[Cite as State v. Miller, 2020-Ohio-745.]


                           IN THE COURT OF APPEALS OF OHIO
                              FOURTH APPELLATE DISTRICT
                                    SCIOTO COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       :    Case No. 19CA3880
                               :
     vs.                       :
                               :    DECISION AND
STEVE L. MILLER,               :    JUDGMENT ENTRY
                               :
     Defendant-Appellant.      :
_____________________________________________________________
                          APPEARANCES:

Steven L. Miller, Caldwell, Ohio, Appellant, pro se.

Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay Willis, Assistant
Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
_____________________________________________________________

Smith, P.J.

        {¶1} This is an appeal from a Scioto County Common Pleas Court judgment

entry denying Appellant, Steve Miller’s, motion for additional jail time credit. On

appeal, Appellant contends that the trial court denied him equal protection of the

law when it failed to credit related jail time to the prison term it “reimposed.”

Because we conclude the trial court’s decision denying Appellant’s motion for

additional jail-time credit was supported by competent, credible evidence,

Appellant’s sole assignment of error is overruled. Accordingly, the decision of the

trial court is affirmed.
Scioto App. No. 19CA3880                                                                                              2


                                                      FACTS

         {¶2} The record before us indicates that Appellant was originally indicted in

Scioto County, Ohio on June 14, 2011, on three counts of child endangerment and

one count of felonious assault.1 Appellant ultimately pled guilty to a single count

of child endangerment and was sentenced to a four-year prison term on August 19,

2011. Thereafter, he filed a motion for judicial release on May 8, 2013, which was

granted on June 11, 2013. At that time, Appellant was placed on a five-year-term

of community control.

         {¶3} On February 27, 2018, while still on community control in Scioto

County, Appellant was arrested and charged in Pike County, Ohio with domestic

violence against an individual named Alisha Miller, as well as child endangerment

based upon the fact that the domestic violence occurred in the presence of Ms.

Miller’s child, who was unnamed. As a result, an order of arrest was issued by the

Scioto County Court of Common Pleas on March 1, 2018. However, it appears

from the record that Appellant was incarcerated in Pike County from the date of

his arrest on February 27, 2018 until May 28, 2018.2 Thereafter, a request for a

Probable Cause/Revocation of Supervision hearing was filed on June 21, 2018 by

the Scioto County Prosecutor and Chief Probation Officer. The June 21, 2018


1
  The record contains the initial Municipal Court complaint form that preceded the indictment, which alleged that
Appellant abused his two-year-old son, C.M., by striking him about his face and head.
2
  Appellant states in his brief that he was sentenced to a 90-day jail term for the domestic violence conviction in Pike
County.
Scioto App. No. 19CA3880                                                             3


filing indicated that Appellant had been charged with domestic violence and child

endangerment in the Pike County Court and that he had been convicted of the

domestic violence charge. The filing also indicated that while the child

endangerment charge had been dismissed in the Pike County Court, it was pending

indictment by the grand jury. The filing further indicated Appellant had been

charged with domestic violence against an individual named Sidny Shifflat on May

17, 2017, but that the charge had been dismissed.

       {¶4} A probable cause hearing was held in the Scioto County Common

Pleas Court on August 3, 2018. Appellant has not provided this Court with a copy

of that transcript. By a subsequent judgment entry dated August 6, 2018, it appears

the trial court revoked Appellant’s community control and imposed a forty-eight-

month prison sentence. The trial court ordered that Appellant receive 64 days of

jail-time credit towards that prison sentence. Although the trial court did not

specify which dates the 64 days covered, 64 days elapsed between June 1, 2018,

and August 3, 2018, which is the time period Appellant claims in his brief that he

was held in jail in Scioto County awaiting disposition on his community control

violation. Appellant did not file a direct appeal from that decision.

       {¶5} Thereafter, on May 7, 2019, Appellant filed a “Motion for Additional

JTC.” In his motion, Appellant argued that he was entitled to an additional 94 days

of jail-time credit for the period from February 28, 2018, until June 1, 2018.
Scioto App. No. 19CA3880                                                                                             4


Appellant claimed this was the period of time he served in Pike County on the Pike

County charges until he was transferred to Scioto County to answer for the

community control violation. He argued that because the Pike County conviction

was the basis of the Scioto County community control violation, he should have

received jail-time credit towards his forty-eight-month prison term imposed on his

community control violation. The trial court denied Appellant’s motion May 17,

2019, stating in its entry that the time served in Pike County, Ohio could not be

credited to the Scioto County case. It is from this judgment entry that Appellant

now brings his timely appeal, setting forth a single assignment of error for our

review.

