[Cite as State v. Harris, 2012-Ohio-5612.]
                             STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT

STATE OF OHIO,                                 )
                                               )   CASE NO. 11 MA 184
        PLAINTIFF-APPELLEE,                    )
                                               )
        - VS -                                 )         OPINION
                                               )
LONNIE M. HARRIS,                              )
                                               )
        DEFENDANT-APPELLANT.                   )

CHARACTER OF PROCEEDINGS:                          Criminal Appeal from the
                                                   Youngstown Municipal Court,
                                                   Case Nos. 10CRB1034 & 10TRD1272.

JUDGMENT:                                          Affirmed.

APPEARANCES:
For Plaintiff-Appellee:                            Attorney Dana Lantz
                                                   Youngstown City Prosecutor
                                                   Attorney Bassil Ally
                                                   Asst. City Prosecutor
                                                   26 S. Phelps Street, 4th Floor
                                                   Youngstown, OH 44503

For Defendant-Appellant:                           Attorney Douglas King
                                                   Hartford, Dickey & King
                                                   91 W. Taggart Street
                                                   P.O. Box 85
                                                   East Palestine, OH 44413




JUDGES:
Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Gene Donofrio


                                                   Dated: November 27, 2012
[Cite as State v. Harris, 2012-Ohio-5612.]
DeGenaro, J.
        {¶1}     Defendant-Appellant, Lonnie Harris, appeals the decision of the
Youngstown Municipal Court that imposed two consecutive six-month sentences following
a probation violation hearing. On appeal, Harris argues that the trial court abused its
discretion in imposing maximum and consecutive sentences. He also contends that the
trial court erred by failing to give him appropriate jail-time credit.
        {¶2}     Upon review, Harris’ arguments are meritless. Harris’ failure to raise
objections during sentencing waived these issues on appeal, absent plain error. Harris
has not demonstrated that the trial court committed an abuse of discretion, let alone plain
error, by imposing maximum and consecutive sentences. Further, the trial court’s failure
to discuss jail-time credit on the record was not plain error. The record does not indicate
that Harris was confined prior to his probation violation hearing, and he has not alleged
that he was prejudiced by any error. Accordingly, the judgment of the trial court is
affirmed.
                                   Facts and Procedural History
        {¶3}     On May 10, 2010, the Youngstown Municipal Court filed two complaints
against Harris. In Case No. 2010-TRD-1272, Harris was charged with driving under
suspension (Youngstown City Ordinance 335.07(a)), a first-degree misdemeanor; and
obedience to traffic control devices (Youngstown City Ordinance 313.01(a)), a minor
misdemeanor. In Case No. 2010-CRB-834, Harris was charged with obstructing official
business (Youngstown City Ordinance 525.07(a)), a first-degree misdemeanor. Harris
pled not guilty to all the charges and the court appointed him counsel.
        {¶4}     On June 1, 2010, the matter came before the court for a bench trial, and the
court subsequently issued a judgment entry, finding Harris guilty of driving under
suspension and obstructing official business. The court found that Harris was not guilty of
the traffic control devices charge. The court ordered Harris to pay $250 plus court costs
for each count, as well as $100 reimbursement for Community Control Supervision.
These fines were to be paid within six months. The trial court also sentenced Harris to 18
months intensive probation. The terms of his probation required him to undergo a drug
and alcohol assessment and be subject to random drug and alcohol screens.
        {¶5}     On May 5, 2011, the court granted Harris additional time, until June 30,
                                                                                       -2-


2011, to pay his fines and costs.
        {¶6}   On July 7, 2011, the Youngstown Municipal Court Probation Department
issued a notification of possible probation violation for Harris for failure to comply with
drug and alcohol treatment in both cases. The notice of probation violation for Case No.
2010-TRD-1272 also alleged that Harris had an unpaid balance of $424 of fines and
costs. Harris stipulated to probable cause for the probation violations on August 30,
2011.
        {¶7}   On September 29, 2011, the matter came before the court for a final
probation violation hearing. Following the hearing, the court issued a judgment entry
finding that Harris violated the terms of his probation. The court terminated Harris’
probation and sentenced him to 180 days incarceration for each of the two cases, to be
served consecutively.
        {¶8}   The State has declined to file an appellee’s brief. Accordingly, we “may
accept the appellant's statement of the facts and issues as correct and reverse the
judgment if appellant's brief reasonably appears to sustain such action.” App.R. 18(C).
                          Maximum Consecutive Sentences
        {¶9}   Harris asserts four assignments of error on appeal. Because the first three
assignments of error concern whether the trial court abused its discretion in sentencing
him to maximum, consecutive sentences, these assignments of error will be discussed
together:
        {¶10} “The trial court abused its discretion by imposing maximum consecutive
sentences.”
        {¶11} “The court’s consecutive six (6) month sentences imposes an unnecessary
burden on local government resources.”
        {¶12} “The imposition of maximum consecutive sentences is not supported by the
record herein.”
        {¶13} Misdemeanor sentences are reviewed for an abuse of discretion. State v.
Reynolds, 7th Dist. No. 08-JE-9, 2009-Ohio-935, ¶ 9. An abuse of discretion means
more than an error of judgment; it implies that the trial court's decision was unreasonable,
                                                                                       -3-


arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144
(1980). Because Harris did not raise any objections during sentencing, he has waived
appellate review, absent plain error. State v. Jick, 7th Dist. No. 08 MA 110, 2009-Ohio-
4966, ¶ 14. Pursuant to Crim.R. 52(B), plain error is an error which was an obvious
defect in the trial proceedings, and which affected the defendant's substantial rights.
State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240.
       {¶14} A trial court must consider the criteria of R.C. 2929.22 and the principles of
R.C. 2929.21 before imposing a misdemeanor sentence. State v. Crable, 7th Dist. No. 04
BE 17, 2004-Ohio-6812, ¶ 24. R.C. 2929.22(A) instructs the trial court to use its
discretion to determine the most effective way to achieve the purposes and principles of
sentencing set forth in R.C. 2929.21, without placing an unnecessary burden on local
government resources. R.C. 2929.22(B) sets forth specific factors for the trial court to
consider before imposing a sentence, including the nature and circumstances of the
offense, the offender's history of criminal conduct, the victim's circumstances, and the
likelihood that the offender will commit future crimes.
       {¶15} However, the trial court is not required to state on the record its
consideration of sentencing factors when determining a misdemeanor sentence. Id.
When a misdemeanor sentence is within the statutory range, “a reviewing court will
presume that the trial judge followed the standards in R.C. 2929.22, absent a showing to
the contrary.” Reynolds at ¶ 21, citing Crable at ¶ 24. A silent record creates a rebuttable
presumption that the sentencing court considered the statutory sentencing criteria. State
v. Best, 7th Dist. No. 08 MA 260, 2009-Ohio-6806, ¶ 14.
       {¶16} Here, the trial court revoked Harris’ probation and sentenced him to 180
days imprisonment on each offense, to be served consecutively. When a defendant
violates community control sanctions, the trial court may impose a jail term for which “the
total time spent in jail for the misdemeanor offense and the violation of a condition of the
community control sanction shall not exceed the maximum jail term available for the
offense for which the sanction that was violated was imposed.” R.C. 2929.25(D)(3).
Harris was originally convicted of driving under suspension and obstructing official
                                                                                      -4-


business, both first-degree misdemeanors which carry a maximum sentence of 180 days.
R.C. 2929.24(A)(1). Thus, Harris’ sentence was within the statutory range.
       {¶17} Harris argues that it is clear that the trial court did not consider the
sentencing criteria in R.C. 2929.22 because the nature and circumstances of the offenses
do not justify consecutive six-month sentences. However, Harris has not provided any
examples from the record to rebut the presumption that the trial court considered the
statutory sentencing criteria, such as where the trial court states that it has a
preconceived policy as to sentencing OVI offenders. See Jick at ¶ 21, citing State v.
Piotrowski, 10th Dist. No. 05AP-159, 2005-Ohio-4550. There is nothing in the record to
indicate that the trial court did not consider these sentencing criteria. Moreover, during
the sentencing hearing, the court considered Harris’ failure to attend drug assessments
and to pay his financial sanctions.
       {¶18} During the sentencing hearing, Harris’ probation officer advised the court
that Harris had received a negative termination from his drug treatment program for
failure to attend assessments and he had a “couple” positive screens for marijuana. For
Case No. 2010-TRD-1272, he had paid $5 towards the $429 in fines that were due on
June 30, 2011. He had also been convicted of two additional driving under suspension
charges on August 11, 2011 and September 21, 2011. The probation officer also
confirmed that Harris had satisfied the financial sanctions for Case No. 2010-CRB-834.
Harris’ counsel notified the court that Harris recently began attending his drug treatment
program and that he had limited funds and was self-employed by mowing lawns and
landscaping.
       {¶19} Upon review of the record, the trial court’s sentence was not unreasonable
or arbitrary. While Harris had satisfied part of his financial sanctions and apparently had
recently began complying with his drug treatment, he had violated the conditions of his
community control sanctions on drug usage and had been convicted twice during his
probation period for one of his underlying offenses. Moreover, while Harris urges us to
consider the “wisdom and logic” of the mandate of R.C. 2929.41 that only extraordinary
circumstances justify consecutive sentencing and R.C. 2929.22(C) that only the worst
forms of the offense merit maximum sentences, he concedes that these statutory
                                                                                         -5-


