seneca County time, again, there was
      another jurisdiction that he was sitting [sic] time specifically for
      that case in Seneca County.

(Feb. 2009 Revocation of Judicial Release Hearing tr., pp. 31-33). Subsequently,

the trial court revoked its prior order of judicial release and reimposed

Daughenbaugh’s two consecutive eleven-month prison terms, granting 211 days

jail-time credit for the time served prior to his judicial release, and granting no

jail-time credit for the time served upon his reincarceration in Hancock and Seneca

Counties.

      {¶15} It is from this judgment that Daughenbaugh appeals, presenting the

following assignments of error for our review.

                           Assignment of Error No. I

      THE TRIAL COURT DENIED THE APPELLANT EQUAL
      PROTECTION BY FAILING TO AFFORD HIM JAIL-TIME
      CREDIT AGAINST HIS SENTENCE WITH RESPECT TO
      PERIODS OF INCARCERATION ARISING OUT OF TIME
      SERVED IN SENTENCES IN OTHER CASES WHEN THOSE
      CASES    WERE    ORDERED    TO    BE   SERVED
      CONCURRENTLY WITH PROCEEDINGS BEFORE THE
      TRIAL COURT.

                           Assignment of Error No. II

      THE APPELLANT WAS RENDERED INEFFECTIVE
      ASSISTANCE OF COUNSEL BY NOT PROPERLY
      PRESENTING TO THE TRIAL COURT, JUDGMENT
      ENTRIES AND OTHER RELATED DOCUMENTS SETTING


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       FORTH THAT TWO OTHER OHIO COMMON PLEAS
       COURTS HAD ENTERED CONVICTIONS AGAINST THE
       APPELLANT      AND    ORDERED   A    TERM   OF
       INCARCERATION      IN   THOSE   CASES   SERVED
       CONCURRENTLY        WITH    THE     TERM    OF
       INCARCERATION BEFORE THE TRIAL COURT. [SIC]
       WHICH ENTITLED THE APPELLANT [SIC] CREDIT FOR
       TIME SERVED PURSUANT TO OHIO REVISED CODE
       §2967.191 IN THE MATTER BEFORE THE TRIAL COURT
       AS TO PERIODS OF INCARCERATION ARISING OUT OF
       THE OTHER TWO CONVICTIONS.

                             Assignment of Error No. I

       {¶16} In his first assignment of error, Daughenbaugh argues that the trial

court denied him equal protection of the law under the Fourteenth Amendment to

the United States Constitution when it failed to grant him jail-time credit for all his

periods of incarceration. Specifically, he contends that jail-time credit should

have been applied to his Wyandot County sentence for time served upon his

reincarceration in Hancock and Seneca Counties because those counties ordered

his original sentences to be served concurrently with his sentence in Wyandot

County. We disagree.

       {¶17} “The Adult Parole Authority has the duty to grant jail time credit,

however, ‘the trial court has the duty to properly calculate the number of days to

be credited.’” State v. Pitts, 3d Dist. No. 1-06-106, 2007-Ohio-5197, ¶15, quoting

State v. Eaton, 3d Dist. No. 14-04-53, 2005-Ohio-3238, ¶9. See, also, State v.

Fair, 136 Ohio App.3d 184, 188, 2000-Ohio-1614.



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       {¶18} R.C. 2967.191 governs a defendant’s entitlement to jail-time credit,

and provides, in pertinent part:

       The department of rehabilitation and correction shall reduce the
       stated prison term of a prisoner or, if the prisoner is serving a
       term for which there is parole eligibility, the minimum and
       maximum term or the parole eligibility date of the 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 * * *.

Accordingly, pursuant to R.C. 2967.191, a defendant is only entitled to jail-time

credit for confinement that is related to the offense for which he is being

sentenced.    Pitts, 2007-Ohio-5197, at ¶16; State v. Brooks, 9th Dist. No.

05CA008786, 2006-Ohio-1485, ¶6. “A defendant is not entitled to jail time credit

under R.C. 2967.191 for any period of incarceration that arises from facts separate

and apart from those on which the current sentence is based.” State v. Lynn, 3d

Dist. No. 15-06-16, 2007-Ohio-3344, ¶8, citing State v. Logan (1991), 71 Ohio

App.3d 292, 300.

       {¶19} Furthermore, this Court has previously found in State v. Eaton, 3d

Dist. No. 14-04-53, 2005-Ohio-3238, ¶¶10-11, that a defendant is not entitled to

jail-time credit for time incarcerated in another county for unrelated offenses. See,

also, State v. McWilliams (1998), 126 Ohio App.3d 398, 401; State ex rel. Moss v.

Subora (1987), 29 Ohio St.3d 66.




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       {¶20} In the case sub judice, Daughenbaugh was serving three separate

sentences for unrelated offenses that occurred in three separate counties. The

sentences imposed by Hancock and Seneca Counties were ordered to be served

concurrently with the sentence in Wyandot County; however, Hancock and Seneca

Counties’ imposition of their sentences concurrent with Wyandot County’s

sentence in no way altered Wyandot County’s sentence. Hancock and Seneca

Counties could not also require Wyandot County to impose its sentence concurrent

with the sentences in those counties. Accordingly, when Daughenbaugh was

granted judicial release by all three counties, and then subsequently chose to return

to prison and serve the remainder of his sentences in Hancock and Seneca

Counties, Wyandot County’s sentence was not also running, as it had not

reimposed its sentence, and its sentence was not concurrent to Hancock and

Seneca Counties.     Consequently, the trial court was not obligated to grant

Daughenbaugh jail-time credit for his time served while reincarcerated on the

Hancock and Seneca County cases.