                                      ASSIGNMENT OF ERROR

I.      “THE TRIAL COURT DENIED EQUAL PROTECTION OF THE LAW
        WHEN IT FAILED TO CREDIT RE-LATED [SIC] JAIL-TIME [SIC] TO
        THE PRISON TERM IT REIMPOSED.”

                                           LEGAL ANALYSIS

         {¶6} In his sole assignment of error, Appellant contends the trial court

denied him his constitutional right to equal protection of the law by failing to credit

related jail time to the prison term it “reimposed.”3 On appeal, he argues that he



3
  As set forth above, however, a prison term was not “reimposed” by the trial court. Appellant was initially
sentenced to a four-year prison term and then granted judicial release and placed on five years of community
control. The violation of his community control resulted in the imposition of an agreed forty-eight-month prison
term. It is the forty-eight-month prison term that Appellant contends should have been reduced by additional jail-
time credit.
Scioto App. No. 19CA3880                                                             5


should have been granted a total of 155 days of jail-time credit instead of the 64

days calculated by the trial court. The State responds by arguing that Appellant

was not entitled to additional time he claims because that time was served in Pike

County, Ohio for a distinct and separate misdemeanor case in Pike County. Thus,

the State contends the trial court properly denied Appellant’s motion.

       {¶7} Because neither of the parties are challenging the overall sentence

imposed by the trial court, our standard of review is narrowed to the determination

of whether the computation of Appellant’s jail-time credit was proper. State v.

Nutter, 4th Dist. Hocking No. 18CA1, 2018-Ohio-5368, ¶ 12. As noted in Nutter,

Ohio Adm. Code 5120-2-04(B) states that “[t]he court must make a factual

determination of the number of days credit to which a prisoner is entitled by law

* * *.” Id. Thus, the trial court’s findings of fact will be upheld “if the record

contains competent, credible evidence to support them.” State v. Primrack, 4th

Dist. Washington No. 13CA23, 2014-Ohio-1771, ¶ 5, quoting State v. Elkins, 4th

Dist. Hocking No. 07CA1, 2008-Ohio-674, ¶ 20.

       {¶8} We have explained as follows regarding the practice of awarding jail-

time credit:

       “The practice of awarding jail-time credit, although now covered by

       state statute, has its roots in the Equal Protection Clauses of the Ohio

       and United States Constitutions. State v. Fugate, 117 Ohio St.3d 261,
Scioto App. No. 19CA3880                                                            6


       2009-Ohio-856, 883 N.E.2d 440, ¶ 7. The rationale for giving jail-time

       credit ‘is quite simple[;] [a] person with money will make bail while a

       person without money will not.’ Id. at ¶ 25 (Stratton, J., concurring).

       That means for ‘two equally culpable codefendants who are found

       guilty of multiple offenses and receive identical concurrent sentences,’

       the poorer codefendant will serve more time in jail than the wealthier

       one who was able to post bail. Id. at ¶ 25–26. ‘[T]he Equal Protection

       Clause does not tolerate disparate treatment of defendants based solely

       on their economic status.’ Id. at ¶ 7.” State v. Butcher, 4th Dist. Athens

       No. 15CA33, 2017-Ohio-1544, ¶ 107, quoting State v. Williams, 8th

       Dist. Cuyahoga No. 104155, 2016-Ohio-8049, ¶ 12-14.

R.C. 2967.191 codifies this principle in Ohio and provides in pertinent part as

follows:

       The department of rehabilitation and correction shall reduce the prison

       term of a 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, including confinement in lieu of

       bail while awaiting trial * * * as determined by the sentencing court

       under division (B)(2)(g)(i) of section 2929.19 of the Revised Code[.]
Scioto App. No. 19CA3880                                                            7


       (footnote omitted) (Emphasis added). See also State v. Butcher, supra,

       at ¶ 107.

“ ‘Thus, R.C. 2967.191 is inapplicable when the offender is imprisoned as a

result of another unrelated offense.’ ” State v. Nutter, supra, at ¶ 14, quoting

State v. Maddox, 8th Dist. Cuyahoga No. 99120, 2013-Ohio-3140, ¶ 41.

