[Cite as State v. Ways, 2013-Ohio-293.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

STATE OF OHIO                                 :
                                              :     Appellate Case No. 25214
        Plaintiff-Appellee                    :
                                              :     Trial Court Case No. 12-CR-85
v.                                            :
                                              :
CHRISTOPHER E. WAYS                           :     (Criminal Appeal from
                                              :     (Common Pleas Court)
        Defendant-Appellant                   :
                                              :
                                           ...........

                                           OPINION

                             Rendered on the 1st day of February, 2013.

                                           ...........

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

MARSHALL G. LACHMAN, Atty. Reg. #0076791, 75 North Pioneer Boulevard, Springboro,
Ohio 45066
       Attorney for Defendant-Appellant

                                          .............

FAIN, P.J.

        {¶ 1}     Defendant-appellant Christopher Ways appeals from an order of the trial court
                                                                                             2


denying his motion for an increase in the amount of jail-time credit allowed against his

sentence. Ways contends that in addition to the jail-time credit of three days corresponding to

time he was held in jail in lieu of bail, he should be entitled to a credit for the time he was

incarcerated on a previous sentence, before the sentence was imposed in this case, which was

ordered to be served concurrently with the sentence in this case. We disagree. Accordingly,

the order of the trial court from which this appeal is taken is Affirmed.



                      I. On February 15, 2012, Ways Is Sentenced to

                          Twelve Months for Trafficking in Heroin

       {¶ 2}    In a separate criminal proceeding, Ways was sentenced on February 15, 2012,

to twelve months in prison for Trafficking in Heroin, in the vicinity of a school or a juvenile,

in violation of R.C. 2925.03(A)(1), to which he had pled guilty.

       {¶ 3}    Ways was given a jail-time credit of three days against this sentence. The

full record of this proceeding is not in the record of this appeal, but from the documents that

were admitted in evidence at the hearing on the motion leading to the order from which this

appeal is taken, it appears likely that Ways spent three days in jail on this charge before being

released on a pre-trial bond that included electronic home detention. The trial court allowed

Ways a jail-time credit of three days against this twelve-month sentence.



 II. On March 21, 2012, Ways Is Sentenced to Eighteen Months for Having Weapons

  Under a Disability, and for Carrying a Concealed Weapon, with the Sentences to be

    Served Concurrently with Each Other and Concurrently with the Twelve-Month
                                                                                                                                3


                        Sentence Imposed Previously for Trafficking in Heroin

         {¶ 4}       On February 13, 2012, two days before Ways was sentenced in the other

criminal proceeding, Ways was indicted for Having Weapons Under a Disability, in violation

of R.C. 2923.13(A)(3); Carrying a Concealed Weapon, in violation of R.C. 2923.12(A)(2);

and for Improper Handling of a Firearm in a Motor Vehicle, in violation of R.C. 2923.16(B).

         {¶ 5}       Pursuant to a plea bargain, Ways pled guilty to the charges of Having

Weapons Under a Disability and Carrying a Concealed Weapon, and the other charge was

dismissed. Part of the plea bargain was that Ways would be sentenced to eighteen months in

prison for each offense, with the sentences to be served concurrently with one another, and

concurrently with the twelve-month sentence he was already serving for Trafficking in Heroin.

 The plea was accepted, and the agreed-upon sentence was imposed, on the same day, March

21, 2012.

         {¶ 6}       The trial court allowed Ways a jail-time credit of three days against the

concurrent eighteen-month sentences it imposed in this case.

         {¶ 7}       Ways moved for additional jail-time credit, contending that he should receive

credit for the 36 days he was incarcerated on the twelve-month sentence for Trafficking in

Heroin, before the eighteen-month sentences were imposed.1 The trial court held a hearing

on the motion, and denied it.

         {¶ 8}       From the order denying his motion for the additional jail-time credit, Ways

appeals. His sole assignment of error is as follows:

           1
            It would seem to us that Ways was only incarcerated for 35 days from February 15, 2012, when he began serving his twelve-month
 sentence for Trafficking in Heroin, until March 21, 2012, when he was sentenced to the two, eighteen-month sentences in the case before us
 for review. Because it does not affect our analysis, we will assume that this interval was 36 days, as Ways claims.
                                                                                         4




                    THE      TRIAL     COURT       ERRED      IN    OVERRULING          THE

              DEFENDANT’S MOTION FOR ADDITIONAL JAIL-TIME CREDIT.



