[Cite as State v. Cook, 2020-Ohio-3435.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. Nos.    29648
                                                                   29649
        Appellee                                                   29650

        v.

ANTOINE D. COOK                                       APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
        Appellant                                     COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
                                                      CASE Nos. CR 17 10 3519
                                                                 CR 18 06 1799
                                                                 CR 18 06 1913

                                 DECISION AND JOURNAL ENTRY

Dated: June 24, 2020



        HENSAL, Judge.

        {¶1}     Antoine Cook appeals three journal entries of the Summit County Court of

Common Pleas that denied his motions for jail time credit. For the following reasons, this Court

affirms.

                                                 I.

        {¶2}     In 2017, Mr. Cook pleaded guilty to aggravated possession of drugs and the trial

court sentenced him to one year of community control. In 2018, Mr. Cook left the community-

based correctional facility programming that he was required to attend as part of community

control and a warrant was issued for his arrest. The Grand Jury also issued two additional

indictments for Mr. Cook, one for escape and the other for aggravated burglary, felonious assault,

aggravated drug possession, marijuana possession, and obstruction of official business.
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       {¶3}    Mr. Cook pleaded guilty to the new offenses and to violating the terms and

conditions of community control. The trial court sentenced him to two years imprisonment in both

new cases, which it ordered to run consecutively. It sentenced him to 12 months in prison for

violating community control, which it ordered to run concurrently with the other sentences. For

his original offense, the court ordered Mr. Cook to receive 393 days of jail-time credit. For the

newer cases, it ordered him to receive 177 days of jail-time credit.

       {¶4}    Mr. Cook did not appeal his sentences, but subsequently filed a motion for jail time

credit in all three cases, arguing that he should be entitled to 393 days of credit in each case. The

trial court denied his motions and Mr. Cook did not appeal. He later moved for a delayed appeal

in the two newer cases, but this Court denied his motions. Mr. Cook then filed another motion for

jail time credit in each case. The trial court again denied his motions, determining that it had

correctly awarded jail time in each case. Mr. Cook has appealed the denial of his motions,

assigning as error that he should receive 393 days of jail-time credit in all three of his cases.

                                                  II.

                                    ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT’S
       MOTION FOR ADDITIONAL JAIL TIME CREDIT, HAVING IMPOSED
       CONCURRENT SENTENCES IN CASE NO. CR-2017-10-3519. THE COURT
       FAILED TO SUBSUME THE DEFENDANT’S SHORTER JAIL TIME CREDIT
       OF 177 DAYS IN [CASE NO.(S) CR-2018-06-1799 AND CR-2018-06-1913]
       INTO THE LARGER AMOUNT GRANTED IN HIS CONCURRENT
       SENTENCE IN CR-2017-10-3519 [393 DAYS JAIL TIME CREDIT] IN
       VIOLATION OF HIS RIGHT TO EQUAL PROTECTION AS GUARANTEED
       BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES
       CONSTITUTION AND ARTICLE 1, SECTION 16 OF THE OHIO
       CONSTITUTION.

       {¶5}    Mr. Cook argues that, because the trial court ordered his sentence for violating

community control to run concurrently with his sentences in the two newer cases, it was required
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to award him the same amount of jail time credit in all three cases. Revised Code Section

2929.19(B)(2)(g)(i) provides that, at sentencing, if a court determines that a prison term is

necessary or required, it shall

       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 * * *.

R.C. 2929.19(B)(2)(g)(i). The statute also provides that a sentencing court retains jurisdiction “to

correct any error [in the calculation] not previously raised at sentencing[.]”                  R.C.

2929.19(B)(2)(g)(iii). “[An] offender may, at any time after sentencing, file a motion in the

sentencing court to correct any error made in making a determination under division (B)(2)(g)(i)

of this section, and the court may in its discretion grant or deny that motion.” Id. We review the

denial of a motion to correct jail-time credit for an abuse of discretion. State v. George, 9th Dist.

Medina No. 19CA0037-M, 2019-Ohio-3823, ¶ 8. An abuse of discretion occurs when the court’s

decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983).

       {¶6}    According to Mr. Cook, there is precedent that, if an offender is sentenced to

concurrent sentences, the amount of jail-time credit must be the same for each sentence. He cites

to State v. Anderson, 191 Ohio App.3d 129, 2010-Ohio-4525 (2d Dist.), State v. Cole, 2d Dist.

Montgomery No. 23327, 2009-Ohio-4580, and State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-

856, in support of his argument.

       {¶7}    In Fugate, a defendant who was on community control committed burglary and

theft. At a revocation hearing, he admitted that the new offenses violated his community control.

The trial court sentenced him to 12 months in jail for the violation and noted a jail-time credit of
                                                  4


213 days. The court subsequently sentenced him to two years in prison for the new offenses, which

it ordered to run concurrent to the 12-month sentence. It did not award him any jail-time credit

for the new offenses. The Ohio Supreme Court explained, however, that, “when a defendant is

sentenced to concurrent terms, [jail-time] credit must be applied against all terms, because the

sentences are served simultaneously. If an offender is sentenced to concurrent terms, applying

credit to one term only would, in effect, negate the credit for time that the offender has been held.”

