[Cite as State v. Thomas, 2017-Ohio-607.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MARION COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 9-16-41

        v.

HUNTER RYAN THOMAS,                                      OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Marion County Common Pleas Court
                           Trial Court No. 2014-CR-092

                                     Judgment Affirmed

                          Date of Decision:   February 21, 2017




APPEARANCES:

        Robert C. Nemo for Appellant

        Kevin P. Collins for Appellee
Case No. 9-16-41



SHAW, J.

         {¶1} Defendant-appellant, Hunter Ryan Thomas, appeals the August 1, 2016

judgment of the Marion County Court of Common Pleas revoking his community

control sanctions and imposing a prison term of twelve months. On appeal, Thomas

assigns as error the trial court’s calculation of jail-time credit applied to this case.1

         {¶2} On March 5, 2014, in case number 2014-CR-092, the Marion County

Grand Jury indicted Thomas on one count of Trafficking in Heroin, in violation of

R.C. 2925.03(A)(1), (C)(6), a felony of the fifth degree.

         {¶3} On May 9, 2014, Thomas pleaded guilty to the charge as stated in the

indictment. The trial court accepted Thomas’ guilty plea and imposed a period of

two years of community control sanctions. The trial court notified Thomas that it

could impose a term of imprisonment if he violated the conditions of his community

control sanctions. The trial court specified that the term of imprisonment would be

twelve months.

         {¶4} On October 9, 2014, the trial court conducted a hearing prompted by

Thomas’ probation officer, who filed a notice of Thomas’ violations of the terms of



1
  “The term ‘jail-time credit’ is used as shorthand for custody credit. A prisoner receives credit for any time
spent in confinement, including ‘confinement in lieu of bail while awaiting trial, confinement for examination
to determine the prisoner’s competence to stand trial or sanity, and confinement while awaiting transportation
to the place where the prisoner is to serve the prisoner’s prison term.’ ” State v. Fugate, 117 Ohio St. 3d 261,
262, fn. 1, 2008-Ohio-856, ¶ 1, citing R.C. 2967.191.



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Case No. 9-16-41


his community control sanctions. The trial court found Thomas to be in violation

of his community control sanctions and ordered him to serve ten days in jail in the

instant case, 2014-CR-092. The trial court also continued Thomas’ community

control sanctions and again notified him that he was subject to the imposition of a

twelve-month prison term if he violated the terms of his community control

sanctions.

      {¶5} On August 11, 2015, the trial court held another hearing initiated by

Thomas’ probation officer’s claim of his violations. The trial court found that

Thomas had indeed violated the terms of his community control sanctions. The trial

court ordered that Thomas’ community control be continued, but extended the term

an additional 18 months. The trial court also ordered Thomas to complete a four to

six-month program at West Central Community Correctional Facility and to be

assessed for his eligibility for Drug Court after his successful completion of the

program at the community based correctional facility as additional terms of his

community control sanctions. The trial court reiterated its notification to Thomas

that he was subject to a twelve-month prison term upon violation of the terms of his

community control sanctions.

      {¶6} On February 19, 2016, the trial court conducted another hearing

regarding Thomas’ violations of his community control sanctions due to his

unsuccessful discharge from the community based correctional facility. The trial


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court found that Thomas had violated the terms of his community control sanctions

and ordered that Thomas’ community control sanctions be extended an additional

six months. The trial court further ordered Thomas to complete all requirements of

the Drug Court Program, attend and complete substance abuse programming at the

discretion of the probation department, and comply with the substance abuse

treatment recommendations of Maryhaven, an outpatient substance abuse facility,

as additional terms of his community control sanctions. The trial court again

notified Thomas that he was subject to a twelve-month term of imprisonment upon

violation of the terms of his community control sanctions.

      {¶7} On March 28, 2016, Thomas appeared before the trial court for his

regularly scheduled Drug Court session.           The trial court noted Thomas’

noncompliance with the program’s expectations by continuing to produce positive

drug tests and ordered Thomas to complete four hours of community service each

week until a negative drug screen was rendered.

      {¶8} On July 25, 2016, the trial court held a hearing on allegations asserted

by Thomas’s probation officer that Thomas had again violated the terms of his

community control sanctions. At the hearing, Thomas admitted to the violations.