                       III. The Nature of Concurrent Sentences

      {¶ 9}   The nature of concurrent sentences, as contrasted with consecutive sentences,

was set forth succinctly in Bobo v. Dept. of Rehab. & Corr., 10th Dist. Franklin No.

11AP-118, 2011-Ohio-4984, at ¶ 13:

      “[T]he imposition of a concurrent sentence normally means that the sentence being

      imposed is to run concurrently with the undischarged portion of the previously

      imposed sentence.” (Emphasis sic.) State ex rel. Gray v. Karnes, 10th Dist. No.

      10AP–789, 2010–Ohio–5364, ¶ 5, quoting State v. Bellamy, 181 Ohio App.3d 210,

      2009–Ohio–888, quoting Bianco v. Minor (June 6, 2003), M.D.Pa. No. Civ.A.

      303CV0913. The definition of a concurrent sentence is to be contrasted with the

      definition of a consecutive sentence, where the second sentence cannot begin to be

      served until the first sentence has been completed.      Bellamy, citing Richards v.

      Eberlin, 7th Dist. No. 04BE–1, 2004–Ohio–2636.          Accordingly, “[t]he fact that

      sentences run concurrently merely means that the prisoner is given the privilege of

      serving each day a portion of each sentence. However, if the sentences which are to run

      concurrently are different lengths, the prisoner cannot be discharged until he has

      served the longest sentence.” Brinklow v. Riveland (Colo., 1989), 773 P.2d 517.

      {¶ 10} We agree. Where a sentence is imposed consecutively to a sentence that has
                                                                                                                                    5


already been imposed, and which the defendant has already begun serving, the defendant must

complete the first sentence before he can begin serving day one of the second sentence. By

contrast, where a sentence is imposed concurrently with a sentence that has already been

imposed, and which the defendant has already begun serving, the defendant is given the

comparative luxury of serving each day of his second sentence, beginning with the first day,

concurrently with a day served on the first sentence. Thus, if the new sentence is imposed

and put into execution on the 100th day of the old sentence, the defendant is allowed to serve

the first day of his new sentence while, at the same time, serving the 100th day of the old

sentence.

       {¶ 11} As in Bobo, the result may be that the first sentence expires before the second

sentence expires, even though the first sentence is a longer sentence.



                           IV. State v. Fugate and State v. Cole Distinguished

       {¶ 12} Ways relies upon State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883

N.E.2d 440; and State v. Cole, 2d Dist. Montgomery No. 23327, 2009-Ohio-4580, for the

proposition that he must be allowed 36 days of jail-time credit for the time he was incarcerated

while serving the first sentence, before the second sentence was imposed.

       {¶ 13} In State v. Fugate, two concurrent sentences were imposed at the same time.

One sentence, a twelve-month sentence for Receiving Stolen Property, was imposed as the

result of a community control revocation.                          The other sentence, a two-year sentence for

Burglary, was imposed as the result of a conviction following a jury trial.2 The trial court


         2
            The trial court initially overlooked the defendant’s conviction by the same jury for Theft, but later imposed a six-month sentence
                                                                                                6


allowed a 213-day jail-time credit against the twelve-month sentence, but did not allow any

jail-time credit against the two-year sentence for Burglary. The Supreme Court of Ohio held:

                    * * * although concurrent and consecutive terms are to be treated differently

         when jail-time credit is applied, the overall objective is the same: to comply with the

         requirements of equal protection by reducing the total time that offenders spend in

         prison after sentencing by an amount equal to the time that they were previously held.

                    Thus, in order to satisfy this objective, when concurrent prison terms are

         imposed, courts do not have the discretion to select only one term from those that are

         run concurrently against which to apply jail-time credit. R.C. 2967.191 requires that

         jail-time credit be applied to all prison terms imposed for charges on which the

         offender has been held. If courts were permitted to apply jail-time credit to only one

         of the concurrent terms, the practical result would be, as in this case, to deny credit for

         time that an offender was confined while being held on pending charges. So long as

         an offender is held on a charge while awaiting trial or sentencing, the offender is

         entitled to jail-time credit for that sentence; a court cannot choose one of several

         concurrent terms against which to apply the credit. Id. at ¶ 11-12 (emphasis added).

