[Cite as State v. Smiley, 2013-Ohio-4495.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99486



                                       STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                vs.

                                     JAMES J. SMILEY
                                               DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-553453

        BEFORE:           McCormack, J., Boyle, P.J., and Keough, J.

        RELEASED AND JOURNALIZED: October 10, 2013
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Chief Public Defender

By: John T. Martin
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Milko Cecez
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
TIM McCORMACK, J.:

       {¶1} James Smiley appeals from a judgment of the Cuyahoga Court of Common

Pleas sentencing him to a six-month jail term for his conviction of attempted drug

possession.    He claims the trial court erred in not granting him jail-time credit.         After a

careful review of the record and applicable law, we affirm the court’s judgment.

                         Substantive Facts and Procedural History

       {¶2} The facts of this case are not in dispute. On August 11, 2011, Smiley was

arrested for drug abuse involving heroin.            He was subsequently indicted for drug

possession, a fifth-degree felony, and possessing criminal tools — a spoon with heroin

residue — a fifth-degree felony.       On September 9, 2011, Smiley failed to appear in court

for his arraignment.     The court issued a capias for him.

       {¶3} A few weeks later, Smiley was arrested for an unrelated burglary case in

Medina County, in Medina C.P. No. 1-CR-0447. He was held in Medina County jail

from September 26, 2011, to May 9, 2012, when he was transferred to a prison to

complete his 18-month sentence in the case.1

       {¶4} A week into his prison term for the Medina case, on May 16, 2012, the

Cuyahoga County Court of Common Pleas issued a capias and ordered Smiley’s return


          On October 19, 2011, while in Medina County jail, Smiley filed a “Motion for Notice of
       1


Availability,” informing the court that he was in Medina County jail and requested a timely resolution
of the present case. Nothing was done, however, and on April 26, 2012, while still in the Medina
jail, he filed a motion to dismiss, alleging speedy trial violations. On May 16, 2012, Smiley filed
another motion to dismiss. Under a plea deal, however, he withdrew his motions to dismiss and
pleaded guilty to a lesser offense of attempted drug possession.
from Medina County to Cuyahoga County in connection with the present case.               For

unknown reasons, the order was not carried out until six months later; on December 5,

2012, he was finally brought to the Cuyahoga County jail to face charges here.

       {¶5} Smiley was held in Cuyahoga County jail until January 2, 2013. On that

day, he pleaded guilty to attempted drug possession, a first-degree misdemeanor, and the

court sentenced him to 180 days in jail, to run concurrently with the prison sentence he

was already serving in the Medina case.      The trial court specifically ordered that there

would be no credit for time served in the Cuyahoga County jail; in the sentence entry the

court stated: “No jail credit. All credit applied to Medina County case.”2

       {¶6} Smiley filed a timely appeal from his sentence.3 In his sole assignment of

error, he contends the trial court erred when it failed to give him jail-time credit in the

instant case for the time he served in the Cuyahoga County jail awaiting the disposition of

the case.




         Smiley apparently completed his 18-month prison term in the Medina case on March 26,
       2


2013. There was no evidence in the record that his Medina prison term was increased by the 28
days he was held in Cuyahoga County jail.

          Smiley posted personal bond on May 23, 2013, and was released from Cuyahoga County
       3


jail pending the outcome of this appeal.
                                        Jail-time Credit

       {¶7} The practice of awarding jail-time credit has its roots in the Equal

Protection Clauses of the Ohio and United States Constitutions. State v. Maddox, 8th Dist.

Cuyahoga No. 99120, 2013-Ohio-3140, ¶ 38, citing State v. Fugate, 117 Ohio St.3d 261,

2009-Ohio-856, 883 N.E.2d 440, ¶ 7. “Ohio has long awarded offenders a ‘jail-time

credit’ at sentencing for the time they were confined while awaiting trial, in order to

equalize the treatment of those who could afford bail with those who could not.” State

v. Hargrove, 1st Dist. Hamilton No. C-120321, 2013-Ohio-1860, ¶ 5, citing Fugate.