The trial court discussed Thomas’ violations of the terms of his community control

sanctions in the instant case, 2014-CR-092, and in another case, 2013-CR-618, for




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Case No. 9-16-41


which Thomas was simultaneously serving a term of community control sanctions.2

The trial court specifically noted which terms of his community control sanctions

Thomas had violated in each case. The prosecution asked the trial court to revoke

Thomas’ community control sanctions in both cases. Defense counsel requested the

hearing be bifurcated so that jail-time credit in both cases could be determined.

Accordingly, the trial court’s disposition of Thomas’ violations of his community

control sanctions was continued for a later hearing.

        {¶9} On July 29, 2016, Thomas appeared for disposition. The prosecution

recommended a prison term be imposed in both case numbers 2013-CR-618 and

2014-CR-092, and that the prison terms be served consecutively. The trial court

discussed the nature of consecutive sentencing and noted that 209 days of the

calculated jail-time credit, which was comprised of the 163 days that Thomas spent

at the community based correctional facility and two periods of local jail

incarceration for 28 and 18 days respectively, would be credited to Thomas in case

number 2013-CR-618, and that twenty days of jail-time credit for two ten-day

periods of local jail incarceration would be credited to this case, 2014-CR-092.



2
  We do not have the record from case number 2013-CR-618, however it was indicated by the prosecutor in
the transcript of the July 25, 2016 violation hearing that Thomas was under indictment in case number 2013-
CR-618 when he committed the offense in the instant case, 2014-CR-092. The trial court noted that in case
number 2013-CR-618, Thomas was under Intervention in Lieu of Conviction status until October of 2014
when he was placed on community control sanctions. As previously discussed, Thomas was placed on
community control sanctions in the case before us, 2014-CR-092, on May 13, 2014. Thus, Thomas was on
community control sanctions in the case sub judice when he was also placed on community control sanctions
in case number 2013-CR-618.

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Case No. 9-16-41


Defense counsel objected to the trial court’s allocation of jail-time credit and sought

credit for the 209 days to be applied to both 2013-CR-618 and 2014-CR-092.

         {¶10} The trial court found sufficient reason to revoke Thomas’ community

control sanctions based upon his history of repeated violations and his unwillingness

to complete court-ordered drug treatment programs. The trial court imposed a

twelve-month prison term in case number 2014-CR-092 and a nine-month prison

term in case number 2013-CR-618, and ordered the prison terms to run

consecutively. As for jail-time credit, the trial court allocated 246 days of jail-time

credit to case number 2013-CR-618, which was comprised of six separate instances

that Thomas spent incarcerated in local jail amounting to 83 days, and the 163 days

that Thomas spent in the community based correctional facility. The trial court

allocated twenty days of jail-time credit to Thomas in case number 2014-CR-092.

The trial court journalized its sentence in this case in its August 1, 2016 judgment

entry.

         {¶11} Thomas filed this appeal, assigning the following assignments of error.

                   ASSIGNMENT OF ERROR NUMBER ONE

         THE TRIAL COURT ERRED BY FAILING TO AWARD
         APPELLANT ANY JAIL-TIME CREDIT IN ITS JUDGMENT
         ENTRY OF AUGUST 1, 2016, WHICH REVOKED
         APPELLANT’S COMMUNITY CONTROL SANCTIONS AND
         SENTENCED HIM TO A TERM OF TWELVE MONTHS IN
         PRISON.



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                 ASSIGNMENT OF ERROR NUMBER TWO

       THE TRIAL COURT ERRED BY FAILING TO GIVE
       APPELLANT CREDIT FOR THE TIME THAT APPELLANT
       SERVED AT THE CBCF AND LOCALLY.

                             First Assignment of Error

       {¶12} In his first assignment of error, Thomas argues that the trial court

failed to give him any jail-time credit in its judgment entry imposing a prison term

for the revocation of Thomas’ community control sanctions in case number 2014-

CR-092. However, a review of the record reveals that the trial court’s August 1,

2016 Judgment Entry states the following regarding jail-time credit.

       IT IS FURTHER ORDERED that the Defendant be transported
       to the Correctional Reception Center, Orient, Ohio for
       assignment to an appropriate penal institution. It is further
       ordered that the Defendant be given credit for 20 days of local jail
       time that he was confined through the date of sentencing for any
       reason arising out of this offense, plus any additional days the
       Defendant is confined between the date of sentencing and the date
       committed to the Reception Center.

