 [Cite as State v. Spears, 2014-Ohio-146.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

 STATE OF OHIO

         Plaintiff-Appellee

 v.

 RAVON M. SPEARS

         Defendant-Appellant



 Appellate Case No.        25645

 Trial Court Case No. 2012-CR-3529


 (Criminal Appeal from
 (Common Pleas Court)
                                              ...........

                                              OPINION

                                Rendered on the 17th day of January, 2014.

                                              ...........

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting
Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

CHARLES L. GROVE, Atty. Reg. No. 0029144, Assistant Public Defender, Law Office of the Public
Defender, 117 South Main Street, Suite 400, Dayton, Ohio 45422
      Attorney for Defendant-Appellant
                                                                                            2


                                            .............

WELBAUM, J.

           {¶ 1}   Defendant-Appellant, Ravon Spears, appeals from his conviction and sentence

 on a charge of Burglary, a felony of the second degree. Following a guilty plea to the charge, the

 trial court imposed a three-year term of imprisonment and credited Spears for 29 days of jail time

 credit.

           {¶ 2}   Spears contends that the trial court erred in failing to credit him with an

 additional 28 days of jail time credit, during which he served time for an unrelated misdemeanor

 offense. We conclude that the trial court did not err in failing to allow the requested jail time

 credit. Jail time credit is not permitted under R.C. 2967.191 where the defendant was serving

 time for a separate offense.



                                 I. Facts and Course of Proceedings

           {¶ 3}   Spears was arrested on November 28, 2012, for trespass in an occupied structure

 (Burglary) and Arson. A complaint was filed in Dayton Municipal Court the following day,

 charging him with these offenses. Spears was then indicted for Burglary and Arson by the

 Montgomery County Grand Jury on December 21, 2012, and the case was transferred to the

 Montgomery County Common Pleas Court.

           {¶ 4}   After initially pleading not guilty, Spears pled guilty to Burglary on January 9,

 2013, and the Arson charge was dismissed. At the sentencing hearing, the trial court sentenced

 Spears to three years in prison, and credited him with 29 days of jail time credit. Spears asked

 the court to also award jail time credit for 28 days that he had served between December 12, 2012
                                                                                            3


and January 9, 2013 on an unrelated misdemeanor charge in Dayton Municipal Court No.

2012-CRB-9636. This sentence was served during the time that Spears was being held in jail on

$25,000 bond for the Burglary and Arson charges.

       {¶ 5}      Although the trial court said that it agreed with Spears’ position that he should

receive the additional credit, the court stated that it was bound by prior case law, which indicated

that no credit should be allowed for the time served on the Municipal Court charge. The trial

court filed a termination entry on January 24, 2013, reflecting the three-year sentence and the 29

days of jail time credit. Spears appeals from his conviction and sentence.



                    II. Did the Trial Court Err in Awarding Jail-Time Credit?

       {¶ 6}     Spears’ sole assignment of error is as follows:

               The Defendant Was Not Awarded Sufficient Jail Time Credit as a Matter

       of Law.

       {¶ 7}     Under this assignment of error, Spears contends that R.C. 2967.191 is

unambiguous and requires that he be given credit against his felony sentence for time that he was

held “for any reason” in the felony case – irrespective of an unrelated misdemeanor case on

which he happened to be sentenced during the time that he was in jail awaiting trial on the felony

charge. According to Spears, defendants who are given a misdemeanor sentence before being

transported for a felony prison term, or who are brought back while in prison and are sentenced

for a misdemeanor, are entitled to serve concurrent time for the misdemeanor pursuant to R.C.

2929.41(A). Spears alleges that this difference in treatment is unfairly inconsistent with regard

to similarly situated people.
                                                                                           4


       {¶ 8}     “Where, for whatever reason, a defendant remains in jail prior to his trial, he

must be given credit on the sentence ultimately imposed for all periods of actual confinement on

that charge.”        (Emphasis added). State v. Angi, 2d Dist. Greene No. 2011 CA 72,

2012-Ohio-3840, ¶ 7, citing State v. Coyle, 2d Dist. Montgomery No. 23450, 2010-Ohio-2130, ¶

5.   (Other citations omitted.)      In Angi, we noted that “[t]his requirement enforces the

Fourteenth Amendment's right to equal protection of the law.” Id., citing Coyle at ¶ 5 (Other

citation omitted.)

