[Cite as State v. Chasteen, 2014-Ohio-3780.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                               BUTLER COUNTY




STATE OF OHIO,                                       :

        Plaintiff-Appellee,                          :     CASE NO. CA2013-11-204

                                                     :          OPINION
    - vs -                                                       9/2/2014
                                                     :

BRANDON A. CHASTEEN,                                 :

        Defendant-Appellant.                         :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2013-06-0899



Michael T. Gmoser, Butler County Prosecuting Attorney, Kimberly L. McManus, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Christopher P. Frederick, 304 North Second Street, Hamilton, Ohio 45011, for defendant-
appellant



        PIPER, J.

        {¶ 1} Defendant-appellant, Brandon Chasteen, appeals his sentence in the Butler

County Court of Common Pleas for multiple counts of burglary, grand theft, theft, and

vandalism.

        {¶ 2} In 2011, Chasteen was arrested for theft-related offenses. The indictment

charged a single count of grand theft, and two counts of theft from an elderly person in case
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number CR2011-10-1689. Chasteen pled guilty to amended counts of theft and grand theft,

and the trial court sentenced him to an aggregate four-year sentence. The trial court stayed

the sentence, ordered Chasteen to complete a drug rehabilitation program, and placed

Chasteen on community control for five years.

       {¶ 3} In 2013, and while he was on community control for his 2011 crimes, Chasteen

committed burglary when he broke into two separate homes and stole the homeowners'

jewelry collections. Chasteen was arrested on May 31, 2013, and charged with two counts of

burglary, one count of grand theft, two counts of vandalism, and one count of theft in case

number CR2013-06-0899. Bond was set at $250,000, but Chasteen did not post bond and

was incarcerated from the time of his arrest. On June 4, 2013, the Butler County probation

department filed a notice of violation, and the trial court held a hearing two days later and

found that Chasteen had violated the terms of his community control in case number

CR2011-10-1689. The trial court ordered Chasteen held in custody for his community control

violation.

       {¶ 4} Although Chasteen originally pled not guilty to the 2013 charges, he reached a

plea agreement with the state and pled guilty to amended charges. The trial court sentenced

Chasteen to serve an aggregate sentence of seven years for his crimes specific to case

number CR2013-06-0899. 133 days passed between Chasteen's arrest for his 2013 crimes

and sentencing, all of which Chasteen spent in jail.

       {¶ 5} At the time of sentencing for his 2013 crimes, the trial court found that

Chasteen violated the terms of his community control in case number CR2011-10-1689. The

trial court revoked community control through an administrative termination, and gave

Chasteen 461 days jail-time credit toward his 2011 crimes in case number CR2011-10-1689,

but gave no jail credit toward Chasteen's 2013 crimes in case number CR2013-06-0899.

Chasteen now appeals the trial court's decision to not give him 133 days of jail-time credit
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toward his 2013 crimes, raising the following assignment of error:

        {¶ 6} THE TRIAL COURT IMPOSED A SENTENCE CONTRARY TO LAW WHEN IT

FAILED TO GIVE MR. CHASTEEN JAIL-TIME CREDIT.

        {¶ 7} Chasteen argues in his sole assignment of error that the trial court erred when it

did not give him 133 days jail-time credit toward his 2013 crimes in case number CR2013-06-

0899.

        {¶ 8} Relying on the principles inherent in the Equal Protection Clause, courts have

held that defendants who are unable to afford bail must be credited for the time they are

confined while awaiting trial. State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, ¶ 7. "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." Id. (Emphasis sic).

        {¶ 9} The Ohio legislature codified this principle within R.C. 2967.191, which states

that "the department of rehabilitation and correction shall reduce the stated prison term of a

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 * * *." The trial court makes the factual

determination as to the number of days of confinement that a defendant is entitled to have

credited toward his sentence. State v. Rarden, 12th Dist. Butler Nos. CA2008-08-185 to 187

and CA2008-08-189 to 191, 2009-Ohio-5637, ¶ 10, citing State ex rel. Rankin v. Ohio Adult

Parole Auth., 98 Ohio St.3d 476, 2003-Ohio-2061, ¶ 7.

        {¶ 10} In Fugate, the court was asked to determine the proper way to apply jail-time

credit when a defendant is sentenced to concurrent sentences. The court held, "when

concurrent prison terms are imposed, courts do not have the discretion to select only one

term from those that are run concurrently against which to apply jail-time credit." 2008-Ohio-
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856 at ¶ 12. The court reasoned that "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." Id. The court

went on to hold that "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." Id. Based upon this law,

Chasteen argues that his 133 days spent in jail should be credited to his 2013 crimes as well.

       {¶ 11} Despite Chasteen's argument, the trial court properly credited the 133 days

toward Chasteen's 2011 crimes under case number CR2011-10-1689. "Although the

principle of crediting time served seems fairly simple on its face, in practice, it can be

complicated when, inter alia, the defendant is charged with multiple crimes committed at

different times, or when the defendant is incarcerated due to a probation violation." State v.