         {¶ 14} An affluent defendant, in the same situation as the defendant in Fugate, would

have been incarcerated for exactly two years – the two-year prison term for Burglary. While

serving that prison term, he would have served the twelve-month sentence for Receiving

Stolen Property, which would begin on the same day, and would have ended after the first year

of his two-year sentence for Burglary.


 for that offense, to be served concurrently with the two-year sentence for Burglary.
                                                                                            7


         {¶ 15} The defendant in Fugate, having been unable to post bond, would, as

originally sentenced, have been incarcerated for 213 days longer than his identical affluent

counterpart, because he would also serve the two-year prison term for Burglary, but would

have been incarcerated for 213 days before he began serving either prison term. The Equal

Protection Clause of the Fourteenth Amendment to the United States Constitution requires

that the indigent defendant be treated no more severely than his affluent counterpart.

         {¶ 16} In State v. Cole, supra, upon which Ways also relies, the situation was similar.

 The defendant in that case had been in pre-trial custody for some time on a charge of

Receiving Stolen Property. After he was convicted, he was placed on community control.

While on community control, the defendant in Cole was charged with two counts of Felonious

Assault, and was incarcerated pending trial. On the same day, the defendant in that case pled

guilty to the reduced charge of Attempted Felonious Assault, and admitted having violated the

terms of his community control sanction imposed in the other case. At a later date, the

defendant in that case was sentenced in both cases at the same time. He was sentenced to one

year in each case, to be served concurrently. The trial court allowed a jail-time credit of 143

days against the one-year sentence for Receiving Stolen Property, apparently representing the

total of the number of days he had been incarcerated on that charge before having been

sentenced to community control sanctions, plus the number of days he had been incarcerated

after having been arrested for Felonious Assault. The trial court only allowed a jail-time

credit of 83 days against the one-year sentence for Attempted Felonious Assault, representing

the time he had been incarcerated on that charge before the imposition of sentence in both

cases.
                                                                                           8


       {¶ 17} Relying upon State v. Fugate, supra, we reversed, holding that he was entitled

to the full 143 days of jail-time credit against both sentences. Again, the reason for this

somewhat counter-intuitive result lies in the disparate treatment that would otherwise be

visited upon an indigent defendant and his otherwise identical affluent counterpart. An

affluent defendant in the identical situation would have been sentenced to two concurrent

one-year sentences, and would have been incarcerated for exactly one year, with both

sentences beginning on the same day and ending on the same day. But the indigent defendant

in Fugate, as originally sentenced, would have begun his sentence for Attempted Felonious

Assault and ended it 282 days later (365 days minus the 83-day jail-time credit allowed against

that sentence). His Receiving Stolen Property sentence would, of course, have ended earlier,

since he would have received 143 days of jail-time credit against that one-year sentence. But,

of course, he would have been incarcerated for 143 days before the day on which both

sentences were imposed. Therefore, he would have been incarcerated for a total of 425 days

(143 days of pre-sentence incarceration plus 282 days of post-sentence incarceration), thereby

placing him in a worse position than his affluent counterpart, who would only be incarcerated

365 days for the same offenses and sentences. This would violate Equal Protection.

       {¶ 18} The distinction between the Fugate and Cole cases and the case before us is

that in those two cases, unlike in the case before us, the concurrent sentences began on the

same date.



    V. Ways Is Not Entitled to Jail-Time Credit for the Time He Was Incarcerated

         Pursuant to the Sentence Previously Imposed for Trafficking in Heroin
                                                                                            9


       {¶ 19} Jail-time credit is only allowed for:

                * * * 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, and confinement while

       awaiting transportation to the place where the prisoner is to serve the prisoner's prison

       term, as determined by the sentencing court under division (B)(2)(h)(i) of section

       2929.19 of the Revised Code. R.C. 2967.191.

       {¶ 20} This does not include time that the prisoner was incarcerated by reason of a

sentence previously imposed for a different offense, even if that prior sentence is one with

which the present sentence is ordered to be served concurrently. Bobo v. Dept. of Rehab. &

Corr., supra.

