[Cite as State v. El-Amin, 2018-Ohio-560.]


                                IN THE COURT OF APPEALS OF OHIO

                                     TENTH APPELLATE DISTRICT

State of Ohio,                                         :
                                                                                 No. 17AP-439
                   Plaintiff-Appellee,                 :                      (C.P.C. No. 02CR-2710)
                                                                                  No. 17AP-440
v.                                                     :                      (C.P.C. No. 02CR-289)
                                                                                   No. 17AP-441
Abdul El-Amin,                                         :                      (C.P.C. No. 04CR-5247)

                   Defendant-Appellant.                :                  (REGULAR CALENDAR)



                                              D E C I S I O N

                                      Rendered on February 13, 2018


                   On brief: Ron O'Brien, Prosecuting Attorney, and Laura R.
                   Swisher, for appellee.

                   On brief: Abdul El-Amin, pro se.

                    APPEALS from the Franklin County Court of Common Pleas

BRUNNER, J.
           {¶ 1} Defendant-appellant, Abdul El-Amin, appeals a decision entered by the
Franklin County Court of Common Pleas on May 23, 2017 that denied his request for
additional jail-time credit.1 Because we agree that El-Amin has already received the credit
to which he is entitled, we affirm.
I. FACTS AND PROCEDURAL HISTORY
           {¶ 2} A Franklin County Grand Jury indicted El-Amin in Franklin C.P. No. 02CR-
289 for possession of cocaine on January 22, 2002. (Jan. 22, 2002 Indictment No. 02CR-
289.) On February 4, 2002, he received a recognizance bond. (Feb. 4, 2002 Recognizance
Bond No. 02CR-289.)
           {¶ 3} Approximately three and one-half months later, El-Amin was indicted for
aggravated murder. (May 15, 2002 Indictment No. 02AP-2710.) While jailed and awaiting

1   Also known as "custody credit." State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, ¶ 1, fn. 1.
Nos. 17AP-439, 17AP-440, & 17AP-441                                                        2


trial, on August 6, 2004, El-Amin was indicted for assault and abduction of a jail deputy.
(Aug. 6, 2004 Indictment No. 04CR-5247; Jan. 25, 2005 Tr. at 12, filed Apr. 7, 2005 in case
No. 02CR-2710.)
          {¶ 4} Following motions practice and investigation of the case, on January 25,
2005, El-Amin pled guilty to charges in all three cases and was sentenced. (Jan. 26, 2005
Plea Form No. 02CR-289; Jan. 26, 2005 Plea Form No. 02CR-2710; Jan. 26, 2005 Plea
Form No. 04CR-5247.) Specifically, El-Amin pled guilty to one fifth-degree felony count of
cocaine possession and a lesser-included offense of voluntary manslaughter with a three-
year gun specification in case Nos. 02CR-289 and 02CR-2710, respectively. (Jan. 26, 2005
Plea Form No. 02CR-289 at 1; Jan. 26, 2005 Plea Form No. 02CR-2710 at 1.) He entered
an Alford2 plea to the charges of assault and abduction while he was jailed and awaiting
trial in case No. 04CR-5247. (Jan. 26, 2005 Plea Form No. 04CR-5247 at 1.) The three
plea forms he signed contained jointly recommended sentences that together would result
in a 20-year sentence of incarceration at the Ohio Department of Rehabilitation and
Correction. The total recommended sentence was comprised of these consecutively served
individual sentences: six months for the cocaine possession conviction in case No. 02CR-
289, 13 years for voluntary manslaughter with gun specification in case No. 02CR-2710,
and six and one-half years for assault and abduction in case No. 04CR-5247. (Jan. 26, 2005
Plea Form No. 02CR-289 at 1; Jan. 26, 2005 Plea Form No. 02CR-2710 at 1; Jan. 26, 2005
Plea Form No. 04CR-5247 at 1.) After El-Amin pled guilty, the trial court held a sentencing
hearing and imposed the consecutive sentences as the parties had jointly recommended.
(Jan. 26, 2005 Jgmt. Entry No. 02CR-289 at 1-2; Jan. 26, 2005 Jgmt. Entry No. 02CR-
2710 at 1-2; Jan. 26, 2005 Jgmt. Entry No. 04CR-5247 at 2; Jan. 25, 2005 No. 02CR-289
Tr. at 18.)
          {¶ 5} During the sentencing hearing, the prosecution offered to the trial court that
El-Amin should be credited 995 days in case No. 02CR-2710 for voluntary manslaughter
with a gun, 10 days in No. 02CR-289 for cocaine possession, and zero days in No. 04CR-
5247 for the jail assault and abduction. (Jan. 25, 2005 No. 02CR-289 Tr. at 14.) The
defense neither objected to nor offered an alternative proposal to the State's jail-time credit
computation and statement at any point in the trial court's proceedings. The trial court