       {¶9} R.C. 2929.19(B)(2)(g)(i) states that:

       [I]f the sentencing court determines at the sentencing hearing that a

       prison term is necessary or required, the court shall * * * [d]etermine,

       notify the offender of, and include in the sentencing entry the total

       number of days, including the sentencing date but excluding

       conveyance time, that the offender has been confined for any reason

       arising out of the offense for which the offender is being sentenced and

       by which the department of rehabilitation and correction must reduce

       the definite prison term imposed on the offender as the offender's stated

       prison term or, if the offense is an offense for which a non-life felony

       indefinite prison term is imposed under division (A)(1)(a) or (2)(a) of

       section 2929.14 of the Revised Code, the minimum and maximum

       prison terms imposed on the offender as part of that non-life felony

       indefinite prison term, under section 2967.191 of the Revised Code.

       The court's calculation shall not include the number of days, if any, that
Scioto App. No. 19CA3880                                                                8


       the offender served in the custody of the department of rehabilitation

       and correction arising out of any prior offense for which the prisoner

       was convicted and sentenced.

       {¶10} Furthermore, R.C. 2929.(B)(2)(g)(iii) provides that sentencing courts

have “ ‘continuing jurisdiction to correct any error not previously raised at

sentencing in making a determination [of the appropriate jail-time credit],’ and

allows offenders, ‘at any time after sentencing, [to] file a motion in the sentencing

court to correct any error made in making a determination [of the appropriate jail-

time credit] * * *.’ ” State v. Butcher at ¶ 108, quoting R.C. 2929.19(B)(2)(g)(iii).

Accord State v. Thompson, 147 Ohio St.3d 29, 2016-Ohio-2769, 59 N.E.3d 1264,

¶ 4-5; State v. Copas, 2015-Ohio-5362, 49 N.E.3d 755, ¶ 19 (4th Dist.); State v.

Thompson, 8th Dist. Cuyahoga No. 102326, 2015-Ohio-3882, ¶ 21-22; State v.

Alredge, 7th Dist. Belmont No. 14BE52, 2015-Ohio-2586, ¶ 10-12. Thus, jail-time

credit errors are not limited to correction on direct appeal, but rather they may also

be corrected through the filing of a motion with the court pursuant to R.C.

2929.19(B)(2)(g)(iii). Butcher at ¶ 109, citing Thompson, supra, at ¶ 23, see also

State v. Ponyard, 8th Dist. Cuyahoga No. 101266, 2015-Ohio-311, ¶ 10-12; State

v. Collins, 8th Dist. Cuyahoga No. 99111, 2013-Ohio-3726, ¶ 22–25.

       {¶11} At issue here is the jail-time credit to be applied to the forty-eight

month prison term imposed by the Scioto County Common Pleas Court for a
Scioto App. No. 19CA3880                                                                                            9


violation of Appellant’s five-year term of community control that was imposed

after judicial release was granted to Appellant, who was serving a four-year prison

term imposed by the Scioto County court in 2011 for child endangerment. It

appears from the record that the trial court granted Appellant 64 days of jail-time

credit towards his forty-eight-month prison term. Although the trial court did not

expressly state the dates the credit covered, this timeframe is consistent with

Appellant’s representation to this Court that he was transported back to Scioto

County on June 1, 2018, where he was held until he was sentenced on August 3,

2018. Appellant argues he was entitled to 91 additional days of jail-time credit for

time served in Pike County. Because the offenses committed in Pike County

served as the basis for the probation violation, Appellant argues he should receive

credit.

          {¶12} Here, the record indicates Appellant was arrested for the commission

of new domestic violence and child endangerment offenses that occurred in Pike

County on February 27, 2018, while he was still under a community control

sanction in Scioto County.4 Because the commission of the new offenses in Pike

County constituted a violation of the terms of Appellant’s community control in



4
  The following violations of community control were alleged by the State: 1) causing physical harm to Alisha
Miller in the presence of her child resulting in a domestic violence conviction in Pike County, Ohio; 2) having a
child endangerment charge filed against him in Pike County, Ohio that was dismissed but was pending indictment
by the grand jury; and 3) having a domestic violence charge against a juvenile filed against him on May 17, 2017,
that was dismissed.
Scioto App. No. 19CA3880                                                             10


Scioto County, an order of arrest was issued by the Scioto County Common Pleas

Court on March 1, 2018. However, based upon documents that were provided by

the Pike County Sheriff’s Office, which were attached to Appellant’s motion for

additional jail-time credit, it appears Appellant was booked into the jail in Pike