Fugate at ¶ 22. It remanded the case to the trial court for an adjustment of the sentence. Id. at ¶

23.

       {¶8}    In Cole, a defendant who was on community control was charged with two counts

of felonious assault. He pleaded guilty to one of the new counts and admitted that it constituted a

violation of his community control. The trial court imposed a one-year sentence for both the

violation and the new offense, which it ordered to run concurrently. It awarded him 143 days of

jail-time credit toward the violation of community control sentence and 83 days of credit toward

the new offense. On appeal, the Second District held that, under Fugate, because the sentences

were concurrent, the defendant was entitled to 143 days of jail-time credit in both cases. Cole at

¶ 13-14.

       {¶9}    In Anderson, the defendant was found guilty of possession of drugs in one case and

failure to comply with the order of a police officer in another case. He was sentenced for both

cases on the same day. In the drug case, the trial court sentenced him to a total of seven years. In

the failure-to-comply case it sentenced him to one year. It also ordered the defendant to serve the

sentences concurrently. Regarding jail-time credit, the court only awarded the defendant credit

for the failure-to-comply case because his indictment in the drug case came after the arrest. The

Second District reversed, concluding that, under Fugate, because the trial court imposed
                                                   5


concurrent sentences, the defendant was entitled to the same jail-time credit in both cases.

Anderson, 2010-Ohio-4525, at ¶ 21.

        {¶10} We believe that Cole and Anderson oversimplified Fugate. The Ohio Supreme

Court’s concern in Fugate was that an offender receive the full jail-time credit due for his offenses.

Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, at ¶ 21-22. One of the conditions for jail-time credit

is that the prior confinement must have “ar[ose] out of the offense for which the offender is being

sentenced.” R.C. 2929.19(B)(2)(g)(i); R.C. 2967.191(A). If one of the sentences that a trial court

imposes is for a community control violation, like in this case, it is possible that the jail-time credit

for that offense will include time that the defendant was confined before originally being sentenced

to community control. A defendant is not entitled to jail-time credit for time spent in confinement

that was served before a later offense was committed, regardless of whether the sentences for the

community control violation and the later offense are concurrent. That is why the Ohio Supreme

Court in Fugate remanded the cause to the trial court “for an adjustment in [the] sentence” instead

of simply modifying the sentence for the burglary and theft offenses to include 213 days of jail-

time credit. Fugate at ¶ 23.

        {¶11} Although not explicitly overruling Cole and Anderson, the Second District has

recently recognized that a defendant may not be entitled to the same amount of jail-time credit for

concurrent sentences if one of the sentences is for a community control violation and some of the

credit in that case is unrelated to the new offenses. State v. Heys, 2d Dist. Montgomery No. 28374,

2020-Ohio-692. In Heys, the defendant was sentenced in 2017 to community control by a Logan

County judge. In 2019, he was indicted in Montgomery County for multiple offenses. Because

of the new offenses, a Logan County judge found that the defendant had violated community

control. The judge sentenced the defendant to 12 months in jail and gave him 183 days of jail-
                                                   6


time credit. After the defendant pleaded guilty to one of the new offenses, a Montgomery County

judge sentenced him to six months in jail, which it ordered to be served concurrently with the

Logan County case. The judge also gave him 183 days of jail-time credit, like in the Logan County

case. The State appealed, arguing that the defendant was only entitled to 3 days of credit in the

Montgomery County case. The Second District recognized that a defendant’s jail-time credit

“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.” Id. at ¶ 17, quoting State v. Ways, 2d Dist. Montgomery No.

25214, 2013-Ohio-293, ¶ 20. After reviewing the record for the actual amount of time the

defendant had been confined related to the new offense, the Second District determined that he

was entitled to 17 days of jail-time credit for that offense. Id. at ¶ 20.

       {¶12} In this case, the trial court awarded Mr. Cook 393 days of jail-time credit in his

original aggravated-possession-of-drugs case. It awarded him only 177 days of jail-time credit in

his escape case and 177 days in his aggravated-burglary-and-related-offenses case. Upon review

of the record, it is not clear how the trial court determined those numbers. The record does not

contain a transcript of the combined sentencing hearing, which is where the parties may have

discussed those calculations. Because Mr. Cook has not directed this Court to anything in the

record that establishes that he spent 393 days in confinement “arising out of” the offenses he

committed in 2018, we conclude that he has not demonstrated that the trial court exercised

improper discretion when it denied his motions for jail-time credit. R.C. 2929.19(B)(2)(g)(i). Mr.

Cook’s assignment of error is overruled.
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                                                III.

       {¶13} Mr. Cook’s assignment of error is overruled. The judgments of the Summit County

Court of Common Pleas are affirmed.

                                                                              Judgments affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT




CALLAHAN, P. J.
CARR, J.
CONCUR.
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APPEARANCES:

ANTOINE D. COOK, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.
