[Cite as State v. Fuller, 2013-Ohio-5661.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                HENRY COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 7-13-06

        v.

TIMOTHY FULLER,                                          OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Henry County Common Pleas Court
                            Trial Court No. 13CR0009

                        Judgment Reversed and Cause Remanded

                          Date of Decision:   December 23, 2013




APPEARANCES:

        Alan J. Lehenbauer for Appellant

        Gwen Howe-Gebers and David E. Romaker, Jr. for Appellee
Case No. 7-13-06


PRESTON, P.J.

         {¶1} Defendant-appellant, Timothy Fuller, appeals the Henry County Court

of Common Pleas’ judgment entry of sentence.                          We reverse and remand for

resentencing.

         {¶2} On February 12, 2013, the Henry County Grand Jury indicted Fuller

on four counts:          Count One of menacing by stalking in violation of R.C.

2903.211(A)(1), (B)(2)(c), (f), (g), and (h), a fourth-degree felony; Count Two of

receiving stolen property in violation of R.C. 2913.51, a first-degree misdemeanor;

Count Three of violation of protection order in violation of R.C. 2919.27(A),

(B)(4), a third-degree felony; and, Count Four of violation of protection order in

violation of R.C. 2919.27(A), (B)(3), a fifth-degree felony. (Doc. No. 1). (See

also Doc. No. 42).1

         {¶3} On February 21, 2013, Fuller entered pleas of not guilty to the counts

of the indictment. (Doc. No. 10).

         {¶4} On April 3, 2013, Fuller and plaintiff-appellee, State of Ohio, reached

a plea agreement, and the trial court held a change-of-plea hearing that day. (See

Apr. 3, 2013 Tr. at 2); (Doc. No. 42). As part of the plea agreement, the State

agreed to dismiss Counts One and Two at the time of sentencing and to amend

Count Three to a violation of protection order in violation of R.C. 2919.27(A),

1
  The parties suggest in their briefs that Fuller was indicted in November 2012; however, the record reflects
that the four-count indictment was filed on February 12, 2013 for conduct that allegedly took place in
November 2012. (See Doc. No. 1).

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(B)(3), a fifth-degree felony. (Id. at 2-3); (Id.). In return, Fuller agreed to plead

guilty to Count Three, as amended, and Count Four. (Id.); (Id.).

       {¶5} The trial court granted the State’s motion to amend Count Three.

(Id.); (Doc. No. 43). The trial court also granted Fuller’s request for leave of court

to withdraw his pleas of not guilty to Counts Three and Four and to enter pleas of

guilty to Count Three, as amended, and Count Four. (Id. at 19-20); (Id.). The trial

court accepted Fuller’s guilty pleas and found him guilty on Count Three, as

amended, and Count Four. (Id. at 20); (Id.).

       {¶6} The trial court held a sentencing hearing on May 6, 2013. (May 6,

2013 Tr. at 2); (Doc. No. 44). At the hearing, the trial court dismissed Counts One

and Two after granting the State’s motion to dismiss those counts. (Id. at 3); (Id.).

The State recommended that the trial court impose a 10-month prison sentence for

Count Three and an 8-month prison sentence for Count Four, to be run

consecutively. (May 6, 2013 Tr. at 11). After hearing statements from Fuller’s

ex-wife, counsel for the State, Fuller, and counsel for Fuller, the trial court

sentenced Fuller to 12 months at the Corrections Center of Northwest Ohio

(CCNO), a regional jail, on Count Three as part of community control and ordered

that he “participate in the HITT Program, if eligible.” (Id. at 20-21); (Doc. No.

44). On Count Four, the trial court sentenced Fuller to five years of community

control “upon the standard terms and conditions of the Henry County Adult


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Probation.” (Id. at 21); (Id.). The trial court “further ordered” that, if Fuller

violated the terms of his community control, “he be ordered to serve” 12 months

in prison, which could be followed by three years of post-release control pursuant

to R.C. 2967.28(C). (Id. at 21); (Doc. No. 44). The trial court referred to the 12-

month prison term for a community-control violation as a “reserve prison term.”

(May 6, 2013 Tr. at 21-22). At the sentencing hearing, the trial court informed

Fuller that 162 days for time served would be credited were he to be imprisoned

following a violation of his community control. (Id. at 21).

