[Cite as State v. Heys, 2020-Ohio-692.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                  :
                                                :
         Plaintiff-Appellant                    :   Appellate Case No. 28374
                                                :
 v.                                             :   Trial Court Case No. 2019-CR-78
                                                :
 ALAN L. HEYS, JR.                              :   (Criminal Appeal from
                                                :   Common Pleas Court)
         Defendant-Appellee                     :
                                                :

                                           ...........

                                          OPINION

                           Rendered on the 28th day of February, 2020.

                                           ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
      Attorney for Plaintiff-Appellant

MICHAEL R. PENTECOST, Atty. Reg. No. 0036803, 117 South Main Street, Suite 400,
Dayton, Ohio 45422
      Attorney for Defendant-Appellee

                                          .............

DONOVAN, J.
                                                                                              -2-


       {¶ 1} On June 20, 2019, this Court granted the State’s motion for leave to appeal

the trial court’s decision awarding 183 days of jail-time credit to Alan L. Heys, Jr. For the

following reasons, the jail-time credit award is modified to reflect jail time credit of 17 days.

       {¶ 2} Heys was indicted on February 22, 2019, as follows: Count 1, breaking and

entering; Counts 2 and 3, receiving stolen property; and Count 4, resisting arrest.

Counts 1-3 are felonies of the fifth degree, and Count 4 is a misdemeanor of the second

degree.

       {¶ 3} On March 13, 2019, the trial court issued a warrant for Heys’s removal from

the Corrections Reception Center for arraignment on March 21, 2019. Heys pled not

guilty at his arraignment, and the trial court set his bond at $2,500.00. On March 22,

2019, a detainer entry and order was filed and bond was continued.

       {¶ 4} On April 3, 2019, Heys pled guilty to Count 1 and the remaining counts were

dismissed. The trial court’s judgment entry of conviction states that Heys and the State

waived a presentence investigation. The court sentenced Heys to six months in prison,

to be served concurrently with “Logan County Case No. 17050160” and with jail time

credit of 183 days. On the same day, the State filed a notice of objection to the inclusion

of the time served in Logan County in the jail time credit calculation. The State’s notice

provided that it objected “to the jail time credit placed on the record at the Defendant’s

sentencing in open court on April 3, 2019.” It further stated:

              Pursuant to State v. Gearheart, 2d Dist. 2015-Ohio-5297, the

       Defendant should not receive 183 days of jail time credit toward his

       sentence in this case.      The Defendant is serving a prison term for an

       unrelated offense from a different county. Even if given a concurrent prison
                                                                                            -3-


      term in this case, which the State has no objection to, the Defendant should

      not receive jail time credit for the time for which he has been serving his

      Logan County sentence.

             The Defendant was initially arrested for this offense on January 4,

      2019. He remained incarcerated on this offense until January 6, 2019[,]

      when he was released pursuant to the local 48 hour rule.                He was

      subsequently incarcerated on Logan County’s revocation and then

      sentenced to his current prison term.

             Based on the precedent of Gearheart, the Defendant should

      therefore be given 3 days of jail time credit.

      {¶ 5} On April 7, 2019, Heys filed a memorandum in support of the trial court’s jail

time credit calculation. Heys asserted that the State’s reliance upon Gearheart was

misplaced and that the jail-time credit calculation of 183 days was correct.              Heys

asserted that jail-time credit was calculated in accordance with State v. Cole, 2d Dist.

Montgomery No. 23327, 2009-Ohio-4580, which construed State v. Fugate, 117 Ohio

St.3d 261, 2008-Ohio-856, 883 N.E.2d 440. Heys further asserted:

             In its objection to the jail-time credit calculation here, the State cites

      Gearheart and indicates that Defendant “should not receive jail time credit

      for the time for which he has been serving his Logan County sentence.”

