[Cite as Olmsted Falls v. Clifford, 2014-Ohio-2397.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100375




                            CITY OF OLMSTED FALLS
                                                             PLAINTIFF-APPELLEE

                                                       vs.

                           RICHARD L. CLIFFORD, III
                                                             DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                        Criminal Appeal from the
                                         Berea Municipal Court
                                        Case No. 12-CRB-01226

        BEFORE: Keough, J., Celebrezze, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                            June 5, 2014
ATTORNEYS FOR APPELLANT

Michael E. Stepanik
Jack W. Bradley
520 Broadway
Third Floor
Lorain, Ohio 44052

ATTORNEY FOR APPELLEE

Santo T. Incorvaia
Prosecutor
City of Olmsted Falls
5005 Rockside Road, Suite 600
Independence, Ohio 44131
KATHLEEN ANN KEOUGH, J.:

      {¶1} This appeal was heard on the accelerated calendar pursuant to App.R. 11.1

and Loc.R. 11.1. The purpose of an accelerated appeal is to allow this court to render a

brief and conclusory opinion.     State v. Johnson, 8th Dist. Cuyahoga No. 98594,

2013-Ohio-1788, ¶ 1, citing Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d

158, 463 N.E.2d 655 (10th Dist.1983); App.R. 11.1(E).

      {¶2} On August 24, 2012, appellant, Richard Clifford, was charged in two cases

in the Berea Municipal Court with telephone harassment in violation of R.C. 2917.21.

He subsequently pled no contest in both cases and was found guilty of one count of

telephone harassment, a first-degree misdemeanor, and an amended charge of disorderly

conduct in violation of R.C. 2917.11(E)(3), a fourth-degree misdemeanor.

      {¶3} On October 26, 2012, the municipal court sentenced Clifford to 180 days in

jail for the telephone harassment offense and ordered “jail time consecutive with other

case(s) sentenced on this date.” On the same day, the court sentenced Clifford to 30 days

in jail for the disorderly conduct charge and credited him with 27 days served, leaving

him with 183 days to serve on both cases. The trial court remanded Clifford to the

Cuyahoga County jail to begin serving his sentence.

      {¶4} On November 6, 2012, while serving his sentence on the misdemeanor

charges, Clifford was sentenced by the Cuyahoga County Common Pleas Court in an

unrelated felony case (Cuyahoga C.P. No. CR-11-551710) to a prison term of one year to
be served in the Lorain Correctional Institution. On November 13, 2012, Clifford was

transferred from the Cuyahoga County jail to the Lorain Correctional Institution to serve

the one-year sentence. He was released on June 19, 2013.

       {¶5} Upon determining that Clifford had served only 13 of the 183 days ordered

on the misdemeanor charges, on June 18, 2013, the municipal court issued a warrant for

his arrest.   On June 20, 2013, Clifford appeared before the municipal court, which

reimposed the original sentence of 183 days, credited 13 days served, and ordered

Clifford jailed to serve the remaining 170 days.

       {¶6} On June 26, 2013, Clifford filed a motion for release in which he asserted

that he had satisfied the 180-day jail sentence by serving the one-year term in the felony

case, and requested that he be released. The municipal court magistrate denied the

motion, reasoning that Clifford had to serve 170 days in jail because the felony case “was

pending at the time of misdemeanor sentencing,” and the trial court had ordered “sentence

consecutive to other cases.”

       {¶7} Clifford objected to the magistrate’s decision and filed an emergency

motion for release in which he again argued that he had satisfied his sentence of

incarceration with the municipal court. The trial judge denied the motion. The judge

found that the magistrate had erred in finding that the court’s sentence on the

misdemeanors was consecutive to the pending but unsentenced felony matter, and

clarified that its order that the misdemeanor sentences would be consecutive was to cases

sentenced in municipal court on that date and not to future cases. Nevertheless, the judge
ruled that the magistrate had properly denied Clifford’s motion. Clifford filed a motion

for reconsideration, which the trial court denied, and this appeal followed.