Haley, 12th Dist. Butler No. CA2012-10-212, 2013-Ohio-4531, ¶ 21, quoting State v. Chafin,

10th Dist. Franklin No. 06AP-1108, 2007-Ohio-1840, ¶ 9. An offender is not entitled to jail

time credit for any period of incarceration that arose from facts which are separate and apart

from those on which his current sentence is based. Haley at ¶ 21, citing State v. DeMarco,

8th Dist. Cuyahoga No. 96605, 2011-Ohio-5187, ¶ 10. As such, a trial court does not give

jail-time credit for time served on unrelated offenses, "even if that time served runs

concurrently during the pre-detention phase of another matter." Haley at ¶ 21, quoting State

v. Maddox, 8th Dist. Cuyahoga No. 99120, 2013-Ohio-3140, ¶ 31.

       {¶ 12} For example, this court found that an appellant was not entitled to any

additional jail-time credit where he was confined on unrelated charges and "was not being

held solely on the robbery offense for which he was convicted and sentenced." State v.

Bradford, 149 Ohio App.3d 586, 2002-Ohio-5508, ¶ 7 (12th Dist.).

       {¶ 13} The record indicates that Chasteen was arrested and incarcerated for

committing burglary, theft, and vandalism. Almost immediately, the Butler County Probation
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Department notified the trial court of Chasteen's violation of community control, and the court

specifically ordered Chasteen held for his violation of community control. While the detention

originated from the 2013 crimes, such detention was also based upon Chasteen's violation of

his community control so that the trial court gave Chasteen jail-time credit specific to the

2011 crimes under case number CR2011-10-1689.

       {¶ 14} Despite Chasteen's reliance on Fugate, the facts and circumstances of the

case at bar are distinguishable. Although Fugate specifically held that jail-time credit must be

given when sentences are run concurrently, the trial court did not run Chasteen's seven-year

aggregate sentence in case number CR2013-06-0899 concurrent to any sentence for

Chasteen's 2011 crimes in case number CR2011-10-1689.                 Instead, the trial court

administratively dismissed CR2011-10-1689 as unsuccessful community control, and ordered

no imposition of the four-year sentence that had been stayed in that case. Essentially, the

trial court sentenced Chasteen to 461 days, and then credited 461 days toward that

sentence. Chasteen, however, was never ordered to serve any more time for his 2011

crimes under case number CR2011-10-1689, and thus, Fugate is not applicable because

there were no concurrent sentences imposed for Chasteen's 2011 and 2013 crimes.

       {¶ 15} Multiple other courts have recognized that Fugate is not applicable when the

trial court essentially sentences the defendant to 'time served' for a community control

violation but does not run the community control violation concurrent with the sentence for

the new crimes. See State v. Speakman, 10th Dist. Franklin Nos. 08AP-456 to 458, 2009-

Ohio-1184, ¶ 13 (finding Fugate distinguishable where "the court sentenced appellant to an

amount of time equal to the amount of jail time credit he had, which resulted in appellant

having already served his sentence for the community control violation by the time of the

sentencing hearing"); State v. Maddox, 8th Dist. Cuyahoga No. 99120, 2013-Ohio-3140, ¶ 49

(finding Fugate inapplicable where the trial court did not order appellant to concurrent
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sentences for his probation violation and new crimes, and instead, "essentially sentenced

Maddox to time served for those violations"); and State v. Smith, 10th Dist. Franklin Nos.

08AP-736, 09AP-72, 2009-Ohio-2166, ¶ 48 (finding Fugate inapplicable where the trial

court's "express intention was to apply all of the time to the community control violation as the

full sentence for that violation" so that there were no concurrent sentences imposed).

        {¶ 16} After reviewing the record, we find that this is not a case where Chasteen was

sentenced to concurrent prison time for his violation of community control and his new 2013

crimes. Rather, Chasteen completed his prison sentence under the community control

violation before he was sentenced for his 2013 crimes under case number CR2013-06-

0899.1 Accordingly, the 461-day sentence and the seven-year aggregate sentence could not

be served simultaneously, and Fugate is inapplicable for that reason. As such, the trial court

did not err in calculating Chasteen's jail-time credit, and Chasteen's assignment of error is

overruled.

        {¶ 17} Judgment affirmed.


        RINGLAND, P.J., and S. POWELL, J., concur.




1. Chasteen argues that his sentence for the 2011 crimes was not terminated until after he was sentenced on
his 2013 charges so that Fugate is applicable. However, the trial court expressly stated at the time it sentenced
Chasteen for the 2013 crimes that it was applying all jail-time credit to Chasteen's probation violation. The trial
court addressing the probation violation mere seconds after imposing sentence for the 2013 crimes did not
change the fact that the trial court administratively terminated the 2011 community control after essentially
sentencing Chasteen to time served, or change the fact that Chasteen had completed his 461-day sentence
before the trial court sentenced him on the 2013 charges. Whether the trial court terminated the 2011 case prior
to or after sentencing Chasteen on the 2013 charges does not change the fact that no concurrent sentences
were imposed.
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