      He has not. The 183 days to which Defendant was given jail-time credit

      represents the pre-sentencing jail-time credit received in his Logan County

      case. Pursuant to Fugate and Cole, this credit must be applied to “each

      case of incarceration made concurrent”, i.e., to both the Logan County case
                                                                                       -4-


      and current Montgomery County case. Under Cole, the three days credit

      the State claims is due in the present Montgomery County case is

      subsumed into the 183 days credit from the Logan County case. This 183

      days is then applied to each of the concurrent sentences.            To hold

      otherwise would deny Defendant credit to which he is entitled for the longer

      term and constitute a violation of the Equal Protection Clause. Fugate,

      supra.

               Accordingly, Defendant submits that the State’s Objection to Jail-

      Time Credit Calculation must be overruled and that the Termination Entry

      herein must reflect a jail-time credit of 183 days as announced by the Court

      on April 3, 2019.

      {¶ 6} On April 10, 2019, the court issued an Order Granting Jail-Time Credit. The

court determined as follows:

               * * * Both the State and Defendant appear to agree that “[s]o long as

      two or more sentences are imposed concurrently, the jail-time credit

      applicable to each sentence applies to all sentences imposed.” [Citing Cole

      at ¶ 13.]    Likewise, they appear to agree that jail-time credit does not

      include time served under a “* * * sentence previously imposed for a

      different offense, even if that prior sentence is one with which the present

      sentence is ordered to be served concurrently.” [Citing Gearheart at ¶ 20.]

      However, they disagree as to whether the 183 days of jail-time credit

      calculated in this case includes time served under a sentence previously

      imposed in Logan County Case No. 17 05 0160.
                                                                                      -5-


             A review of the online docket in the Logan County case confirms that

      on February 22, 2019, Defendant was sentenced to a twelve-month prison

      term, with 183 days of jail-time credit. Because the six-month term to

      which Defendant will be sentenced in this case will be served concurrently

      to the twelve-month term in the Logan County case, the 183 days of jail-

      time credit applicable to the twelve-month term must be applied to this term.

      Accordingly, the Court GRANTS Defendant 183 days of jail-time credit.

(Footnotes omitted.)

      {¶ 7} In its brief on appeal, the State sets forth the following facts:

             On December 20, 2017, Alan Heys was sentenced to community

      control sanctions in Logan County Common Pleas Court Case Number CR

      17-05-169, following his plea to one count of theft. However, after he failed

      to report to his probation officer and his whereabouts became unknown, a

      capias was issued for Heys’s arrest on November 9, 2018.

             Heys’s whereabouts were later discovered on January 4, 2019, when

      he was arrested by Butler Township Police for breaking and entering and

      was booked into the Montgomery County Jail. He was released by Butler

      Township Police on January 6, 2019, but remained in custody as a result of

      his outstanding capias from Logan County. * * * The Logan County judge

      revoked Heys’s community control and, on February 22, 2019, sentenced

      him to twelve months in prison. * * * Heys was awarded 183 days of jail-time

      credit against his Logan County sentence.

             On the same day he was sentenced to prison in Logan County, Heys
                                                                                        -6-


      was indicted by the Montgomery County Grand Jury on one count of

      breaking and entering, two counts of theft of checks, and one count of

      resisting arrest, all relating to the Butler Township incident. * * * A warrant

      on indictment was served on Heys at the Correctional Reception Center

      (where he was sent following his Logan County sentencing), and he was

      subsequently conveyed back to Montgomery County. * * *

      {¶ 8} The State asserts that, despite “spending only three days in jail as a result

of his Montgomery County case prior to being sentenced to prison in Logan County, the

trial court elected to award Heys 183 days of jail-time credit – the same number of days

of jail-time credit that he was awarded in his Logan County case.”

      {¶ 9} The State asserts the following assignment of error:

             THE TRIAL COURT ERRED IN AWARDING ALAN HEYS JAIL-

      TIME CREDIT FOR TIME HE SPENT IN THE LOGAN COUNTY JAIL ON

      AN UNRELATED CASE.

