[Cite as State v. Primack, 2014-Ohio-1771.]


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

STATE OF OHIO,                        :    Case No. 13CA23
                                      :
     Plaintiff-Appellee,              :
                                      :    DECISION AND
     v.                               :    JUDGMENT ENTRY
                                      :
JONATHAN D. PRIMACK,                  :
                                      :    RELEASED: 04/17/14
     Defendant-Appellant.             :
______________________________________________________________________
                            APPEARANCES:

Jonathan D. Primack, Pickaway Correctional Institution, Orient, Ohio, pro se appellant.

James E. Schneider, Washington County Prosecuting Attorney, and Alison L. Cauthorn,
Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for appellee.
______________________________________________________________________
Harsha, J.

        {¶1}     Jonathan Primack pleaded guilty to trafficking in drugs and now appeals

his 30 month sentence. The trial court ordered his sentence to run concurrently to a

sentence he was currently serving from Tuscarawas County. Citing State v. Fugate,

117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, Primack argues that the trial court

erred by not granting him jail-time credit for the days he spent incarcerated on his

Tuscarawas County conviction while he was awaiting disposition of the charge in this

case. However, Primack’s reliance on Fugate is misplaced because it did not negate

the basic principle that a defendant is not entitled to credit under R.C. 2967.191, for time

incarcerated for unrelated offenses. Thus, we reject his argument and affirm the trial

court’s judgment.

                                              I. FACTS
Washington App. No. 13CA23                                                                  2

       {¶2}   In June 2012, the Washington County Grand Jury returned an indictment

charging Primack with one count of aggravated trafficking in drugs and a warrant was

issued for his arrest. In December 2012, Primack pleaded guilty to other drug related

offenses in Tuscarawas County and received a two year sentence. When Primack

entered the state prison system on December 11, 2012, he became aware of the

untried indictment in Washington County and the outstanding warrant for his arrest.

Subsequently he filed a motion with the Washington County Prosecutor for the timely

and final disposition of his pending charge.

       {¶3}   Pursuant to a plea agreement, Primack pleaded guilty to trafficking in

drugs (Oxycodone). The state recommended that his sentence run concurrently to his

prison sentence from Tuscarawas County from the date of May 8, 2013, which was the

date that Primack told the prosecutor he would plead guilty. The trial court found

Primack guilty and proceeded to sentencing. Defense counsel argued that Primack

should receive jail-time credit from the date he requested disposition of the indictment,

February 11, 2013. The trial court imposed a 30 month sentence to be served

concurrently to Primack’s sentence from Tuscarawas County and credited him with two

days of jail time. Defense counsel objected to the court’s calculation of Primack’s jail-

time credit and this appeal followed.

                              II. ASSIGNMENT OF ERROR

       {¶4}   Primack raises one assignment of error for our review:

       1. THE TRIAL COURT ERRED BY NOT CREDITING DEFENDANT WITH THE
       PROPER AMOUNT OF JAIL-TIME CREDIT ON CONCURRENT SENTENCES.

                                III. LAW AND ANALYSIS

                                  A. Standard of Review
Washington App. No. 13CA23                                                                   3

       {¶5}    “A trial court must make a factual determination of the number of days

credit to which a prisoner is entitled by law. See Ohio Adm.Code 5120-2-04(B).

Therefore, we must uphold the trial court[’]s findings of fact if the record contains

competent, credible evidence to support them.” State v. Elkins, 4th Dist. Hocking No.

07CA1, 2008-Ohio-674, ¶ 20.

                  B. Was Primack Entitled to Additional Jail-Time Credit?

       {¶6}    “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.” Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, at ¶ 7.

The Equal Protection Clause requires that defendants who are unable to afford bail

must be credited for the time they are confined while awaiting trial. Id. “‘The rationale

for [giving jail-time credit] is quite simple. A person with money will make bail while a

person without money will not. If both persons are given identical sentences, the reality

is that unless the person who did not make bail is given credit for his pretrial time, the

poorer person will have served more time than the other. Unequal treatment based on

personal wealth is anathema to the Constitution as a denial of equal protection.’” Id. at

¶ 25 (Lundberg Stratton, J., concurring), quoting State v. Thorpe, 10th Dist. Franklin

Nos. 99AP-1180 through 99AP-1187, 2000 WL 966702, *3 (June 30, 2000) (Grey, J.

dissenting).

