[Cite as State v. Quinteros, 2017-Ohio-8825.]


                                        COURT OF APPEALS
                                      HOLMES COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                         Hon. W. Scott Gwin, J.
                                                   Hon. William B. Hoffman, J.
-vs-
                                                   Case No. 17CA002
WILBUR E. QUINTEROS

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Holmes County Common
                                                Pleas Court, Case No. 16CR056


JUDGMENT:                                       Reversed and Remanded

DATE OF JUDGMENT ENTRY:                         December 1, 2017

APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

SEAN M. WARNER                                  TODD E. CHEEK
Prosecuting Attorney                            Todd E. Cheek Law Offices, LLC
Holmes County, Ohio                             111 S. Buckeye St., Ste 235
164 E. Jackson Street                           Wooster, Ohio 44691
Millersburg, Ohio 44654
Holmes County, Case No. 17CA002                                                           2

Hoffman, J.


       {¶1}    Defendant-appellant Wilbur Quinteros1 appeals the December 23, 2016

Journal Entry entered by the Holmes County Court of Common Pleas, which found him

guilty of one count of aggravated menacing, in violation of R.C. 2903.21(A) and (B), and

sentenced him to a six month period of incarceration with fifteen (15) days credit for jail

time served. Appellant also appeals the January 31, 2017 Journal Entry, which credited

him an additional eleven (11) days against his sentence for a total of twenty-six (26) days

of jail time credit. Plaintiff-appellee is the state of Ohio.

                                   STATEMENT OF THE CASE2

       {¶2}    On August 19, 2016, a complaint was filed in the Holmes County Municipal

Court, charging Appellant with one count of aggravated menacing, in violation of R.C.

2903.21(A) and (B).       Appellant was arrested on August 22, 2016, and remained

incarcerated until September 2, 2016, when he posted bond. After waiving his right to a

preliminary hearing, Appellant was bound over to the Holmes County Court of Common

Pleas. On September 19, 2016, the Holmes County Grand Jury indicted Appellant on one

count of aggravated menacing, in violation of R.C. 2903.21(A) and (B), a felony of the fifth

degree. Appellant appeared before the trial court for arraignment on September 27, 2016,

and entered a plea of not guilty to the Indictment.




1
  Appellant’s first name is spelled “W- I-L-B-U-R” on the majority of the documents filed in
the proceedings below. However, Appellant spelled his name “W-I-L-B-E-R” on the
Affidavit of Indigency.
2
  A Statement of the Facts underlying this matter is not necessary for our disposition of
this appeal.
Holmes County, Case No. 17CA002                                                               3


        {¶3}   Appellant’s bond was revoked on November 2, 2016, after he tested

positive for marijuana. The trial court issued a warrant for his arrest. Appellant was

arrested on November 7, 2016. On November 15, 2016, the Holmes County Municipal

Court sentenced Appellant on a probation violation in an unrelated matter. The sentence

on the probation violation expired on December 7, 2016, but Appellant remained

incarcerated on the instant charge until December 23, 2016.

        {¶4}   On December 22, 2016, Appellant appeared before the trial court and

entered a plea of guilty to one count of aggravated menacing, a misdemeanor of the first

degree. The trial court found Appellant guilty and sentenced him to a period of six months

in county jail. The trial court credited Appellant with 15 days for time served. The trial court

memorialized Appellant’s conviction and sentence via Journal Entry filed December 23,

2016.

        {¶5}   On January 3, 2017, Appellant filed a Motion for Hearing and Increase of

Jail Time Credit, asserting he was entitled to 58 days of jail time credit. Appellee filed a

memorandum in opposition in which it maintained Appellant was only entitled to 23 days

of jail time credit. Via Journal Entry filed January 31, 2017, the trial court granted

Appellant an additional 11 days of jail time credit, for a total of 26 days.

        {¶6}   Appellant filed a motion for stay on March 2, 2017, requesting the trial court

stay the remaining 32 days of his sentence. On the same day, Appellant filed a motion

for leave to appeal, which this Court granted. The trial court did not rule on Appellant’s

motion for stay.

