[Cite as State v. Gent, 2009-Ohio-5429.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               VAN WERT COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 15-09-08

        v.

ROBERT GENT, JR.,                                        OPINION

        DEFENDANT-APPELLANT.




                Appeal from Van Wert County Common Pleas Court
                          Trial Court No. CR 09-02-023

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                            Date of Decision: October 13, 2009




APPEARANCES:

        Kelly J. Rauch for Appellant

        Kevin Taylor for Appellee
Case No. 15-09-08


SHAW, J.

      {¶1} Defendant-Appellant Robert Gent, Jr. (“Gent”) appeals from the

April 27, 2009 Judgment Entry of the Court of Common Pleas, Van Wert County,

Ohio, denying Gent’s motion for jail time credit.

      {¶2} The facts relevant to this appeal are as follows. On March 7, 2008,

the Van Wert County Grand Jury indicted Gent on two felony counts for

Involuntary Manslaughter and Reckless Homicide. Gent remained in jail until his

arraignment on March 12, 2008 when he was released on an unsecured personal

surety bond. Shortly thereafter, Gent was arrested by Allen County, Indiana,

authorities and incarcerated for a parole violation committed in that state. On May

8, 2008 when Gent failed to appear at a pretrial hearing, because he remained

incarcerated in Indiana, the Van Wert trial court revoked Gent’s personal surety

bond and issued a warrant for his arrest. On July 23, 2008, Gent was sentenced

for the parole violation in Indiana and subsequently sent to an Indiana correctional

facility to begin serving his sentence. On October 14, 2008, the Indiana prison

transferred Gent to the Van Wert Correctional Facility to stand trial for the felony

counts listed on the March 7, 2008 indictment.

      {¶3} On February 6, 2009, the Grand Jury reindicted Gent on the

Involuntary Manslaughter count to correct a defect in the original indictment and

dropped the Reckless Homicide count. On February 26, 2009, Gent entered a plea



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of “No Contest” to a Bill of Information charging Assault, a first degree

misdemeanor, and specifying the following agreement as a basis for the plea.

        The State will dismiss the involuntary Manslaughter indictment
        and will recommend a sentence of 180 days in jail to run
        consecutively to defendant’s sentence in Indiana. Defendant will
        execute a waiver of extradition and will return to Ohio to serve
        his jail sentence after he is released from prison in Indiana.

Gent signed the Bill of Information and trial court dismissed the felony charge

previously indicted.1 On March 11, 2009, the trial court found Gent guilty of

Assault and sentenced him 180 days in the Van Wert County jail to be served

consecutive to the sentence he was serving in Indiana. Two weeks later, Gent was

returned to the Indiana prison to complete the remainder of his sentence for his

offense in that state.

        {¶4} On April 8, 2009, Gent filed a Motion for Jail Time Credit under

R.C. 2949.08(C) for the 163 days he was incarcerated in Van Wert, from October

14, 2008 to March, 25, 2009. The trial court ultimately denied Gent’s motion

stating:

        This court finds that the Defendant is not entitled to any jail
        time credit toward his sentence in Van Wert County since he
        was under sentence from the state of Indiana while incarcerated
        in Van Wert County, Ohio. Further the plea agreement and the
        sentence specifically stated that the defendant was to serve his


1
  For ease and clarity of review, it should be noted that the original March 2008 indictment, Case No. CR-
08-03-014, was later superseded by the February 2009 reindictment, Case No. 09-02-017. The trial court
eventually consolidated Case No. 09-02-017 to be a part of Case No. 09-02-023, under which the Bill of
Information was filed.


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Case No. 15-09-08


        sentence in Van Wert County, Ohio after his prison term in the
        state of Indiana.

        {¶5} Gent now appeals, asserting a single assignment of error.

                            ASSIGNMENT OF ERROR

        THE TRIAL COURT ERRED IN DENYING APPELLANT’S
        MOTION FOR JAIL TIME CREDIT.

        {¶6} In his sole assignment of error, Gent argues that the trial court erred

by denying his motion for jail time credit. Specifically, Gent asserts that he should

be granted jail time credit for the 163 days he spent incarcerated in Van Wert

County, from October 14, 2008 to March 25, 2009, while awaiting the final

disposition of his trial.

        {¶7} Gent primarily relies on R.C. 2949.08(C)(1) which states in pertinent

part:

        If the person is sentenced to a jail for * * * a misdemeanor, the
        jailer in charge of a jail shall reduce the sentence of a person
        delivered into the jailer’s custody * * * by the total number of
        days the person was confined for any reason arising out of the
        offense for which the person was convicted and sentenced,
        including confinement in lieu of bail while awaiting trial . . . .
        (Emphasis added).