         {¶7} On May 9, 2013 at 9:07 a.m., the trial court filed a judgment entry

reflecting its sentence, although the trial court omitted from that judgment entry its

order concerning credit for time served. (Doc. No. 44). At 11:00 a.m. that

morning, Fuller filed a pro se motion to reduce his jail sentence by 165 days for

time served. (Doc. No. 45). The trial court filed a judgment entry at 11:01 a.m.

that morning acknowledging Fuller’s pro se motion and stating that he would be

credited for time served if he violated his community control and was sent to

prison. (Doc. No. 46).2 Also in its May 9, 2013 11:01 a.m. judgment entry, the

trial court stated that the sentences it imposed were to be served consecutively.

(Id.).


2
 In its May 9, 2013 11:01 a.m. judgment entry, the trial court said that its May 9, 2013 9:07 a.m. judgment
entry provided that Fuller “was to serve 12 months at [CCNO] commencing May 6, 2013 on Count I.”
(Doc. No. 46). However, the May 9, 2013 9:07 a.m. judgment entry reflects that the trial court imposed the
12-month jail sentence for Count Three, and it dismissed Count One. (Doc. No. 44).

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       {¶8} On June 5, 2013, Fuller filed a notice of appeal challenging the trial

court’s May 9, 2013 9:07 a.m. and May 9, 2013 11:01 a.m. judgment entries.

(Doc. No. 47). He raises three assignments of error for our review. Because they

are dispositive, we address Fuller’s first and third assignments of error.

                            Assignment of Error No. I

       The trial court erred in imposing a twelve month jail sentence
       upon appellant as the trial court was required to sentence
       appellant to a term of community control pursuant to R.C.
       2929.13 and R.C. 2929.16.

       {¶9} In his first assignment of error, Fuller argues that the trial court erred

by imposing a 12-month jail sentence.          Specifically, Fuller argues that R.C.

2929.13(B)(1)(a) does not apply in his case, that the trial court was required by

R.C. 2929.13(B)(3)(b) to impose a sentence of community control, and that his 12-

month jail sentence exceeds the 6-month maximum found in R.C. 2929.16(A)(2).

       {¶10} A trial court’s sentence will not be disturbed on appeal absent a

defendant’s showing by clear and convincing evidence that the sentence is

unsupported by the record; that the sentencing statutes’ procedure was not

followed or there was not a sufficient basis for the imposition of a prison term; or

that the sentence is contrary to law. State v. Ramos, 3d Dist. Defiance No. 4-06-

24, 2007-Ohio-767, ¶ 23 (the clear and convincing evidence standard of review set

forth under R.C. 2953.08(G)(2) remains viable with respect to those cases

appealed under the applicable provisions of R .C. 2953.08(A), (B), and (C) * * *);

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State v. Rhodes, 12th Dist. Butler No. CA2005-10-426, 2006-Ohio-2401, ¶ 4;

State v. Tyson, 3d Dist. Allen Nos. 1-04-38 and 1-04-39, 2005-Ohio-1082, ¶ 19,

citing R.C. 2953.08(G).

      {¶11} Clear and convincing evidence is that “which will produce in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be

established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus; State v. Boshko, 139 Ohio App.3d 827, 835 (12th Dist.2000).           An

appellate court should not, however, substitute its judgment for that of the trial

court because the trial court is “‘clearly in the better position to judge the

defendant’s dangerousness and to ascertain the effect of the crimes on the

victims.’” State v. Watkins, 3d Dist. Auglaize No. 2-04-08, 2004-Ohio-4809, ¶ 16,

quoting State v. Jones, 93 Ohio St.3d 391, 400 (2001).

      {¶12} Fuller pled guilty to and was found guilty of two fifth-degree

felonies, and the trial court sentenced Fuller to a 12-month jail term on one count

and five years of community control on the other count. (Doc. No. 43). R.C.