2   North Carolina v. Alford, 400 U.S. 25 (1970).
Nos. 17AP-439, 17AP-440, & 17AP-441                                                      3


credited jail time according to the State's computation and allocated it among El-Amin's
three sentences as proposed by the State. Id. at 18; Jan. 26, 2005 Jgmt. Entry No. 02CR-
289 at 2; Jan. 26, 2005 Jgmt. Entry No. 02CR-2710 at 2; Jan. 26, 2005 Jgmt. Entry No.
04CR-5247 at 2.
       {¶ 6} Approximately 12 years later, on May 3, 2017, El-Amin filed a motion
requesting an additional 985 days of jail-time credit in his cocaine possession case on the
theory that he had been jailed awaiting trial on that case for the same amount of time that
he had been jailed for the voluntary manslaughter case. The State opposed El-Amin's
motion, pointing out that El-Amin's total prison sentence is comprised of consecutive
sentencing for each of his three cases, and if he were given the same jail-time credit in two
of the cases, he would be gaining credit to which he was not entitled—double credit for a
single period spent in jail on multiple cases. (May 16, 2017 Memo. in Opp. at 2-3.) The
State also argued El-Amin's motion was foreclosed by res judicata and not reviewable
because of a mathematical error exception or the operation of a new version of R.C.
2929.19. (May 16, 2017 Memo. in Opp. at 3-9.) On May 23, the trial court declined to
address the res judicata argument and denied El-Amin's motion on the merits stating "[t]he
Court has reviewed Defendant's Motion and the case file, the Court finds the recounting of
the facts are correctly presented by the State of Ohio." (May 23, 2017 Decision & Entry at
1.)
       {¶ 7} El-Amin now appeals.
II. ASSIGNMENT OF ERROR
       {¶ 8} El-Amin asserts a single assignment of error:
              The Court committed error in its calculation of defendant's jail
              time credit for two cases whereby he was held in confinement
              in lieu of bail awaiting trial, however, defendant was not given
              the full jail time credit of 995 days and only given ten (10) days
              of jail time credit, thus, creating disparity within the jail time
              credit awarded to the defendant.

III. DISCUSSION
       {¶ 9} El-Amin argues he was jailed for both the cocaine possession and voluntary
manslaughter (case Nos. 02CR-289 and 02CR-2710) at the same time for a period of 995
days. (El-Amin Brief at iv-1.) He was given the full 995 days on case No. 02CR-2710 for
voluntary manslaughter and 10 days on No. 02CR-289 for cocaine possession. (Jan. 25,
Nos. 17AP-439, 17AP-440, & 17AP-441                                                             4


2005 No. 02CR-289 Tr. at 18; Jan. 26, 2005 Jgmt. Entry No. 02CR-289 at 2; Jan. 26, 2005
Jgmt. Entry No. 02CR-2710 at 2.) He argues that he is owed an additional 985 days in the
cocaine possession case No. 02CR-289. (El-Amin Brief at 6.)
       {¶ 10} Both the United States Supreme Court and the Supreme Court of Ohio have
recognized that the Equal Protection Clause does not permit disparate treatment of
defendants based solely on their economic status. State v. Fugate, 117 Ohio St.3d 261,
2008-Ohio-856, ¶ 7, citing Tate v. Short, 401 U.S. 395 (1971); Williams v. Illinois, 399 U.S.
235 (1970); Griffin v. Illinois, 351 U.S. 12 (1956). Among other consequences, this principle
means the Equal Protection Clause requires that "all time spent in any jail prior to trial and
commitment by [a prisoner who is] unable to make bail because of indigency must be
credited to his sentence." (Emphasis sic.) Fugate at ¶ 7, citing Workman v. Cardwell, 338
F.Supp. 893, 901 (N.D.Ohio 1972); White v. Gilligan, 351 F.Supp. 1012 (S.D.Ohio 1972); see
also R.C. 2967.191.
       {¶ 11} Thus, when a prisoner is sentenced to concurrent terms, having spent a
period of time in jail awaiting trial, in order for his time in jail to effectively reduce his total
sentence as required by the Equal Protection Clause and R.C. 2967.191, such jail-time credit
must be deducted from each of his sentences. Ohio Adm.Code 5120-2-04(F). Otherwise,
jail-time credit might not affect the overall length of an offender's term of imprisonment.
For example, if a person sentenced to two concurrent terms of five years received 300 days
of credit but that credit were only applied to one sentence, the offender would still serve the
entire five years. For such an offender to receive the benefit of the 300 days, the 300 days
would have to be credited against both concurrent five-year sentences. As the Supreme
Court of Ohio recognized:
               [W]hen a defendant is sentenced to concurrent terms, 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. To deny such credit would constitute a violation of the
               Equal Protection Clause.