       {¶21} Furthermore, not granting Daughenbaugh jail-time credit for his

Hancock and Seneca County reincarceration is consistent with the this Court’s

prior findings on jail-time credit and a defendant’s entitlement to jail-time credit

pursuant to R.C. 2967.191. As we have previously found, a defendant is not

entitled to jail-time credit for time incarcerated in another county for unrelated



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offenses, and, additionally, R.C. 2967.191 only entitles a defendant to jail-time

credit for confinement “arising out of the offense for which [he] was convicted

and sentenced.” Here, Daughenbaugh was only reincarcerated on the Hancock

and Seneca County cases, not the Wyandot county case, thereby precluding his

entitlement to jail-time credit in Wyandot County for the reincarceration.

       {¶22} Daughenbaugh argues that a defendant’s entitlement to jail-time

credit is unqualified when sentences are ordered to be served concurrently. In

support of his proposition, he cites to the syllabus in State v. Fugate, 117 Ohio

St.3d 261, 2008-Ohio-256, which states that “[w]hen 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.” However, Fugate

is clearly distinguishable from the case at bar.

       {¶23} In Fugate, the defendant was on community control for a prior

conviction of receiving stolen property, and was subsequently arrested on charges

of burglary and theft, for which he was later convicted and also found to have

violated the terms of community control. The trial court imposed a two-year

prison term for his burglary and theft convictions, and a concurrent twelve-month

prison term for his community control violation, but only granted him jail-time

credit for his community control violation sentence, despite the fact that he had

been held after his arrest on both the community control violation and the burglary



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and theft offenses at the same time, with both offenses arising out of the same

county. On appeal, the Supreme Court of Ohio found that the defendant was

entitled to jail-time credit for both the community control violation sentence and

the sentence for his burglary and theft convictions, as the prison terms were

ordered to be served concurrently, and he was confined on both the community

control offense and the burglary and theft offenses.

       {¶24} Here, unlike the defendant in Fugate, Daughenbaugh was serving

prison time on sentences from multiple jurisdictions, and he was reincarcerated

only on the Hancock and Seneca County offenses, not Wyandot County.

Therefore, we find Fugate to be inapposite and to not entitle Daughenbaugh to

jail-time credit in Wyandot County for his reincarceration.

       {¶25} Consequently, we find that the trial court did not err in failing to

grant Daughenbaugh jail-time credit for time served after his reincarceration on

his sentences in Hancock and Seneca Counties, and we find that the trial court was

correct in only granting Daughenbaugh 211 days of jail-time credit.

       {¶26} Accordingly, we overrule Daughenbaugh’s first assignment of error.

                            Assignment of Error No. II

       {¶27} In his second assignment of error, Daughenbaugh argues that he was

denied effective assistance of counsel.        Specifically, he asserts that his trial

counsel’s failure to provide the trial court with the sentencing entries in Hancock



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and Seneca Counties indicating that his sentences in those cases were ordered to

be served concurrently to his sentence in Wyandot County resulted in the trial

court’s failure to appropriately apply jail-time credit to his sentence.

       {¶28} An ineffective assistance of counsel claim requires proof that trial

counsel’s performance fell below objective standards of reasonable representation

and that the defendant was prejudiced as a result. State v. Bradley (1989), 42 Ohio

St.3d 136, paragraph two of syllabus.           To show that a defendant has been

prejudiced by counsel’s deficient performance, the defendant must prove that there

exists a reasonable probability that, but for counsel’s errors, the outcome at trial

would have been different.      Id. at paragraph three of syllabus.        “Reasonable

probability” is a probability sufficient to undermine confidence in the outcome of

the trial.   State v. Waddy (1992), 63 Ohio St.3d 424, 433, superseded by

constitutional amendment on other grounds as recognized by State v. Smith, 80

Ohio St.3d 89, 103, 1997-Ohio-355.

       {¶29} Furthermore, the court must look to the totality of the circumstances

and not isolated instances of an allegedly deficient performance. State v. Malone,

2d Dist. No. 10564, 1989 WL 150798. “Ineffective assistance does not exist

merely because counsel failed ‘to recognize the factual or legal basis for a claim,

or failed to raise the claim despite recognizing it.’” Id., quoting Smith v. Murray

(1986), 477 U.S. 527, 535.



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         {¶30} Here, we have found that Daughenbaugh was not entitled to jail-time

credit on the reimposition of his sentence in Wyandot County for the time he

served in Hancock and Seneca Counties following his reincarceration.

Consequently, Daughenbaugh’s trial counsel’s performance was not deficient for

failing to provide the trial court with the sentencing entries from Hancock and

Seneca Counties, and no prejudice resulted.

         {¶31} Accordingly, we overrule Daughenbaugh’s second assignment of

error.

         {¶32} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI and SHAW, J.J., concur.

/jnc




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