[Cite as State v. Norman, 2013-Ohio-1866.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                    JUDGES:
                                                 Hon. William B. Hoffman, P. J.
        Plaintiff-Appellant                      Hon. John W. Wise, J.
                                                 Hon. Patricia A. Delaney, J.
-vs-

RYAN NORMAN                                      Case No. CT2012-0061

        Defendant-Appellee                       OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Court of Common
                                              Pleas, Case No. CR2012-0169


JUDGMENT:                                     Reversed and Remanded



DATE OF JUDGMENT ENTRY:                       May 5, 2013



APPEARANCES:

For Plaintiff-Appellant                       For Defendant-Appellee

ROBERT L. SMITH                               JEFFERSON MASSEY
ASSISTANT PROSECUTOR                          30 South Fourth Street
27 North Fifth Street                         Zanesville, Ohio 43701
Zanesville, Ohio 43701
 Muskingum County, Case No. CT2012-0061                                                   2

 Wise, J.

        {¶1}    Appellant State of Ohio appeals the jail time credit determination by the

Muskingum County Court of Common Pleas.

        {¶2}    Appellee is Ryan A. Norman.

                         STATEMENT OF THE FACTS AND CASE

        {¶3}    On August 1, 2012, Appellee Ryan Norman was indicted on one count of

Theft, a third degree felony, in violation of R.C. 2913.02(A)(1).

        {¶4}    On August 8, 2012, Appellee entered a plea of “not guilty” at his

arraignment.

        {¶5}    At this time, Appellee was incarcerated on unrelated misdemeanor

charges. His sentence on the misdemeanor charges was five hundred and forty (540)

days.

        {¶6}    No bond was set in the felony case because Appellee was incarcerated.

        {¶7}    On October 9, 2012, Appellee changed his plea to guilty on the Theft

charge, which had been amended to a fourth-degree felony. The trial court ordered a

presentence investigation and set a sentencing date of November 13, 2012.

        {¶8}    On November 8, 2012, counsel for Appellee filed a Motion for Full

Incarceration Credit, requesting the trial court grant credit for time served beginning from

the time Appellee was served with the indictment.

        {¶9}    On November 13, 2012, the trial court sentenced Appellee to a prison

term of twelve (12) months. The trial court gave Appellee 103 days of jail time credit.

        {¶10}   Appellant State of Ohio now appeals, setting forth the following

assignment of error:
 Muskingum County, Case No. CT2012-0061                                                    3


                                ASSIGNMENT OF ERROR

      {¶11}    “I. THE TRIAL COURT ERRED COMPUTING JAIL TIME CREDIT WHEN

IT GAVE DEFENDANT/APPELLEE CREDIT FOR 103 DAYS.”

                                              I.

      {¶12}    In its sole Assignment of Error, the State of Ohio argues that the trial court

erred in computing Appellee’s jail time credit. We agree.

      {¶13}    R.C. §2967.191 mandates a reduction of a prison term for related days of

confinement:

      {¶14}    The department of rehabilitation and correction shall reduce the stated

prison term of a prisoner or, if the prisoner is serving a term for which there is parole

eligibility, the minimum and maximum term or the parole eligibility date of the 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, confinement for examination to determine the prisoner's

competence to stand trial or sanity, and confinement while awaiting transportation to the

place where the prisoner is to serve the prisoner's prison term. (Emphasis added.)

      {¶15}    The statute essentially codifies the Equal Protection principle that

defendants shall not be subjected to disparate treatment based on economic status; that

is, for instance, defendants unable to make bail while awaiting trial must be credited for

the time they are confined. See State v. Mason, 7th Dist. No. 10 CO 20, 2011-Ohio-3167,

citing State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856.

      {¶16}    As the statute indicates, “a defendant is not entitled to jail-time credit for

any period of incarceration arising from facts that are separate or distinguishable from
 Muskingum County, Case No. CT2012-0061                                                      4

those on which the current (or previous) sentence was based.” State v. Chafin, 10th Dist.

No. 06AP–1108, 2007–Ohio–1840.

       {¶17}    In the instant case, the State calculated Appellee’s pretrial incarceration

as seven (7) days. The State claims that is the amount of time Appellee was incarcerated

after he had completed the misdemeanor sentence.

       {¶18}    Appellee claims that he is entitled to 103 days of credit for time served

from the date of service of the indictment; in this case, August 2, 2012.

       {¶19}    The trial court, in granting Appellee credit for the 103 days served in jail

from the date of service of the indictment, cited State v. Fugate, 117 Ohio St.3d 261,

2008–Ohio–856, in support of its decision.

       {¶20}    In State v. Fugate, two concurrent sentences were imposed at the same

time. One sentence, a twelve-month sentence for Receiving Stolen Property, was

imposed as the result of a community control revocation. The other sentence, a two-year

sentence for Burglary, was imposed as the result of a conviction following a jury trial. The

trial court allowed a 213 day jail-time credit against the twelve-month sentence but did not

allow any jail-time credit against the two-year sentence for Burglary. The Supreme Court

of Ohio held:

       {¶21}    “*** although concurrent and consecutive terms are to be treated

differently when jail-time credit is applied, the overall objective is the same: to comply with

the requirements of equal protection by reducing the total time that offenders spend in

prison after sentencing by an amount equal to the time that they were previously held.