(Doc. No. 53 at 2). The record further reflects that the parties agreed at the

revocation hearing that these twenty days of credit should be applied to case number

2014-CR-092. Accordingly, we overrule Thomas’ first assignment of error insofar

as he argues that he was not given any jail-time credit in this case.




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Case No. 9-16-41


                            Second Assignment of Error

       {¶13} In his second assignments of error, Thomas claims that the trial court

erred in failing to credit him 209 days of jail-time credit in the instant case, 2014-

CR-092. Thomas acknowledges that the trial court had already credited him these

209 days in case number 2013-CR-618. Nevertheless, Thomas maintains that he is

also entitled to jail-time credit for these 209 days in the instant case. The 209 days

in dispute consist of the following time periods:

       28 days: Local Jail Incarceration, August 6, 2015 to September
       2, 2015

       163 days: Community Based Correctional Facility, September 3,
       2015 to February 12, 2016

       18 days: Local Jail Incarceration, July 12, 2016 to July 29, 2016

       {¶14} Thomas claims that the trial court should have given him jail-time

credit for the 209 days in the instant case based upon the mere fact that the periods

of confinements comprising these days had been mentioned in the judgment entries

pertaining to both case number 2013-CR-618 and case number 2014-CR-092.

Notably, when confronted with Thomas’ argument at the revocation hearing, the

trial court disagreed and concluded that Thomas’ proposed calculation of jail-time

credit would amount to him receiving double credit for each day he served during

these time periods.




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Case No. 9-16-41


       {¶15} In State v. Fugate, the Supreme Court of Ohio recognized that the

practice of awarding jail-time credit is embedded in the Equal Protection Clauses of

the United States and Ohio Constitutions, which prohibit disparate treatment of

defendants based solely upon their economic status. State v. Fugate, 117 Ohio St.3d

261, 2008-Ohio-856, ¶ 7. The court further noted that, relying upon this principle,

“courts have held that defendants who are unable to afford bail must be credited for

the time they are confined while awaiting trial.” Id., citing Workman v. Cardwell,

338 F.Supp. 893, 901 (N.D.Ohio 1972).

       {¶16} The court observed that the foregoing principle is codified in R.C.

2967.191 and that the Ohio Administrative Code provides additional directives

concerning when a prisoner is entitled to jail-time credit and how to apply the credit

to the prison term. Fugate at ¶¶ 8-9. Specifically, Ohio Adm.Code 5120-2-04 sets

forth different rules for calculating jail-time credit depending upon whether the

offender is sentenced to concurrent or consecutive prison terms.

       {¶17} When an offender is sentenced to concurrent prison terms, Ohio

Adm.Code 5120-2-04(F) instructs the adult parole authority to independently

reduce each sentence for the number of days confined for that offense. See Fugate

at ¶ 9, citing Ohio Adm.Code 5120-2-04(F). Whereas for prison terms that are

served consecutively to one another Ohio Adm.Code 5120-2-04(G) instructs that

jail-time credit be allocated to the appropriate case or cases but applied only once,


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Case No. 9-16-41


to the total term. See Fugate at ¶ 10, citing Ohio Adm.Code 5120-2-04(G). The

court further explained when a defendant is sentenced to consecutive prison terms,

jail-time credit applied to one prison term gives full credit that is due as it reduces

the entire length of the prison sentence. Id. at ¶ 22.

       {¶18} Here, the record clearly reflects that the trial court ordered Thomas to

consecutively serve the prison terms imposed in 2013-CR-618 and in 2014-CR-092.

The record further establishes, and it is undisputed by the parties, that Thomas was

given full credit for the 209 days of jail-time credit in case number 2013-CR-618,

thereby being applied once and reducing the entire length of the prison sentence

consistent with the principles set forth in Ohio Adm.Code 5120-2-04(G) and

Fugate. Accordingly, Thomas’ second assignment of error is overruled.

       {¶19} For all these reasons, the assignments of error are overruled and the

judgment is affirmed.

                                                                 Judgment Affirmed

PRESTON, P.J. and WILLAMOWSKI, J., concur.

/jlr




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