2929.13(B)(1)(a) sets forth circumstances under which a trial court is required to

sentence an offender to a 12-month community-control sanction for a fourth or

fifth-degree felony that is not an offense of violence, and R.C. 2929.13(B)(1)(b)

sets forth circumstances under which a trial court has discretion to sentence an

offender to a prison term for a fourth or fifth-degree felony that is not an offense


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Case No. 7-13-06


of violence. See State v. Spencer, 3d Dist. Hardin Nos. 6-12-15 and 6-12-16,

2013-Ohio-137, ¶ 21. Here, because neither party argues that Fuller was required

to serve a prison term, and because the trial court sentenced Fuller to community

control, not a prison term, on both counts, we need not address Fuller’s argument

that the trial court was required to sentence him to community control.

      {¶13} The parties also agree that the duration of Fuller’s jail sentence

exceeded the statutory limit set forth in R.C. 2929.16 and, therefore, was contrary

to law. We agree with the parties. If a trial court is not required to sentence a

felony offender to a prison term, R.C. 2929.15 allows the trial court to “directly

impose a sentence that consists of one or more community control sanctions

authorized [by R.C. 2929.16, 2929.17, or 2929.18] * * *.” State v. Williams, 3d

Dist. Hancock No. 5-10-02, 2011-Ohio-995, ¶ 18-19, quoting R.C. 2929.15(A)(1).

R.C. 2929.16 allows a trial court to impose one or more of the following

community residential sanctions on an offender:

      (1) A term of up to six months at a community-based correctional

      facility that serves the county;

      (2) Except as otherwise provided in division (A)(3) of this section

      and subject to division (D) of this section, a term of up to six months

      in a jail;




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         (3) If the offender is convicted of a fourth degree felony OVI

         offense and is sentenced under division (G)(1) of section 2929.13 of

         the Revised Code, subject to division (D) of this section, a term of

         up to one year in a jail less the mandatory term of local incarceration

         of sixty or one hundred twenty consecutive days of imprisonment

         imposed pursuant to that division;

         (4) A term in a halfway house;

         (5) A term in an alternative residential facility.

R.C. 2929.16(A).

         {¶14} Here, the trial court sentenced Fuller to 12 months at CCNO, a

regional jail, on Count Three, as amended.                       Under R.C. 2929.16(A)(2), the

maximum jail term the trial court could have imposed was 6 months. Because the

trial court’s jail sentence on Count Three exceeded the maximum allowed jail

term, it is contrary to law. See State v. Snyder, 3d Dist. Seneca No. 13-11-37,

2012-Ohio-3069, ¶ 21. Therefore, we sustain Fuller’s first assignment of error,

reverse the trial court’s sentence on Count Three,3 and remand for resentencing.4


3
  Fuller has not assigned error challenging the trial court’s sentence on Count Four, and we do not address
it in this Opinion.
4
  The trial court’s judgment entry containing its 12-month jail sentence on Count Three did not state that it
was a community-control sanction, although the trial court stated at the sentencing hearing that it sentenced
Fuller to 12 months in jail “under community control.” (Doc. No. 44); (May 6, 2013 Tr. at 20, 22). In
addition, the trial court’s imposition of consecutive sentences for Counts Three and Four and its findings
concerning jail-time credit were contained in a subsequent, separate judgment entry, rather than a nunc pro
tunc entry. (Doc. No. 46). These are issues that the trial court may remedy upon resentencing. See
Crim.R. 32(C).

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       {¶15} Finally, the parties differ in their opinions as to the applicability of

R.C. 2929.13(B)(1)(a) and whether the trial court was required to sentence Fuller

to a 12-month community-control sanction.          Because we are remanding for

resentencing, we need not address this issue.

                           Assignment of Error No. III

       The trial court erred by not granting appellant jail time credit in
       accordance with Ohio Revised Code sections 2949.08 and
       2967.191.

       {¶16} In his third assignment of error, Fuller argues that the trial court erred

by not reducing his jail sentence by the amount of his pretrial confinement.

Specifically, Fuller argues that R.C. 2949.08 and 2967.191 required the trial court

to reduce his sentence and that by awarding him jail-time credit for potential

prison time he might serve if he violates the terms of his community-control

sentence on Count Four, the trial court violated the Double Jeopardy Clause and

the rule of lenity.