County on February 27, 2018, and that his “out date,” or date of release was May

28, 2018. A note contained in the Pike County Sheriff’s Office records dated May

28, 2018 states as follows:

           INMATE RELEASED ON PIKE COUNTY CHARGES. INMATE

           HAS A WARRANT OUT OF SCIOTO COUNTY, PICK RADIUS

           OF ONE, NOBLE COUNTY WAS CONTACTED AND MADE

           AWARE OF SITUATION. RELEASE AUTHORIZATION FAXED

           TO NOBLE COUNTY.5

Although Appellant states in his brief that he was held in jail in Pike County from

May 28, 2018, to June 1, 2018, pending pickup by the Scioto County Sheriff, there

is no evidence in the record to confirm this. Furthermore, although a probable

cause/revocation hearing was held in Scioto County on August 3, 2018, Appellant

has not provided this Court with a transcript of those proceedings. While review of

that transcript may answer the questions regarding when Appellant was transported

back to Scioto County, it is not part of the record. Thus, although it appears


5
    There is no explanation in the record as to why Noble County was contacted.
Scioto App. No. 19CA3880                                                             11


reasonable to believe that Appellant may have been held in Pike County on a

Scioto County probation holder in light of the fact that the Scioto County Court of

Common Pleas had issued an order of arrest for Appellant on March 1, 2018, we

have no actual evidence confirming this fact and this Court will not engage in

speculation as to what exactly occurred during those three days.

       {¶13} Moreover, Appellant does not argue he is entitled to only three

additional days of jail-time credit, he argues that he is entitled 91 additional days of

jail-time credit for the period between March 1, 2018 (presumably the date the

Scioto County order of arrest was issued) to June 1, 2018 (the date Appellant

claims he was transported from Pike County to Scioto County). Appellant argues

that he is entitled to jail-time credit for the time served on the Pike County offenses

because they served as the basis for the revocation of his community control.

However, contrary to Appellant’s arguments and other than constituting a violation

of his community control, there is no indication in the record before us that the

offenses were related to the offense for which Appellant was serving a term of

community control (which related back to his original child endangerment

conviction in Scioto County that occurred in 2011). See R.C. 2967.191(A) (stating

that the prison term shall be reduced by the total number of days the prisoner “was

confined for any reason arising out of the offense for which the prisoner was

convicted and sentenced * * *.”) (Emphasis added).
Scioto App. No. 19CA3880                                                               12


       {¶14} Further, as explained in State v. Moore, 2016-Ohio-3510, 67 N.E.3d

68, ¶ 19 (11th Dist.), the fact that convictions in another county “provided part of

the basis” for a probation violation in another county “does not create a

relationship with the original underlying charges requiring jail-time credit.”), citing

State v. Olmstead, 5th Dist. Richland No. 2007-Ohio-CA-119, 2008-Ohio-5884,

¶ 19 (jail-time credit for an arrest on a probation violation “can only be credited

toward the sentence on the original charge i.e., the one for which he was sentenced

to probation”); see also State ex rel. Croake v. Trumbull County Sheriff, et al., 68

Ohio App.3d 245, 247, 587 N.E.2d 978 (11th Dist.1990) (holding that inmate was

not entitled to credit for time served in another jurisdiction for other offenses).

Here, Appellant was ordered to serve a five-year term of community control

related to his underlying 2011 Scioto County conviction for child endangering.

Again, there is no evidence in the record before us to indicate that the Pike County

charges and conviction were related to the underlying Scioto County conviction

from 2011. Thus, it cannot be said that time served in Pike County arose out of the

offense for which Appellant was convicted and sentenced in Scioto County. As a

result, he is not entitled to the additional jail-time credit he is claiming.

       {¶15} Because we conclude the trial court’s denial of Appellant’s motion for

additional jail-time credit was supported by competent, credible evidence, we

cannot conclude the trial court erred in denying the motion. Thus, Appellant’s sole
Scioto App. No. 19CA3880                                                            13


assignment of error is overruled. Accordingly, the decision of the trial court is

affirmed.

                                                    JUDGMENT AFFIRMED.
Scioto App. No. 19CA3880                                                              14


                               JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.
       The Court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate issue out of this Court directing the
Scioto County Common Pleas Court to carry this judgment into execution.
       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.
       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Abele, J. & Hess, J.: Concur in Judgment & Opinion.
                                 For the Court,
                           BY: __________________________________
                               Jason P. Smith
                               Presiding Judge
                             NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