This identical statutory language is also found in R.C. 2967.191 and has been

thoroughly interpreted in cases analyzing its application to apply only to the time

spent in confinement “arising out of the offense for which the prisoner was

convicted and sentenced” and does not entitle a prisoner to “credit for time served



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Case No. 15-09-08


in another jurisdiction for another offense.” State v. McWilliams (1998), 126 Ohio

App.3d 398, 400, 710 N.E.2d 729.

      {¶8} Prior to his arrival to the Van Wert County Correctional Facility on

October 14, 2008, Gent was imprisoned in Indiana where he was serving a

sentence for a separate offense. Despite being physically detained in Van Wert,

Gent accrued credit for time served toward his Indiana sentence. Thus, Gent’s

confinement in Van Wert for this period of time was not arising out of the Van

Wert offense for which he was later convicted and sentenced.          See State v.

Lawrence (1996), 111 Ohio App.3d 44, 46-47, 675 N.E.2d 569 (denying jail time

credit on identical facts and finding that appellant received credit only on his

Indiana sentence for all the time spent in custody in Ohio); see also State ex rel.

Moss v. Subora (1987), 29 Ohio St.3d 66, 505 N.E.2d 965 (holding that the

defendant was not entitled to have the time credited twice against sentences

imposed for two separate offenses committed in different jurisdictions).

Therefore, because Gent continued to serve time under his Indiana sentence while

confined in Van Wert, he is not entitled to double credit for both the Indiana and

Van Wert sentences.

      {¶9} Furthermore, despite the language of the statute above, to credit the

time as Gent now requests contradicts the express sentencing authority of the trial

court. R.C. 2929.41(B)(1) states:



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       A jail term or sentence of imprisonment for a misdemeanor shall
       be served consecutively to any other prison term, jail term, or
       sentence of imprisonment when the trial court specifies that it is
       to be served consecutively . . . .

In the instant case, the trial court specified in the judgment entry for sentencing

that the jail term for Gent’s misdemeanor conviction would be served consecutive

to his Indiana prison sentence.

       Defendant is sentenced to 180 days in the Van Wert County Jail
       to be served in the custody of the Van Wert County Sheriff. The
       court further orders that this sentence be served consecutive to
       the sentence the Defendant is now serving in Indiana. After the
       Defendant has completed his sentence in the State of Indiana he
       will return to the State of Ohio to serve his 180 days in the Van
       Wert County Jail. (Judgment Entry, March 13, 2009) (Emphasis
       added).

The trial court clearly exercised its authority consistent with the sentencing statute

above. Therefore because the trial court acted within its authority to specify the

misdemeanor sentence to be served consecutively, Gent is not entitled to jail time

credit for the time he spent in Van Wert from October 2008 to March 2009.

       {¶10} In addition, Gent entered into a plea agreement which specifically

states that he would serve his sentence in Van Wert after the completion of his

prison term in Indiana.     In exchange for pursuing a lesser charge, the State

recommended a sentence of 180 days to be served consecutive to Gent’s Indiana

prison term. The agreement further stated that Gent “will return to Ohio to serve

his jail sentence after he is released from prison in Indiana.” Thus, upon entering



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his plea of no contest, Gent agreed to serve his sentence in Van Wert consecutive

to his Indiana prison sentence.

       {¶11} We note, however, that apart from the contested 163 days, Gent is

entitled to five days of jail time credit from his indictment on March 7, 2008 to his

arraignment and release on March 12, 2008.           During this time, Gent was

incarcerated in Van Wert solely related to the offense committed there. It was

after his release from Van Wert custody that Gent was arrested and incarcerated

by the Indiana authorities.

       {¶12} Based on the foregoing, the March 11, 2009 Judgment Entry of the

Court of Common Pleas, Van Wert County, Ohio, denying Gent’s motion for jail

time credit is affirmed in part as to the 163 days from October 14, 2008 to March

25, 2009 and reversed in part as to the five days spent in Van Wert custody

between March 7, 2008 to March 12, 2008. The cause is remanded to the trial

court with instructions to grant Gent jail time credit for the five days from March

7, 2008 to March 12, 2008.

                                                       Judgment Affirmed in Part,
                                                            Reversed in Part, and
                                                                Cause Remanded

PRESTON, P.J. and ROGERS, J., concur.

/jlr




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