       {¶ 21} Disallowing, for purposes of jail-time credit, periods of time that a prisoner

has been incarcerated by reason of a sentence previously imposed and begun does not violate

Equal Protection. In the case before us, Ways’s affluent counterpart would be treated no

more leniently. He would begin serving the first day of his eighteen-month sentences for the

weapons offenses on March 21, 2012, concurrently with the 37th day of his sentence for

Trafficking in Heroin, and would complete that sentence eighteen months later, on September

20, 2013. He would not get credit against his eighteen-month sentences for the time he had

previously served on his twelve-month sentence for Trafficking in Heroin, and neither should

Ways. Ways did apparently spend three days in jail on the Trafficking charge before he made

bond, unlike his affluent counterpart, but he was allowed credit for those three days against
                                                                                              10


both the twelve-month sentence and the eighteen-month sentences, so that he will presumably

be released on September 17, 2013, having been incarcerated for three days before any of his

concurrent sentences began.

       {¶ 22} The Fugate and Cole cases, upon which Ways relies, are inapposite. Because

in both of those cases, the concurrent sentences began on the same day, there was no part of

one concurrent sentence that had already been served before the second concurrent sentence

was imposed. The issue of whether to apply a previously served part of a concurrent sentence

as a jail-time credit against the subsequently imposed concurrent sentence did not arise in

Fugate or Cole.

       {¶ 23} Ways is not entitled to a jail-time credit against his eighteen-month sentences

for that part of the twelve-month sentence that had already been served when those sentences

were imposed. Ways’s sole assignment of error is overruled.



                                        VI. Conclusion

       {¶ 24} Ways’s sole assignment of error having been overruled, the judgment of the

trial court is Affirmed.

                                         .............

DONOVAN, J., concurs.

HALL, J., concurring:

       {¶ 25} I agree with the result reached in this case by the majority. Ways’s two cases

are separate, distinct, and independent except for the fact that the trial court ordered the prison

terms imposed in each case be served concurrently. The jail-time credit granted in one case,
                                                                                             11


therefore, does not bleed into the other case. I write separately because I think that State v.

Cole, 2d Dist. Montgomery No. 23327, 2009-Ohio-4580, distinguished by the majority, was

wrongly decided and conflicts with the Sixth District’s judgment in State v. Wyburn, 6th Dist.

Lucas No. L-10-1292, 2011-Ohio-142, with which I agree. Just because a court orders that

prison terms imposed in two separate cases be served concurrently to each other does not

mean that in the later case the defendant is entitled to the jail-time credit he accumulated in a

previous case when he accumulated it before he ever committed the later offense.

       {¶ 26} Ways’s previous case involved a drug-trafficking charge. He was arrested on

this charge, and before being released on bail, he apparently spent 3 days in jail. Ways pleaded

guilty and was again released on bail while he awaited sentencing. Later, his participation in

the electronic-home-detection program was made a condition of bail, but a defendant is not

entitled to jail-time credit for the time spent in this program. The trial court sentenced Ways to

prison and granted him 3 days of jail-time credit.

       {¶ 27} As defense counsel notes in a sentencing memorandum, originally a

community-control sanction had been recommended and agreed to by the trial court. But a

condition of the court’s agreement was not satisfied because Ways failed to stay out of trouble

while out on bail. Two days before he was sentenced on the trafficking charge, Ways was

indicted in the present case for having a weapon under disability and carrying a concealed

weapon. He was arrested and released on bail two days later. Ways pleaded guilty to both of

the new charges. The trial court sentenced him to prison for each offense and ordered that the

two prison terms be served concurrently. The court ordered that they be served concurrent to

the prison term imposed in the drug-trafficking case. The court also granted Ways the 3 days
                                                                                              12


of jail-time credit that he had accumulated in that previous case. Thus Ways was granted

credit that he had accumulated in the previous separate case before he committed the two

offenses in this case.

       {¶ 28} The situation here is different from the situation in which a defendant

accumulates jail-time credit in two separate cases and accumulates it at the same time. That

was the situation in State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440. In a

previous receiving stolen property case, a community-control sanction had been imposed on

Fugate. While under that sanction, he was arrested on unrelated charges of burglary and theft.