       {¶7}    This principle is codified in R.C. 2967.191, which states that “[t]he

department of rehabilitation and correction shall reduce the stated 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
Washington App. No. 13CA23                                                                 4

confinement in lieu of bail while awaiting trial * * *.” “Thus, R.C. 2967.191 is inapplicable

when the offender is imprisoned as a result of another unrelated offense. * * * This

means that there is no jail-time credit for time served on unrelated offenses, even if that

time served runs concurrently during the pre-detention phase of another matter.” State

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

       {¶8}   Primack argues that the trial court improperly credited him with only two

days jail time. Specifically he contends that he should have received 157 days credit for

the time he spent in prison serving his sentence from Tuscarawas County while he was

awaiting disposition of this case because “an active arrest warrant was pending against

him, and he would not have been released from confinement, without posting bail in

Washington County.” To support his argument Primack relies on Fugate, however, his

reliance on that case is misplaced.

       {¶9}   In Fugate, the defendant committed burglary and theft while on community

control. He was held in jail awaiting disposition of his community control violation and

burglary and theft case. The trial court imposed a 12 month sentence for the

community control violation and credited him with the time he spent in jail. The trial

court also imposed a two year sentence for the defendant’s burglary conviction, to run

concurrently to his term for the community control violation. However, the court did not

apply any jail-time credit in that case.

       {¶10} On appeal the defendant argued that he should have received jail-time

credit in his burglary case, as well as his community control violation. The Ohio

Supreme Court held:

       when concurrent prison terms are imposed, courts do not have the
       discretion to select only one term from those that are run concurrently
Washington App. No. 13CA23                                                                     5

       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.

Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, at ¶ 12.

       {¶11} Fugate is distinguishable from this case and does not support Primack’s

claim that he should receive jail-time credit for the time he served after his conviction in

Tuscarawas County but before sentencing in his Washington County case. See State

v. Doyle, 10th Dist. Franklin Nos. 12AP-567, 12AP-794, 12AP-568, 12AP- 793, 2013-

Ohio-3262, ¶ 24. “Fugate did not negate the basic principle that ‘a defendant is not

entitled to jail-time credit for time incarcerated in another county for unrelated offenses.’”

State v. McKinney, 7th Dist. Mahoning No. 12 MA 163, 2013-Ohio-4357, ¶ 12, quoting

State v. Daughenbaugh, 3rd Dist. Wyandot, No. 16-09-05, 2009-Ohio-3823, ¶ 19. See

also State v. Ways, 2nd Dist. Montgomery No. 25214, 2013-Ohio-293, ¶ 20 (defendant

not entitled to jail-time credit for “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”).

       {¶12} Here, Primack was serving a 24 month prison term for his Tuscarawas

County conviction when he was returned to Washington County and held in jail on his

pending drug trafficking charge. Thus, once Primack was convicted in Tuscarawas

County and began serving his sentence he could not have posted bond and been

released while awaiting disposition of his new drug trafficking case. See State v.
Washington App. No. 13CA23                                                                    6

Smiley, 8th Dist. Cuyahoga No. 99486, 2013-Ohio-4495, ¶ 13-14; McKinney at ¶ 12.

“Therefore, the trial court’s refusal to give jail-time credit did not offend the notion of

equal protection, which, as the Fugate court explained, is the overall objective of jail-

time credit.” Smiley at ¶ 24, citing Fugate at ¶ 11.

       {¶13} Primack contends his convictions in Tuscarawas and Washington

Counties were “part of the same criminal investigation” and the result of a “continuing

course of criminal conduct.” However, his confinement in this case did not “aris[e] out of

the offense for which [he] was convicted and sentenced,” in Tuscarawas County as

required by R.C. 2967.191. Thus, the time Primack spent incarcerated prior to his

conviction in this case does not count under R.C. 2967.191 because “it was due to

different offenses.” Elkins, 4th Dist. Hocking No. 07CA1, 2008-Ohio-674, at ¶ 26.

                                      IV. CONCLUSION

       {¶14} Accordingly, the trial court did not err by failing to grant Primack jail-time

credit for the time he spent incarcerated for his Tuscarawas County convictions prior to

sentencing in this case. We overrule his sole assignment of error and affirm the trial

court’s judgment.

                                                                    JUDGMENT AFFIRMED.
Washington App. No. 13CA23                                                                    7

                                    JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the
Washington County Court of Common Pleas 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, P.J. & McFarland, J.: Concur in Judgment and Opinion.


                                            For the Court


                                            BY: ________________________
                                                William H. Harsha, 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.