      {¶ 10} The State asserts as follows:

             * * * Cole misapplied Fugate and was wrongly decided. For that

      reason and in view of the foregoing law and argument, the State of Ohio

      respectfully requests that this Court reconsider its holding in Cole, apply the

      more appropriate application of Fugate that was articulated by the Sixth

      District in [State v. Wyburn, 6th Dist. Lucas No. L-10-1292, 2011-Ohio-

      5307], and reverse the trial court’s jail-time credit calculation.

      {¶ 11} Heys responds that the State has “abandoned its reliance on Gearheart and

now argues on appeal that Cole was wrongly decided and should be reconsidered by this
                                                                                            -7-


Court.” Heys asserts that Cole was properly decided and properly applied in this matter,

and that to hold otherwise could violate the principles of stare decisis.         Heys again

asserts that the 3 days credit which the State claims is due to Heys is properly subsumed

into the 183 days credit from the Logan County case, and 183 days is then applied to

each of the concurrent sentences. Heys argues that “a majority of this Court” has upheld

and applied Cole on multiple occasions. According to Heys, the State has failed to

demonstrate the “special justification” that is required to depart from the enduring

principles of stare decisis and overturn this Court’s long-held precedent.

       {¶ 12} We are persuaded by the rationale in State v. Ways, 2d Dist. Montgomery

No. 25214, 2013-Ohio-293. Therein, Christopher Ways was sentenced on February 15,

2012, following a guilty plea, to 12 months in prison for trafficking in heroin in the vicinity

of a school or a juvenile, in violation of R.C. 2925.03(A)(1). Id. at ¶ 2. Ways received

jail-time credit of three days against his sentence. Id. at ¶ 3. On March 21, 2012, Ways

was sentenced to 18 months each for having weapons while under disability and for

carrying a concealed weapon, to be served concurrently.             The sentence was also

ordered to be served concurrently with the 12-month sentence Ways was already serving

for trafficking. Id. The trial court “allowed Ways a jail-time credit of three days against

the concurrent 18-month sentences.” Id. at ¶ 6. Ways sought additional jail time credit,

arguing that he “should receive credit for the 36 days he was incarcerated on the twelve-

month sentence * * * before the eighteen-month sentences were imposed.” Id. at ¶ 7.

Ways relied upon Fugate and Cole. The trial court denied the request after a hearing,

and Ways appealed. Id. at ¶ 7-8.

       {¶ 13} In Ways, this Court quoted the following from Bobo v. Dept. of Rehab. and
                                                                                     -8-


Corr., 10th Dist. Franklin No. 11AP-118, 2011-Ohio-4984, ¶ 13, on the “nature of

concurrent sentences.”

               “[T]he imposition of a concurrent sentence normally means that the

      sentence being imposed is to run concurrently with the undischarged

      portion of the previously imposed sentence.” (Emphasis sic.) State ex rel.

      Gray v. Karnes, 10th Dist. No. 10AP-789, 2010-Ohio-5364, ¶ 5, quoting

      State v. Bellamy,181 Ohio App.3d 210, 2009-Ohio-888, quoting Bianco v.

      Minor, (June 6, 2003), M.D.Pa. No. Civ.A 303CV0913. The definition of a

      concurrent sentence is to be contrasted with the definition of a consecutive

      sentence, where the second sentence cannot begin to be served until the

      first sentence has been completed. Bellamy, citing Richards v. Eberlin, 7th

      Dist. No. 04BE-1, 2004-Ohio-2636. Accordingly, “[t]he fact that sentences

      run concurrently merely means that the prisoner is given the privilege of

      serving each day a portion of each sentence. However, if the sentences

      which are to run concurrently are different lengths, the prisoner cannot be

      discharged until he has served the longest sentence.” Brinklow v. Riveland

      (Colo., 1989), 773 P.2d 517.

Ways at ¶ 9.