       {¶8} Clifford asserts that the trial court erred in not granting jail-time credit on

the misdemeanor sentence because he served the sentence concurrent with the prison

sentence on the felony offense. He contends that pursuant to R.C. 2929.41(A), when a

defendant is sentenced to a jail term on a misdemeanor and to a prison term on a felony,

the misdemeanor is always served concurrently with the felony. He further contends that

if there is any ambiguity regarding whether the sentences should be served consecutively

or concurrently, the ambiguity must be resolved in favor of the defendant, and the

sentences must be served concurrently. We agree.

       {¶9} R.C. 2929.41(A), regarding multiple sentences, easily disposes of this issue.

 It provides that, with certain limited exceptions that do not apply here, prison terms

“shall be served concurrently.” Specifically with regard to misdemeanor sentences, it

provides that “a jail term or sentence of imprisonment for misdemeanor shall be served

concurrently with a prison term or sentence of imprisonment for felony served in a state

or federal correctional institution.”

       {¶10} The city contends that R.C. 2929.41(A) is inapplicable, however, because

it was excised by the Ohio Supreme Court in State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470. As support for its argument, the city refers us to the

discussion of Foster by the Ohio Supreme Court in State v. Bates, 118 Ohio St.3d 174,

2008-Ohio-1983, 887 N.E.2d 328, ¶ 18-19, wherein the court stated that the severance of
former R.C. 2929.14(E)(4) and former R.C. 2929.41(A) in their entirety by Foster left no

statute that established presumptions for concurrent or consecutive sentencing beyond the

basic purposes and principles of sentencing set forth in R.C. 2929.11 and 2929.12.

Accordingly, the Bates court said that Foster reinstated the common-law presumptions

(i.e., that unless a sentencing judge orders otherwise, sentences run consecutively), and

judges have discretion and authority to determine whether prison sentences within the

statutory range should run consecutively or concurrently.

       {¶11} Subsequent to Bates, however, the legislature enacted Am.Sub.H.B. 86,

effective September 30, 2011, which contains the revised version of R.C. 2929.41(A) as

quoted above, and unequivocally states that multiple prison terms “shall be served

concurrently” unless certain limited exceptions apply. State v. Stanley, 2d Dist. Clark

No. 11CA0069, 2012-Ohio-2802, ¶ 19. This court recognized the effect of Am.Sub.H.B.

86 in State v. Davis, 8th Dist. Cuyahoga             Nos. 97689, 97691, and 97692,

2012-Ohio-3951, ¶ 16, stating “there is a presumption in Ohio that all sentencing is to run

concurrent.”

       {¶12} Under R.C. 2929.41(B)(1), when the trial court specifies that it is to be

served consecutively, a jail term or sentence of imprisonment for a misdemeanor shall be

served consecutively to any other prison term, jail term, or sentence of imprisonment.

Thus, the municipal court had authority to order that the sentences on the two

misdemeanor cases were to be served consecutively. However, the municipal court did

not, and in fact could not, order its sentence to be served consecutive to any future
sentence yet to be imposed in the pending felony case in the common pleas court.

Although a trial court may order a sentence to be served consecutive to a sentence

imposed on the offender by another Ohio court, that grant of authority is limited to a

sentence that has been previously imposed. Bates at ¶ 19; State v. White, 18 Ohio St.3d

340, 342, 481 N.E.2d 596 (1985). A trial court has no authority to order a sentence to be

served consecutive to a future sentence not yet imposed. Id.

       {¶13} Thus, in this case, the common pleas court could have ordered that its

sentence in the felony matter be served consecutive to the sentence already imposed in the

municipal court. Because it did not do so, under R.C. 2929.41(A), the sentence on the

misdemeanor charges was served concurrent with the sentence on the felony charge.

Accordingly, the municipal court erred in not granting Clifford jail-time credit for the

time he served in prison concurrent to his misdemeanor sentence. The assignment of

error is sustained.

       {¶14} Reversed and remanded with instructions to the municipal court to grant

Clifford jail-time credit (170 days) on the misdemeanor sentence that was served

concurrent with the felony offense.

       It is ordered that appellant recover from appellee 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 municipal

court to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
SEAN C. GALLAGHER, J., CONCUR