       {¶17} As with Fuller’s first assignment of error, we apply a clear-and-

convincing standard of review to the trial court’s decision concerning jail-time

credit relative to the sentence it imposed on Fuller. That is, we examine whether

Fuller has demonstrated by clear and convincing evidence that the trial court failed

to properly award him jail-time credit pursuant to R.C. 2949.08 and 2967.191. See




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Ramos, 2007-Ohio-767, at ¶ 23; Rhodes, 2006-Ohio-2401, at ¶ 4; Tyson, 2005-

Ohio-1082, at ¶ 19.

       {¶18} The trial court sentenced Fuller to a 12-month jail term as part of his

community control for Count Three but did not award him jail-time credit for that

sentence. Rather, the trial court said that jail-time credit would be given to Fuller

if he violated his community control and was sentenced to prison as a result. We

conclude that the trial court erred by awarding jail-time credit in this manner.

       {¶19} Fuller cites two statutes in support of his argument that the trial court

was required to reduce his jail sentence: R.C. 2967.191 and 2949.08. R.C.

2967.191 governs jail-time credit for prison terms and provides 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 * * *.” See State v. Slappey, 3d Dist. Marion No. 9-12-58, 2013-Ohio-

1939, ¶ 37. Under R.C. 2967.191, a defendant is entitled to jail-time credit only

for confinement that is related to the offense for which he or she is being

sentenced. Id., citing State v. Duaghenbaugh, 3d Dist. Wyandot No. 16-09-05,

2009-Ohio-3823, ¶ 18. “Accordingly, a defendant is not entitled to jail-time credit

for any period of incarceration that arises from facts separate and apart from those

on which the current sentence is based.”         Id., citing Duaghenbaugh at ¶ 18.


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“While the Adult Parole Authority has the duty to grant jail time credit, the trial

court has the duty to properly calculate the number of days to be credited.” State

v. Eaton, 3d Dist. Union No. 14-04-53, 2005-Ohio-3238, ¶ 9.

       {¶20} The other statute Fuller cites is R.C. 2949.08. That statute governs

jail-time credit for terms of incarceration in jail and provides, in relevant part:

       (A) When a person who is convicted of or pleads guilty to a felony

       is sentenced to a community residential sanction in a community-

       based correctional facility pursuant to section 2929.16 of the

       Revised Code or when a person who is convicted of or pleads guilty

       to a felony or a misdemeanor is sentenced to a term of imprisonment

       in a jail, the judge or magistrate shall order the person into the

       custody of the sheriff or constable, and the sheriff or constable shall

       deliver the person with the record of the person’s conviction to the

       jailer, administrator, or keeper, in whose custody the person shall

       remain until the term of imprisonment expires or the person is

       otherwise legally discharged.

       (B) The record of the person’s conviction shall specify the total

       number of days, if any, that the person was confined for any reason

       arising out of the offense for which the person was convicted and

       sentenced prior to delivery to the jailer, administrator, or keeper


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       under this section.    The record shall be used to determine any

       reduction of sentence under division (C) of this section.

       (C)(1) If the person is sentenced to a jail for a felony or a

       misdemeanor, the jailer in charge of a jail shall reduce the sentence

       of a person delivered into the jailer’s custody pursuant to division

       (A) of this section by the total number of days the person was

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

       person was convicted and sentenced, including confinement in lieu

       of bail while awaiting trial, confinement for examination to

       determine the person’s competence to stand trial or to determine

       sanity, confinement while awaiting transportation to the place where

       the person is to serve the sentence, and confinement in a juvenile

       facility.

See State v. Ward, 16 Ohio App.3d 276 (12th Dist.1984), paragraph one of the

syllabus (“Pursuant to R.C. 2949.08, a trial court has the duty to certify to a jailer

the number of days a defendant was confined while awaiting bail and the jailer

must give the defendant credit for that time in determining the date of release from

confinement following conviction.”). See also State v. Smiley, 8th Dist. Cuyahoga

No. 99486, 2013-Ohio-4495, ¶ 8, citing State v. Hargrove, 1st Dist. Hamilton No.

C-120321, 2013-Ohio-1860, ¶ 6. Similar to R.C. 2967.191, R.C. 2949.08 applies


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to confinement “for any reason arising out of the offense for which the person was

convicted and sentenced * * *.” R.C. 2949.08(B).

