 [Cite as State v. Carter, 2013-Ohio-5163.]




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

 STATE OF OHIO

         Plaintiff-Appellee

 v.

 ROGERS LAMARR CARTER

         Defendant-Appellant



 Appellate Case No.        25640

 Trial Court Case No. 2012-CR-1531
                       2012-CR-3020

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

                                              OPINION

                              Rendered on the 22nd day of November, 2013.

                                              ...........

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

J. ALLEN WILMES, Atty. Reg. No. 0012093, 7821 North Dixie Drive, Dayton, Ohio 45414
      Attorney for Defendant-Appellant

                                              .............
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WELBAUM, J.

        {¶ 1}        We are asked to decide whether the trial court erred when it calculated jail time

 credit regarding Appellant, Rogers Lamarr Carter. The trial court correctly held that Carter was

 not entitled to jail time credit for incarceration time arising from an unrelated, separate offense.

 The trial court was not required to hold a separate hearing to determine jail time credit where the

 defendant did not request a hearing, and the facts necessary to compute the credit were not

 contested and known to the court. We affirm the trial court.



                              I. FACTS AND PROCEDURAL HISTORY

        {¶ 2}    On July 17, 2012, a grand jury indicted Carter for possession of heroin and

 possession of cocaine in case number 2012-CR-1531. On November 9, 2012, he was indicted for

 retaliation in case number 2012-CR-3020. On January 31, 2013, the State dismissed the

 possession of cocaine count. Carter then entered a plea of no contest and was found guilty of the

 possession of heroin count and retaliation. The court sentenced Carter to a six month prison

 term on the cocaine count and a concurrent nine month term on the retaliation count, pursuant to

 the plea bargain.

        {¶ 3}         At the sentencing hearing, the trial court determined Carter had earned 20 days

 of jail time credit. The court based its calculations on the following facts that were derived from

 its records. Carter spent two days in jail from May 19, 2012, and three days in jail from

 September 5, 2012. The court stated that Carter served a municipal court sentence in Municipal

 Court Case 09-CR-B2042, from October 10, 2012, that would end on February 14, 2013. The

 court informed Carter that he would not be given jail time credit from October 24, 2012, to
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January 30, 2013, because during that time he had been held on the misdemeanor sentence.

Carter did not request an evidentiary hearing, object to, or contest the facts stated by the judge.

Carter objected to the trial court’s conclusion and filed appeals in both cases.



                                      II. LEGAL ANALYSIS

                              A. FIRST ASSIGNMENT OF ERROR

       {¶ 4}     Carter’s first assignment of error states:

                       THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

               FAILING TO GIVE APPELLANT PROPER JAIL TIME CREDIT.

       {¶ 5}    Where a defendant is incarcerated in jail prior to sentencing, he is entitled to have

all periods of actual incarceration on that charge credited to his ultimate sentence. R.C. 2967.191;

State v. Dewey, 2d Dist. Montgomery No. 25515, 2013-Ohio-2118, ¶ 9, citing State v. Coyle, 2d

Dist. Montgomery No. 23450, 2010-Ohio-2130, ¶ 5 (Other citation omitted). This requirement

enforces the right to equal protection provided by the Fourteenth Amendment. Dewey at ¶ 9,

citing State v. Angi, 2d Dist. Greene No. 2011 CA 72, 2012-Ohio-3840, ¶ 7. (Other citation

omitted.)

       {¶ 6}     R.C. 2967.191 implements the equal protection right to credit for prior

incarceration. Dewey at ¶ 10. Under the statute, the trial court determines how many days of

pre-sentence confinement “for any reason arising out of the offense for which the prisoner was

convicted and sentenced” shall be credited to a defendant’s sentence. We have held that “jail

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

separate offense.” State v. Ayers, 2d Dist. Montgomery No. 25489, 2013-Ohio-4234, ¶ 13, citing
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Dewey at ¶ 13.

       {¶ 7}      Carter acknowledges that he was serving time on a misdemeanor offense at the

same time he was being held in jail on these cases. The trial court did not err.

       {¶ 8}     We overrule Carter’s first assignment of error.



                            B. SECOND ASSIGNMENT OF ERROR

       {¶ 9}      Carter’s second assignment of error states:

                       APPELLANT WAS DENIED EQUAL PROTECTION SINCE HE

                 WAS TREATED DIFFERENTLY THAN OTHERS SIMILARLY

                 SITUATED.

       {¶ 10} To support his allegation of disparity, Carter cites a dissimilar case. See Haddox

v. Houser, 44 Ohio App.2d 389, 339 N.E. 2d 666 (10th Dist. 1975). Haddox was originally

incarcerated on the charge of rape, but entered a plea of no contest to the lesser included

misdemeanor offense, sexual imposition. The trial court sentenced Haddox to 60 days

incarceration, but refused to credit any of the 186 days jail time credit for the time he was held

awaiting trial on the rape.     Haddox’s right to jail time credit was enforced regarding his

conviction for a lesser included misdemeanor for jail time accumulated on the original felony

rape charge.

       {¶ 11} In contrast to this case, the misdemeanor in Haddox was not a separate offense.

In Haddox, the sentence “ * * * [arose] out of the offense for which the prisoner was convicted

and sentenced.” R.C. 2967.191.        Since Carter’s misdemeanor incarceration arose from a

separate, unrelated offense, Haddox does not support the assignment of error.
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        {¶ 12} As noted above, R.C. 2967.191 enforces the right to equal protection under the

Fourteenth Amendment. The trial court properly applied the law to the facts of this case and did

not violate Carter’s Constitutional rights. We overrule this assignment of error.



                              C. THIRD ASSIGNMENT OF ERROR

        {¶ 13} Carter’s third assignment of error states:

                              THE     TRIAL COURT           DENIED APPELLANT DUE

                PROCESS BY DENYING HIM CREDIT FOR JAIL TIME SERVED

                PRE-TRIAL WITHOUT A HEARING ON THE ISSUE OF JAIL TIME

                CREDIT.

{¶ 14} Carter claims that he was entitled to a separate hearing upon his objection to the court’s

determination of jail time credit. All of the facts relied upon by the trial court in calculating jail

time credit were from the court’s records and stated in Carter’s presence during the sentencing

hearing. Carter did not request a separate hearing, object to, or question any of the facts stated by

the trial court at the time of sentencing.

{¶ 15} The sentencing hearing demonstrated that the trial court knew the facts necessary to

make factual findings regarding jail time credit. In discussing when a trial court has the duty to

hold a separate hearing to determine the facts needed to compute jail time credit we have stated:

        Thus, under Coyle and Nunez, a hearing is required where the court does not have

        the necessary information to calculate jail credit. Conversely, where the court

        possesses the necessary facts, a hearing would not be required.

Ayers, 2d Dist. Montgomery No. 25489, 2013-Ohio-4234, at ¶ 12, citing Coyle, 2d Dist.
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Montgomery No. 23450, 2010-Ohio-2130, and State v. Nunez, 2d Dist. Montgomery No. 21495,

2007-Ohio-1054.

{¶ 16} Because the facts of record clearly demonstrate that Carter was not entitled to additional

jail time credit, the trial court did not abuse its discretion in failing to hold a separate hearing on

the issue after Carter objected. We overrule the third assignment of error.

{¶ 17} We have overruled all three of Carter’s assignments of error and affirm the trial court

judgment.



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

DONOVAN and FROELICH, JJ., concur.




Copies mailed to:



Mathias H. Heck
Michele D. Phipps
J. Allen Wilmes
Hon. Barbara P. Gorman