       {¶ 9}     We further observed in Angi that “R.C. 2967.191 implements the equal

protection right with respect to credit for prior incarceration * * *.” Id. at ¶ 8. In this regard,

R.C. 2967.191 provides, in pertinent part, that:

                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,

       confinement while awaiting transportation to the place where the prisoner is to

       serve the prisoner's prison term, as determined by the sentencing court under

       division (B)(2)(g)(i) of section 2929.19 of the Revised Code, and confinement in a

       juvenile facility.

       {¶ 10} On numerous prior occasions, we have addressed and rejected the contentions
                                                                                           5


being made by Spears.        Recently, in State v. Dewey, 2d Dist. Montgomery No. 25515,

2013-Ohio-2118, we stated that:

                We have previously addressed whether a defendant who is held in jail in

       lieu of bond on a new and separate charge is entitled to jail time credit, even if he

       was also being held in jail on a totally unrelated matter during that same time. See,

       e.g., Angi, 2d Dist. Greene No.2011 CA 72, 2012-Ohio-3840; [State v.] Flemings,

       [2d Dist. Montgomery No. 24615, 2011-Ohio-4286,] supra; State v. Rios, 2d Dist.

       Clark No. 10 CA 59, 2011-Ohio-4720. We have consistently held that jail time

       credit is not appropriate where the defendant was serving time for a separate

       offense. Other courts have also held that a defendant cannot receive jail time

       credit when he serves time for unrelated offenses while in jail awaiting trial on

       separate charges. See, e.g., State v. Logan, 71 Ohio App.3d 292, 300, 593 N.E.2d

       395 (10th Dist.1991); State v. Harper, 6th Dist. Sandusky No. S-10-005,

       2010-Ohio-6518, ¶ 13; State v. Marini, 5th Dist. Tuscarawas No. 09-CA-6,

       2009-Ohio-4633, ¶ 22-23. Dewey at ¶ 13.

       {¶ 11}    After Dewey was decided, we have continued to maintain this position. See

State v. Ayers, 2d Dist. No. 25489, 2013-Ohio-4234, ¶ 13-14, and State v. Carter, 2d Dist. No.

25640, 2013-Ohio-5163, ¶ 6-7.

       {¶ 12}    In arguing that we should change our established interpretation of R.C.

2967.191, Spears relies on R.C. 2929.41(A), which requires that misdemeanor sentences are to be

served concurrently with other sentences. In this regard, R.C. 2929.41(A) states that:

                Except as provided in division (B) of this section, division (C) of section
                                                                                          6


       2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a prison

       term, jail term, or sentence of imprisonment shall be served concurrently with any

       other prison term, jail term, or sentence of imprisonment imposed by a court of

       this state, another state, or the United States. Except as provided in division

       (B)(3) of this section, a jail term or sentence of imprisonment for misdemeanor

       shall be served concurrently with a prison term or sentence of imprisonment for

       felony served in a state or federal correctional institution.

       {¶ 13}    R.C. 2929.41(A) does not mandate a different result in the circumstances that

are before us. As an initial matter, the first sentence of this subsection requires (with certain

exceptions not applicable here), that prison terms imposed by Ohio courts will be served

concurrently with each other and with sentences imposed by other states or federal courts. The

second sentence of the subsection (again with exceptions not applicable here), requires that jail

terms for misdemeanors be served concurrently with prison terms for felonies served in a state or

federal prison. However, at the time Spears was sentenced to a jail term for the misdemeanor,

he was not yet serving a prison term for the felony. He had yet to be convicted and sentenced.

       {¶ 14} Furthermore, the existence of R.C. 2929.41(A) in its current form does not

require a change in the position we have expressed in prior cases. Both R.C. 2967.191 and R.C.

2929.41 have been amended on numerous occasions. Although the position we have taken has

been in existence, and has been consistent among Ohio courts for many years, the legislature has

not altered either R.C. 2967.191 and R.C. 2929.41 in a manner that indicates an intent to adopt

the position taken by Spears. “A reenactment of legislation, without modification after judicial

interpretation, is a further indication of implied legislative approval of such interpretation.”
                                                                                         7


Seeley v. Expert, Inc., 26 Ohio St.2d 61, 73, 269 N.E.2d 121(1971). If the legislature chooses to

alter the relevant statutes, then our position on the matter would change accordingly. However,

that has not occurred to date.

       {¶ 15}    Accordingly, Spears’ sole assignment of error is without merit and is overruled.



                                        III. Conclusion

       {¶ 16} Spears’ sole assignment of error having been overruled, the judgment of the trial

court is affirmed.




                                        .............

FROELICH, P.J., and DONOVAN, J., concur.




Copies mailed to:

Mathias H. Heck
Michele D. Phipps
Charles L. Grove
Hon. Barbara P. Gorman