Jail-time credit is necessary because

       [a] person with money will make bail while a person without money will
       not. If both persons are given identical sentences, the reality is that unless
       the person who did not make bail is given credit for his pretrial time, the
       poorer person will have served more time than the other. Unequal treatment
       based on personal wealth is anathema to the Constitution as a denial of
       equal protection.

Fugate at ¶ 25 (Stratton, J., concurring).

       {¶8} This principle of equal treatment is codified in R.C. 2967.191 for

offenders sentenced to prison, and in R.C. 2949.08 for offenders sentenced to jail.

Hargrove at ¶ 6.     Under both statutes, an offender is entitled to have the sentence

reduced by the days he or she was confined prior to conviction.     Both statutes   require

a sentence to be reduced by the total number of days an offender was confined “for any

reason arising out of the offense” for which the offender was convicted and sentenced.

R.C. 2967.191 and 2949.08(C)(1).
       {¶9} Citing Fugate as authority, Smiley claims the 28 days he spent in Cuyahoga

County jail, between December 5, 2012 (when he was transferred there) and January 2,

2013 (when he was sentenced), should have been credited toward his sentence in the

Cuyahoga case.     Because he did not object to the court’s determination that no jail-time

credit would be given to the Cuyahoga case, we review the claim under a plain-error

analysis.

       {¶10} Smiley’s reliance on Fugate is misplaced.           In Fugate, the defendant

committed burglary and theft while on community control for a prior case.        He was held

in jail awaiting simultaneously for the disposition of the community control violation case

and the burglary and theft case.    The trial court imposed 12 months for the community

control violation and credited defendant the days he spent in jail, and then sentenced him

to two years in the burglary and theft case, concurrent to his term for the community

control violation case, but with no jail-time credit.

       {¶11} The issue on appeal in Fugate was whether the jail-time credit awarded by

the trial court to his sentence in only one of the two cases should be applied to both cases.

 The Supreme Court of Ohio held that when a defendant is sentenced to concurrent

prison terms for multiple cases, jail-time credit pursuant to R.C. 2967.191 must be applied

toward each of the concurrent prison terms. Fugate at syllabus.         The court explained

that, when 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.”
       {¶12}      Although the trial court here imposed a jail term on Smiley for the instant

case concurrent with his sentence for the Medina case, this case is not analogous to

Fugate. The Fugate defendant was held in jail awaiting for the disposition of two cases

simultaneously (community control violation and burglary and theft), and his concurrent

terms for these two cases were imposed at the same time.      Consequently, as the Supreme

Court of Ohio explained, applying credit to only one case would effectively negate the

jail-time credit given.

       {¶13} The facts of this case are readily distinguishable from Fugate.           Here,

Smiley had already been sentenced and was in the midst of serving an 18-month prison

term for a prior case, when he was transferred to Cuyahoga County and held in jail for the

instant case.   The 28 days he was held in the Cuyahoga jail was time he would have been

incarcerated for his Medina conviction.         Although this case involved a concurrent

sentence, Fugate does not apply. See, e.g., State v. DeMarco, 8th Dist. Cuyahoga No.

96605, 2011-Ohio-5187, ¶ 11 (distinguishing Fugate); Maddox, 8th Dist. Cuyahoga No.

99120, 2013-Ohio-3140, ¶ 49 (distinguishing Fugate).

       {¶14} Finally, we emphasize that, because Smiley was serving a prison sentence

for a previous case when he was held in Cuyahoga County jail, he could not have posted

bond and been released while awaiting the disposition of the new case.        Therefore, the

trial court’s refusal to give jail-time credit did not offend the notion of equal protection,

which, as the Fugate court explained, is the overall objective of           jail-time credit.

Fugate at ¶ 11.
      {¶15} For the foregoing reasons, the trial court did not commit an error, plain or

otherwise, in not awarding jail-time credit to a defendant serving prison time in a prior

out-of-county case for the time held in the county jail awaiting the disposition of a

subsequent, unrelated case.   The assignment of error is without merit.

      {¶16} Judgment affirmed.

      It is ordered that appellee recover of appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


______________________________________________
TIM McCORMACK, JUDGE

MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