      {¶ 14} This Court determined as follows in Ways:

               * * * Where a sentence is imposed consecutively to a sentence that

      has already been imposed, and which the defendant has already begun

      serving, the defendant must complete the first sentence before he can begin

      serving day one of the second sentence. By contrast, where a sentence is
                                                                                         -9-


       imposed concurrently with a sentence that has already been imposed, and

       which the defendant has already begun serving, the defendant is given the

       comparative luxury of serving each day of his second sentence, beginning

       with the first day, concurrently with a day served on the first sentence. * * *

              As in Bobo, the result may be that the first sentence expires before

       the second sentence expires, even though the first sentence is a longer

       sentence.

Id. at ¶ 10-11.

       {¶ 15} This Court distinguished Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883

N.E.2d 440, and Cole, 2d Dist. Montgomery No. 23327, 2009-Ohio-4580, as follows:

              In State v. Fugate, two concurrent sentences were imposed at the

       same time. One sentence, a twelve-month sentence for Receiving Stolen

       Property, was imposed as the result of a community control revocation.

       The other sentence, a two-year sentence for Burglary, was imposed as the

       result of a conviction following a jury trial. The trial court allowed a 213-

       day jail-time credit against the twelve-month sentence, but did not allow any

       jail-time credit against the two-year sentence for Burglary. The Supreme

       Court of Ohio held:

                     * * * [A]lthough concurrent and consecutive terms are

              to be treated differently when jail-time credit is applied, the

              overall objective is the same: to comply with the requirements

              of equal protection by reducing the total time that offenders

              spend in prison after sentencing by an amount equal to the
                                                                            -10-


      time that they were previously held.

             Thus, in order to satisfy this objective, 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.         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. If

      courts were permitted to apply jail-time credit to only one of

      the concurrent terms, the practical result would be, as in this

      case, to deny credit for time that an offender was confined

      while being held on pending charges. 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.

[Fugate] at ¶ 11-12 (emphasis added).

      An affluent defendant, in the same situation as the defendant in

Fugate, would have been incarcerated for exactly two years – the two-year

prison term for Burglary. While serving that prison term, he would have

served the twelve-month sentence for Receiving Stolen Property, which

would begin on the same day, and would have ended after the first year of

his two-year sentence for Burglary.

      The defendant in Fugate, having been unable to post bond, would,
                                                                                    -11-


as originally sentenced, have been incarcerated for 213 days longer than

his identical affluent counterpart, because he would also serve the two-year

prison term for Burglary, but would have been incarcerated for 213 days

before he began serving either prison term. The Equal Protection Clause

of the Fourteenth Amendment to the United States Constitution requires

that the indigent defendant be treated no more severely than his affluent

counterpart.

         In State v. Cole, * * * the situation was similar. The defendant in that

case had been in pre-trial custody for some time on a charge of Receiving

Stolen Property. After he was convicted, he was placed on community

control. While on community control, the defendant in Cole was charged

with two counts of Felonious Assault, and [he] was incarcerated pending

trial.   On the same day, the defendant in that case pled guilty to the

reduced charge of Attempted Felonious Assault, and admitted having

violated the terms of his community control sanction imposed in the other

case. At a later date, the defendant in that case was sentenced in both

cases at the same time. He was sentenced to one year in each case, to

be served concurrently. The trial court allowed a jail-time credit of 143

days against the one-year sentence for Receiving Stolen Property,

apparently representing the total number of days he had been incarcerated

on that charge before having been sentenced to community control

sanctions, plus the number of days he had been incarcerated after having

been arrested for Felonious Assault. The trial court only allowed a jail-time
                                                                                        -12-


      credit of 83 against the one-year sentence for Attempted Felonious Assault,

      representing the time he had been incarcerated on that charge before the

      imposition of sentence in both cases.

             Relying upon State v. Fugate, * * * we reversed, holding that [Cole]

      was entitled to the full 143 days of jail-time credit against both sentences.