provisions have been declared unconstitutional. Jick at ¶ 16, citing State v. Brooks, 7th
Dist. No. 05 MA 31, 2006-Ohio-4610, ¶ 71; State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-
856, 845 N.E.2d 470. Thus, his arguments based on these statutory provisions lack
merit.
         {¶20} Finally, Harris contends that the trial court’s imposition of two consecutive
six-month sentences imposes an unnecessary burden on local government resources
given the nonviolent nature of his offenses. However, as discussed above, the trial court
imposed Harris’ sentences following his violation of the terms of his probation.
Furthermore, being placed under community control sanctions has not deterred Harris
from further criminal conduct.       Thus, the trial court’s sentence did not impose an
unnecessary burden on government resources.
         {¶21} Therefore, the trial court’s decision to impose maximum, consecutive
sentences was not an abuse of discretion, let alone plain error. Accordingly, the first
three assignments of error are meritless.
                                      Jail-Time Credit
         {¶22} In his fourth assignment of error, Harris argues:
         {¶23} “The trial court erred by failing to give Defendant/Appellant appropriate jail
time credit.”
         {¶24} Harris argues that the trial court erred because he was given no credit
towards his sentence for any time served in violation of the Equal Protection Clause of the
United States Constitution. He notes that the trial court failed to even consider the issue
of jail-time credit.
         {¶25} The practice of crediting jail-time is rooted in the Equal Protection Clause of
the U.S. Constitution. “The Equal Protection Clause does not tolerate disparate treatment
of defendants based solely on their economic status.” State v. Fugate, 117 Ohio St.3d
261, 2008-Ohio-856, 883 N.E.2d 440, ¶ 7. Thus, defendants unable to make bail while
awaiting trial must be credited for the time they are confined. Id. R.C. 2967.191 codifies
this concept and governs a defendant's entitlement to jail-time credit in Ohio, and
provides in pertinent part:
                                                                                          -6-



       “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 * * *.”

       {¶26} Harris did not object at the sentencing hearing to the trial court’s failure to
address jail-time credit nor did he file a motion for the court to determine such credit.
Thus, again this assignment of error will be reviewed for plain error. State v. McClellan,
7th Dist. No. 10 MA 181, 2011-Ohio-4557, ¶ 39. “Plain error does exist where the trial
court fails to properly calculate an offender's jail-time credit, pursuant to R.C. 2967.191,
and to include the amount of jail-time credit in the body of the offender's sentencing
judgment.” Id., citing State v. Miller, 8th Dist. Nos. 84540, 84916, 2005-Ohio-1300, ¶ 10.
       {¶27} In McClellan, this court found plain error where the trial court did not
address jail-time credit at the sentencing hearing nor did it mention whether the defendant
was entitled to jail-time credit in the sentencing entry. This court noted that the trial court
is required to compute jail-time credit and include such credit in the judgment entry.
Because there was no indication in the record that the trial court considered jail-time
credit, this court remanded the case for such consideration. Id. at ¶ 39-41.
       {¶28} Here, the record is unclear whether Harris is entitled to any jail-time credit.
Harris did not specify how many days of credit he believes should be credited to his
sentence or the dates he was confined. The record does show that he was subject to
electronically monitored house arrest (EMHA) leading up to the trial on June 1, 2010 for
the underlying offenses. He was originally arrested on May 11, 2010, and then released
on EMHA the next day. Harris would not be entitled to jail-time credit for time spent on
EMHA. See State v. Gowdy, 7th Dist. No. 07 MA 103, 2008-Ohio-1533, ¶ 27 (defendant
not entitled to jail-time credit for time spent on EMHA as presentence condition of bail).
       {¶29} However, the record does not reveal whether Harris spent time in jail
                                                                                         -7-


between the date of the notification of the probation violation and the probation violation
hearing. In McClellan, a capias was issued and the defendant was arrested prior to his
probation violation/sentencing hearing. Id. at ¶ 6-7. Thus, the record in that case showed
a potential error regarding jail-time credit. Whereas here, a capias was not issued for
Harris’ arrest prior to the probation violation hearing nor does the record contain evidence
that Harris was in jail prior to a Commitment/Mittmus that was issued the day after the
probation violation hearing.
       {¶30} We have previously held that “[t]o constitute plain error, the error must be
obvious on the record, palpable, and fundamental * * *.” State v. Barr, 158 Ohio App.3d
86, 2004-Ohio-3900, 814 N.E.2d 79, ¶ 12 (7th Dist.). Because the record lacks any
indication that Harris spent time in jail prior to the probation violation hearing, it follows
that the record is devoid of any consideration of jail-time credit by the trial court.
Moreover, because Harris has not argued that he actually spent time in jail, he has not
demonstrated that he was prejudiced by the trial court’s error. See State v. Fife, 2d Dist.
No. 2006-CA-33, 2007-Ohio-6588, ¶ 12. Thus, under these circumstances we decline to
find plain error. Accordingly, Harris’ fourth assignment of error is meritless.
       {¶31} In sum, Harris’ assignments of error are meritless. The trial court did not
abuse its discretion or commit plain error in sentencing Harris to consecutive, maximum
sentences. Further, the trial court did not commit plain error regarding jail-time credit, as
there is no indication that Harris was confined before his sentence and he has not alleged
any prejudice. Accordingly, the judgment of the trial court is affirmed.
Waite, P.J., concurs.
Donofrio, J., concurs.