       {¶22}    “Thus, in order to satisfy this objective, when concurrent prison terms are

imposed, courts do not have the discretion to select only one term from those that are run
 Muskingum County, Case No. CT2012-0061                                                    5


concurrently 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.”

       {¶23}   Upon review, we find that this is not a case where Appellee was

sentenced to concurrent prison time. Rather, Appellee completed his prison sentence

under the misdemeanor case before he was even sentenced on the felony case.

Accordingly, the sentences could not be served simultaneously.

       {¶24}   This Court has held, as well as many other 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. State v. Marini, 5th Dist. App. No. 09-CA-6, 2009-Ohio-4633.

       {¶25}   In Marini, this Court cited a number of Appellate cases in support:

       {¶26}   In State v. Smith (1992), 71 Ohio App.3d 302, the trial court rejected a

claim for credit for serving a misdemeanor sentence while the felony charge was pending,

stating “[A]ppellant was incarcerated on a prior misdemeanor criminal conviction which

was completely unrelated to the offense for which he was later sentenced by the trial

court. Because the sentence in the municipal court case did not arise out of the offense
 Muskingum County, Case No. CT2012-0061                                                        6


for which appellant was convicted in this case, appellant is not entitled to additional jail-

time credit.”

       {¶27}    Similarly, the court rejected a claim for credit in State v. Logan (1991), 71

Ohio App.3d 292, stating that, [s]ince defendant was incarcerated on a prior unrelated

conviction during the pendency of the present case, he is not entitled to jail time credit.”

       {¶28}    In State v. Goehring, 6th Dist. No. OT-03-035, 2004-Ohio-5240, the

defendant sought credit for time he spent incarcerated after conviction in Municipal Court.

The appellate court affirmed the trial court's ruling that the defendant “cannot under any

stretch of the imagination receive credit against his felony time for those days he spent

incarcerated in Municipal Court after sentence on separate and distinct matters.” Id. at ¶

5 (quoting trial court's ruling). The Sixth District concluded that defendant “was not

entitled to jail-time credit after November 4, 2002, when he was convicted and sentenced

on the unrelated charges.” Id. at ¶ 11.

       {¶29}    In State v. Brown (2001), 2nd Dist. No. 18427, the appellate court rejected

the defendant's claim for credit for a period of time during which the defendant was

serving a misdemeanor sentence imposed in Municipal Court on an unrelated case.

Because the incarceration was due to a separate misdemeanor offense, the appellate

court concluded that the trial court properly refused to give credit for that period

       {¶30}    In State v. Tuck (1996), 2nd Dist. No. 95-CA-23, the defendant admitted

that he was seeking credit for a time period when “he was also serving misdemeanor

sentences at the same time he was in pre-trial confinement awaiting trial on the felony

charges.” The appellate court rejected the claim for credit, citing the general principle that
 Muskingum County, Case No. CT2012-0061                                                   7


“a defendant is not entitled to jail time credit for any period of incarceration which arose

from charges apart from those for which the present sentence is based.”

      {¶31}    In State v. Struble, 11th Dist. No.2005-L-115, 2006-Ohio-3417, the

defendant had remained in the Lake County jail after having been sentenced to nine

months in prison in that county. When he was later convicted in Ashtabula County and

sought credit in that latter county for the post-sentence jail time completed in Lake

County, the appellate court rejected the claim, concluding that “R.C. 2967.191 is

inapplicable when the offender is imprisoned as a result of another unrelated offense.” Id.

at ¶ 11. “[T]here 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.” Id. at ¶

11 (emphasis added).

      {¶32}    As this Court state in Marini, supra:

      {¶33}    “When different courts impose sentences at separate times, the sentences

at best are only partly concurrent, and there is no requirement that courts arrange their

cases in such a way as to maximize concurrency. State v. Carter, 2nd Dist. No. 1580,

2002-Ohio-6387. It is one thing to hold, such as the Supreme Court did in State v.

Fugate, 117 Ohio St.3d 261 2008-Ohio-856 that jail time credit earned in two cases must

be applied to both cases when the sentences are imposed concurrently by the same

court. It would be quite another to hold in the present case that confinement while serving

non-concurrent jail time must be awarded as “jail time” to reduce a later-imposed felony

sentence.”

      {¶34}    Based on the foregoing, this Court finds the State of Ohio’s sole

Assignment of Error well-taken and hereby sustains same.
 Muskingum County, Case No. CT2012-0061                                           8


      {¶35}     The judgment of the trial court is reversed and remanded for further

proceedings consistent with the law and this opinion.


 By: Wise, J.

 Hoffman, P. J., and

 Delaney, J., concur.



                                             ___________________________________


                                             ___________________________________


                                             ___________________________________

                                                             JUDGES
 JWW/d 0409
Muskingum County, Case No. CT2012-0061                                        9


          IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                          :
                                       :
       Plaintiff-Appellant             :
                                       :
-vs-                                   :         JUDGMENT ENTRY
                                       :
RYAN NORMAN                            :
                                       :
       Defendant-Appellee              :         Case No. CT2012-0061




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Muskingum County, Ohio, is reversed and

remanded.

       Costs assessed to Appellee.




                                        ___________________________________


                                        ___________________________________


                                        ___________________________________

                                                         JUDGES