Fugate at ¶ 22.
       {¶ 12} Conversely, when a prisoner who has been jailed while awaiting trial is
sentenced to consecutive terms, credit for jail time will properly reduce his total sentence
Nos. 17AP-439, 17AP-440, & 17AP-441                                                        5


when the credit is applied just once to the total aggregate sentence. Ohio Adm.Code 5120-
2 -04(G). As the Supreme Court put it:
              When a defendant is sentenced to consecutive terms, the terms
              of imprisonment are served one after another. Jail-time credit
              applied to one prison term gives full credit that is due, because
              the credit reduces the entire length of the prison sentence.

Fugate at ¶ 22. For example, if a person sentenced to two consecutive terms of five years
received 300 days of credit, that credit would be fully applied if applied once to the ten-year
aggregate sentence. If applied to each of the five-year sentences (which is the result that
El-Amin argues for), the consequence would be a 600-day reduction of the total which
would, in effect, give the person double credit for time spent in jail awaiting trial. Neither
the laws of Ohio nor the Constitution requires what is tantamount to a windfall.
       {¶ 13} In this case, El-Amin initially spent some period of time in jail on the cocaine
possession case, No. 02CR-289, before he was released on a recognizance bond. (Jan. 22,
2002 Indictment No. 02CR-289; Feb. 4, 2002 Recognizance Bond No. 02CR-289.) The
trial court found this period of time was ten days and El-Amin has not objected to this
determination. (Jan. 25, 2005 No. 02CR-289 Tr. at 18.) El-Amin also spent a significant
period of time in jail between when he was arrested following the shooting at issue in case
No. 02CR-2710 and when he was transferred to the Ohio Department of Rehabilitation and
Correction following sentencing on January 25, 2005. Id.; May 15, 2002 Indictment
No. 02CR-2710; Jan. 26, 2005 Jgmt. Entry No. 02CR-2710. The trial court found this
period of time was 995 days; El-Amin has not objected to this finding. (Jan. 25, 2005 No.
02CR-289 Tr. at 18.) During most of the 995-day period for the shooting case, El-Amin's
bond also was revoked in his cocaine possession case. See May 14, 2002 Capias Served No.
02CR-289 (reflecting service on May 10 in the Franklin County Jail); May 9, 2002 Bond
Forfeiture Order No. 02CR-289. El-Amin is correct that for most of the 995 days he was
held in jail on both of these two cases.
       {¶ 14} If the parties had recommended and the trial court sentenced El-Amin to
serve these two sentences concurrently, the trial court would have been required to give
credit in both cases.      Because the sentences in El-Amin's cases were sentenced
consecutively, the trial court was not required to apply the 995 days more than once to the
aggregate sentence. The trial court effectively applied the necessary credit to reduce the
Nos. 17AP-439, 17AP-440, & 17AP-441                                                       6


entire sentence by the full measure of time El-Amin spent in jail awaiting disposition of the
cases. Equal Protection Clause requires no more or less.
       {¶ 15} We overrule El-Amin's sole assignment of error.
IV. CONCLUSION
       {¶ 16} Because El-Amin is serving consecutive rather than concurrent sentences,
credit for the time he spent in jail was properly applied just once to his aggregate sentence.
We affirm the judgment of the Franklin County Court of Common Pleas.
                                                                        Judgment affirmed.
                            TYACK and HORTON, JJ., concur.