Fugate was held in jail for over 200 days before he was tried on the new charges (and was

found guilty on both). Just before sentencing, the trial court held a hearing in the

community-control case, and Fugate admitted that his convictions for burglary and theft would

violate his previous community control. For the violation, the court sentenced the defendant to

prison on the receiving case. The court also ordered that the prison term be served concurrent

to the prison terms that it would impose for burglary and theft. The trial court granted Fugate

213 days of jail-time credit that he had accumulated while being held awaiting trial on the

burglary and theft charges. Then the court sentenced him to 2 years in prison for the burglary

offense, and at a later re-sentencing, to six months in prison for the theft offense, concurrent to

each other and concurrent to the previous receiving stolen property case. The court did not

grant him any jail-time credit against the burglary and theft sentences.

       {¶ 29} The Ohio Supreme Court reversed. The Court held that “defendants who are

sentenced to concurrent prison terms are entitled to have jail-time credit applied toward all

prison terms for charges on which they were held.” Fugate at ¶ 1. In effect, then, if a
                                                                                            13


defendant accumulates jail-time credit while being held in multiple cases, the full credit must

be applied in each of those cases–a court can’t pick and choose among them. To do so would

allow a sentencing court to apply jail credit only to selected offenses when in reality the

defendant was in custody pending resolution of all.

       {¶ 30} Unlike in Fugate and like in the present case, the trial court in State v. Cole

granted the defendant jail-time credit that he had accumulated before he committed the offense

for which he was sentenced. A community-control sanction had been imposed on the

defendant in a previous case. And in that previous case, the defendant had accumulated 60

days of jail-time credit. While under the sanction, the defendant committed and was arrested

and jailed for felonious assault. Eventually, the defendant pleaded guilty to one count of

felonious assault. He admitted that a felonious-assault conviction would violate community

control. The trial court sentenced the defendant to prison for violating community control and

sentenced him to prison for felonious assault. The court ordered that the prison terms in the

two cases be served concurrently. In the assault case the court granted the defendant jail-time

credit of 83 days, which was all the time in custody that accumulated after he committed the

felonious-assault. And in the community-control-violation case, the court granted him

jail-time credit of 143 days, the same 83 days plus the 60 days that he had accumulated prior

to the existence of the felonious assault charge. This Court reversed. Based on Fugate, the

court held that the defendant was entitled to jail-time credit of 143 days in both cases–despite

the fact that he had accumulated the 60 days on the first case before he committed the assault.

       {¶ 31} I believe that Cole misapplied Fugate. The correct analysis is like the one used

by Judge Yarbrough in State v. Wyburn, 6th Dist. Lucas No. L-10-1292, 2011-Ohio-142,
                                                                                            14


which recognized that Fugate “applies only to a defendant entitled to jail-time credit * * * on

each charge for which he is actually being held.” Wyburn at ¶ 13. The situation in Wyburn was

like that in Cole and that in the present case. The defendant argued that he was entitled to

jail-time credit that he had accumulated while being held in an earlier separate case, “even

though he could not have been ‘held on’ the [later] charge before his arrest [for that charge].”

Id. In effect, said Judge Yarbrough, the defendant was “arguing for a forward application of

the [previous] jail-time credit before his [later] arrest * * *, when he obviously could not have

been held simultaneously on both charges.” (Emphasis sic.) Id. The Wyburn court would not

allow this.

        {¶ 32} I recognize that State v. Cole is the law in this district. And I appreciate the

majority’s reasonable explanation that the Cole result is designed to treat an indigent

defendant the same as an affluent defendant, who can post bond. But I don’t think the decision

always accomplishes that purpose. If the trial court in Cole had administratively terminated the

previous case and sentenced the defendant only in the assault case, the defendant plainly

would not be entitled to the 60 days of jail-time credit: it was time he accumulated in a case

other than the one in which he was sentenced and he accumulated it before he ever committed

the assault.

        {¶ 33} Accordingly, while I agree with the result and analysis of the particular facts

of the case under review, I express my concern that our previous jurisprudence on the issue is

incorrect and conflicts with the Sixth District.

                                         .............
                         15




Copies mailed to:

Mathias H. Heck
Michele D. Phipps
Marshall G. Lachman
Hon. Barbara P. Gorman