      Again, the reason for this somewhat counter-intuitive result lies in the

      disparate treatment that would otherwise be visited upon an indigent

      defendant and his otherwise identical affluent counterpart. * * * This would

      violate Equal Protection.

             The distinction between the Fugate and Cole cases and the case

      before us is that in those two cases, unlike the case before us, the

      concurrent sentences began on the same date.

(Footnote omitted.) Ways at ¶ 13-18.

      {¶ 16} R.C. 2967.191(A) provides:

             The department of rehabilitation and correction shall reduce the

      prison term of a prisoner, as described in division (B) of this section, 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, confinement for

      examination to determine the prisoner's competence to stand trial or sanity,

      confinement while awaiting transportation to the place where the prisoner is

      to serve the prisoner's prison term, as determined by the sentencing court

      under division (B)(2)(g)(i)1 of section 2929.19 of the Revised Code, and
                                                                                         -13-


      confinement in a juvenile facility. The department of rehabilitation and

      correction also 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, if any, that the prisoner previously served in the custody of

      the department of rehabilitation and correction arising out of the offense for

      which the prisoner was convicted and sentenced.

      {¶ 17} Significantly, “[t]his does not include time that the prisoner was incarcerated

by reason of a sentence previously imposed for a different offense, even if that prior

sentence is one with which the present sentence is ordered to be served concurrently.”

Ways at ¶ 20, citing Bobo, 10th Dist. Franklin No. 11AP-118, 2011-Ohio-4984. This

Court concluded as follows:

             Disallowing, for purposes of jail-time credit, periods of time that a

      prisoner has been incarcerated by reason of a sentence previously imposed

      and begun does not violate Equal Protection.         In the case before us,

      Ways’s affluent counterpart would be treated no more leniently. He would

      begin serving the first day of his eighteen-month sentences for the weapons

      offenses on March 21, 2012, concurrently with the 37th day of his sentences

      for Trafficking in Heroin, and would complete that sentence eighteen

      months later, on September 20, 2013. He would not get credit against his

      eighteen-month sentences for the time he had previously served on his

      twelve-month sentence for Trafficking in Heroin, and neither should Ways.

      Ways did apparently spend three days in jail on the Trafficking charge
                                                                                      -14-


      before he made bond, unlike his affluent counterpart, but he was allowed

      credit for those three days against both the twelve-month sentence and the

      eighteen month sentences, so that he will presumably be released on

      September 17, 2013, having been incarcerated for three days before any of

      his concurrent sentences began.

             The Fugate and Cole cases, upon which Ways relies, are inapposite.

      Because in both of those cases, the concurrent sentences began on the

      same day, there was no part of one concurrent sentence that had already

      been served before the second concurrent sentence was imposed. The

      issue of whether to apply a previously served part of a concurrent sentence

      as a jail-time credit against the subsequently imposed sentence did not

      arise in Fugate or Cole.

             Ways is not entitled to a jail-time credit against his eighteen-month

      sentences for that part of the twelve-month sentence that had already been

      served when those sentences were imposed. * * *

Ways at ¶ 21-23.

      {¶ 18} As emphasized by the Fifth District in State v. Marini, 5th Dist. Tuscarawas

No. 09-CA-6, 2009-Ohio-4633, ¶ 23:

             When different courts impose sentences at separate times, the

      sentences at best are only partly concurrent, and there is no requirement

      that courts arrange their cases in such a way as to maximize concurrency.

      State v. Carter, 2nd Dist. No. 1580, 2002-Ohio-6387. It is one thing to hold,

      such as the Supreme Court did in [Fugate] that jail time credit earned in two
                                                                                         -15-


      cases must be applied to both cases when the sentences are imposed

      concurrently by the same court. It would be quite another to hold in the

      present case that confinement while serving non-concurrent jail time must

      be awarded as “jail time” to reduce a later-imposed felony sentence.