        {¶21} Here, the trial court awarded Fuller jail-time credit toward a prison

sentence that may or may not be imposed in the future, while at the same time

sentencing Fuller to a definite jail term and not awarding him jail-time credit for

that term.5 Awarding jail-time credit has its roots in the Equal Protection Clauses

of the United States and Ohio Constitutions and is now governed by statute in

Ohio. State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, ¶ 7-8; Smiley at ¶ 8,

citing R.C. 2967.191 and 2949.08. The overall objective of awarding jail-time

credit is to comply with the requirements of equal protection by reducing the total

time that offenders spend in prison or jail after sentencing by an amount equal to

the time that they were previously held. See Smiley at ¶ 7-8, citing Hargrove at ¶

6. See also Fugate at ¶ 11.

        {¶22} By imposing a definite jail term but awarding Fuller’s jail-time credit

toward a prison sentence that may or may not be imposed in the future, the trial

court failed to comply with the requirements of equal protection. The trial court

acknowledged that it “didn’t impose prison” on Fuller and referred to the 12-

month prison term following a community-control violation as a “reserve prison

term.” (May 6, 2013 Tr. at 22); (Doc. No. 46). “The purpose of the community


5
 Although we reversed the trial court’s 12-month jail sentence on Count Three, for purposes of resolution
of Fuller’s third assignment of error, we assume the imposition of a definite jail sentence.

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Case No. 7-13-06


control statute [ ] is not to sentence a defendant to a specific prison term and then

suspend or reserve that prison term, the purpose is to notify a defendant of a

specific prison term that a defendant will receive if he violates community

control,” although using the term “reserve” does not itself create an error in

sentencing. (Emphasis sic.) State v. Berry, 3d Dist. Defiance No. 4-12-04, 2012-

Ohio-4660, ¶ 25-29.

       {¶23} The 12-month prison term following a community-control violation

is not part of the trial court’s sentence. “Following a community control violation,

the trial court conducts a second sentencing hearing. At this second hearing, the

court sentences the offender anew and must comply with the relevant sentencing

statutes.” State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-7110, ¶ 17, citing State v.

Martin, 8th Dist. Cuyahoga No. 82140, 2003-Ohio-3381, ¶ 35. Therefore, the trial

court awarded jail-time credit for a prison term to which it did not sentence Fuller,

while at the same time imposing a definite jail term with no jail-time credit. If

Fuller does not violate community control, the total time that he spends in jail or

prison after sentencing will not be reduced by an amount equal to the time that he

was previously confined, so the trial court’s decision concerning jail-time credit

does not comply with the requirements of equal protection. See Fugate at ¶ 11.

For these reasons, the trial court erred.




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       {¶24} For the reasons above, we hold that when a trial court sentences a

defendant to a definite jail term as part of community control on one felony count

and to nonresidential community-control sanctions on a second felony count, the

trial court must award earned jail-time credit on the definite jail term.

       {¶25} In its brief, the State argues only that Fuller was sentenced to jail in

this case, and R.C. 2967.191 applies to “prison terms,” not jail terms. However,

the State does not address R.C. 2949.08, nor does it address the equal-protection

implications of the trial court’s decision.

       {¶26} Therefore, we sustain Fuller’s third assignment of error, reverse the

trial court’s decision concerning jail-time credit, and remand for resentencing.

                            Assignment of Error No. II

       The trial court erred by imposing the maximum sentence for a
       felony of the fifth degree.

       {¶27} In his second assignment of error, Fuller argues that the trial court

erred by not considering the purposes and principles for felony sentencing set forth

in R.C. 2929.11 and the factors relating to the seriousness of the offense and the

recidivism of the offender under R.C. 2929.12 when the trial court sentenced him

to a 12-month jail term.

       {¶28} In light of our decision to reverse the judgment of the trial court and

remand for resentencing, Fuller’s second assignment of error has been rendered

moot, and we decline to address it. App.R. 12(A)(1)(c).

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       {¶29} Having found error prejudicial to the appellant herein in the

particulars assigned and argued, we reverse the judgment of the trial court and

remand for further proceedings consistent with this opinion.

                                                          Judgment Reversed and
                                                               Cause Remanded

WILLAMOWSKI and SHAW, J.J., concur.

/jlr




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