        {¶7}   It is from the December 23, 2016, and January 31, 2017 Journal Entries

Appellant appeals, raising the following as error:
Holmes County, Case No. 17CA002                                                              4


       {¶8}   THE TRIAL COURT’S CALCULATION OF CREDIT FOR TIME SERVED

IS CONTRARY TO LAW.

                                                  I

       {¶9}   Initially, we note the trial court sentenced Appellant to a period of

incarceration of six months, commencing December 23, 2016.               Although Appellant

requested a stay, the trial court never ruled on his motion. Appellant did not request a

stay with this Court. It appears Appellant has served his entire sentence; therefore, any

error in the trial court’s calculation of his jail time credit is moot. Nonetheless, in the

interest of justice, we will address Appellant’s sole assignment of error.

       {¶10} Appellant asserts the trial court erred in calculating his jail time credit.

Specifically, Appellant argues he was entitled to a total of 58 days of jail time credit rather

than the 26 days determined by the trial court. We agree, in part.

       {¶11} R.C. 2967.191 governs the issue of jail time credit, and provides a prisoner

shall receive jail-time credit 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.” (Emphasis added.)

       {¶12} As thoroughly analyzed by this Court in State v. Marini, 5th Dist.

Tuscarawas No. 09–CA–6, 2009–Ohio–4633, ¶ 16, “Ohio courts have repeatedly

recognized that time spent serving a jail sentence in another case will not be credited

toward another felony case, even if the felony was pending at the time of the service of

the jail sentence.”

       {¶13} In Marini, this Court stated:
Holmes County, Case No. 17CA002                                                              5


               The case law confirms that the felony offense of conviction must be

       a legal cause for the defendant's prior confinement in order for that

       confinement to be creditable. As the Tenth District Court of Appeals stated

       in State v. Smith (1992), 71 Ohio App.3d 302, 304, 593 N.E.2d 402, “R.C.

       2967.191 requires that jail credit be given only for the time the prisoner was

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

       convicted and sentenced. It does not entitle a defendant to jail-time credit

       for any period of incarceration which arose from facts which are separate

       and apart from those on which his current sentence is based.” Id. at ¶ 5.



       {¶14} As the statutes and case law indicate, Appellant cannot receive jail time

credit in this case for his confinement on the probation violation in a different matter. Each

sentence arose out of unrelated cases. “The language of R.C. 2967.191 does not allow

the convicted person to turn his confinement for various convictions into a ‘bank’ of jail

time that he ‘withdraw’ as needed for pending felony offenses.” Id. at ¶ 22.

       {¶15} The trial court gave Appellant jail time credit for the 26 days he was

incarcerated in the Holmes County Jail prior to entering his plea. Appellant was not

entitled to credit for the period between November 15, 2016, and December 7, 2016,

during which he was serving his sentence on an unrelated probation violation.

       {¶16} In its brief to this Court, the state of Ohio offered the following calculation of

jail time credit:
Holmes County, Case No. 17CA002                                                        6


              Defendant is entitled to 12 days credit for his incarceration on this

       case from August 22, 2016 until he posted bond on September 2, 2016.

       Defendant’s bond was revoked in this case and he jailed again on

       November 7, 2016. He remained jailed on this case until November 15,

       2016 when he was sentenced on a probation violation in Holmes County

       Municipal Court. Defendant is entitled to 9 days credit for the November

       period. Defendant was released from his municipal court sentence on

       December 7, 2017 but remained jailed on this case until December 23, 2016

       when he was sentenced to six months in the county jail. This period spans

       17 days. Therefore, Defendant is entitled to 38 days credit for the periods

       of 12 and 9 and 17 days when he was jailed for the offense for which he is

       being sentenced in this case.



       {¶17} Upon review, we agree with the jail time credit calculation proffered by the

state of Ohio. We find Appellant is entitled to 38 days of jail time credit.

       {¶18} Appellant's sole Assignment of Error is sustained.
Holmes County, Case No. 17CA002                                                    7


      {¶19} The judgment of the Holmes County Court of Common Pleas is reversed.

By: Hoffman, J.

Delaney, P.J. and

Gwin, J. concur