      {¶ 19} This limitation on Fugate is consistent with a recent decision from the

Eleventh District in State v. Corpening, 2019-Ohio-4833, 137 N.Ed.3d 116, ¶ 25-26 (11th

Dist.), which determined as follows:

             Thus, the reason for which a defendant is incarcerated is paramount

      in determining jail-time credit. This court has consistently held that “jail-

      time credit is appropriate only when the facts and circumstances giving rise

      to the incarceration are the result of the charge for which the offender is

      eventually sentenced.” State v. Struble, 11th Dist. Lake No. 2005-L-115,

      2006-Ohio-3417, 2006 WL 1816704, ¶ 11. See also State v. Smith, 11th

      Dist. Geauga No. 2014-G-3185, 2014-Ohio-5076, 2014 WL 6139627, ¶ 16;

      State v. Moore, 11th Dist. Ashtabula, 2016-Ohio-3510, 67 N.E.3d 68, ¶ 18.

      Here, Ms. Corpening’s cases are unrelated: the earlier pertains to a

      probation violation from the underlying identity fraud conviction; the latter is

      a drug-related conviction.       Furthermore, the two cases were heard by

      different judges, and decided separately. Thus, time for which she was

      held exclusively on 2014-CR-00473 grounds is not credited against her

      2018-CR-00058 sentence and vice versa.

             Moreover, Fugate is distinguishable from the facts before us. In

      Fugate, the defendant was held in custody on three different charges
                                                                                        -16-


      simultaneously and was “therefore entitled to jail-time credit against each

      concurrent prison term.”     Id., at ¶ 18.   Fugate applies jail-time credit

      toward all concurrent prison terms imposed for charges on which an

      offender was held * * *.” (Emphasis added.) Id., at ¶ 21. In other words,

      the only time that may be counted as jail-time credit toward a sentence is

      time held on grounds related to that same sentence. Unrelated jail time

      may not be counted towards unrelated sentences. The Supreme Court of

      Ohio has recently reiterated this, stating, “an offender is only entitled to

      credit for time spent incarcerated on the offense for which he was

      convicted.”   State v. Cupp, 156 Ohio St.3d 207, 2018-Ohio-5211, 124

      N.E.3d 811, ¶ 21.

      {¶ 20} Based upon the foregoing, we conclude that the trial court erred in its

calculation of jail-time credit. As noted above, Heys’s February 22, 2019 Logan County

disposition preceded his disposition in Montgomery County. The parties do not dispute

that he was held for three days in Montgomery County following his arrest by Butler

Township law enforcement.       Bond was set on March 21, 2019, and the trial court

sentenced Heys on April 3, 2019, to six months. On that date, Heys commenced that

sentence concurrent with the forty-first day of his Logan County sentence. We conclude

that the trial court erred in crediting Heys with jail time from his Logan County sentence

toward his unrelated Montgomery County sentence. We also note that there was already

a warrant out for Heys on his Logan County case for non-reporting, which would

ostensibly generate a revocation. We conclude that Heys was entitled to three days of

jail time credit following his arrest in Montgomery County, plus the 14 days he was further
                                                                                          -17-


held on the Montgomery County case until sentencing, for a total of 17 days.

       {¶ 21} The State’s assignment of error is sustained.

       {¶ 22} Pursuant to R.C. 2953.08, we modify the judgment of the trial court

incorrectly awarding Heys 183 days of jail time credit to reflect a jail time credit award of

17 days.



                                      .............



FROELICH, J., concurs.

TUCKER, P.J., concurs:

       {¶ 23} I agree with the result reached by the majority opinion. I write separately

to express my conclusion, consistent with Judge Hall’s reasoning in his concurring opinion

in State v. Ways and Judge Welbaum’s dissenting opinion in State v. Shaw, 2d Dist.

Greene Nos. 2017-CA-35, 2017-CA-36, 2018-Ohio-3816, that State v. Cole was

incorrectly decided.




Copies sent to:

Mathias H. Heck, Jr.
Andrew T. French
Michael R. Pentecost
Hon. Steven K. Dankof
