State v. Smith , 2021 Ohio 4091 ( 2021 )

[Cite as State v. Smith, 2021-Ohio-4091.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 21AP-48
(C.P.C. No. 19CR-1778)
v. :
(REGULAR CALENDAR)
Michael J. Smith, III, :
Defendant-Appellant. :
D E C I S I O N
Rendered on November 18, 2021
On brief: G. Gary Tyack, Prosecuting Attorney, and Mark R.
Wilson, for appellee. Argued: Mark R. Wilson.
On brief: The Stavroff Law Firm, and Jeffrey T. Stavroff, for
appellant. Argued: Jeffrey T. Stavroff.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Defendant-appellant, Michael J. Smith, III, appeals from a judgment of the
Franklin County Court of Common Pleas sentencing him to 24 months of imprisonment on
his conviction, pursuant to a guilty plea, of having a weapon while under a disability, and
finding he had 32 days of jail-time credit toward that sentence. Because we conclude the
trial court did not plainly err in determining Smith's jail-time credit, we affirm.
No. 21AP-48 2
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Smith's appeal challenges the trial court's allocation of jail-time credit
between a sentence imposed in January 2021 and prior sentences imposed for convictions
in 2016. Therefore, we will briefly summarize the history of all the relevant sentences.
{¶ 3} In July 2016, Smith pled guilty to grand theft of a motor vehicle, a fourth-
degree felony in violation of R.C. 2913.02, in Franklin C.P. No. 15CR-3524. That same
month, Smith pled guilty to one count of robbery, a third-degree felony in violation of R.C.
2911.02; one count of attempted felonious assault, a third-degree felony in violation of R.C.
2923.02; and one count of receiving stolen property, a fourth-degree felony in violation of
R.C. 2913.51, in Franklin C.P. No. 15CR-4921. The trial court sentenced Smith to 11 months
of imprisonment in 15CR-3524, to be served consecutive to the sentence in 15CR-4921, and
an optional 3-year post-release control period. The court sentenced Smith to an aggregate
term of 48 months of imprisonment in 15CR-4921, with a mandatory 3-year post-release
control period. The trial court found Smith had 303 days of jail-time credit.
{¶ 4} On December 19, 2018, the trial court granted Smith's motion for judicial
release; it suspended the remaining sentences in 15CR-3524 and 15CR-4921 and imposed
three years of community control. The court advised Smith he would receive the original
sentences in 15CR-3524 and 15CR-4921, minus any jail-time credit, if he violated
community control. The trial court found Smith had 1,178 days of jail-time credit in 15CR-
4921 and zero days of jail-time credit in 15CR-3524.
{¶ 5} On December 30, 2018, Smith had an altercation at a bar and later exchanged
gunfire with some of the individuals involved in the altercation. The incident resulted in
Smith being indicted on one count of felonious assault, a second-degree felony in violation
of R.C. 2903.11, with a firearm specification, and one count of having a weapon while under
disability, a third-degree felony in violation of R.C. 2923.13, in Franklin C.P. No. 19CR-
1778.
{¶ 6} In February 2019, the trial court declared Smith an absconder in 15CR-3524
and 15CR-4921, and issued warrants ordering the Franklin County Sheriff to take Smith
into custody on community control violations.
No. 21AP-48 3
{¶ 7} On April 4, 2019, Smith was arrested on the absconder warrants in 15CR-
3524 and 15CR-4921, and the charges forming the basis for the indictment in 19CR-1778.
Smith was continuously held in custody after April 4, 2019.
{¶ 8} On November 23, 2020, Smith pled guilty in 19CR-1778 to one count of
having a weapon under disability, and the trial court entered a nolle prosequi on the
felonious assault charge. The trial court issued termination entries in 15CR-3524 and
15CR-4921 on December 31, 2020, finding Smith had accumulated jail-time credit in the
amount of the original sentences and discharged him from community control in those
cases.
{¶ 9} At the sentencing hearing for 19CR-1778 on January 6, 2021, the state
acknowledged Smith had been continuously held in custody for 644 days since April 4,
2019, but argued he was only entitled to 32 days of jail-time credit on 19CR-1778:
When [Smith] was granted judicial release on the '15 cases, he
had a total of jail and prison time credit of 1,178 days. That was
on a sentence of a total of 4 years, 11 months, which by my
calculations, when he got jail time – when he got judicial
release that he had 612 days left to serve on the '15 cases.
He's been in on this case – he was arrested out of this incident
April 4th of '19, giving him 644 days of credit. My request
would be that 612 of those days go toward the '15 cases and he
only be awarded 32 days on the pending case. I think that is
what would be appropriate here.
(Jan. 6, 2021 Tr. at 3-4.)
Smith's trial counsel did not object to the state's jail-time credit calculation, stating "as to
the jail credit, the government is correct * * * [y]ou can allocate that jail credit however you
want." Id. at 6. Assessing the allocation of jail-time credit, the trial court stated:
I do agree with the State that the time he did in jail is essentially
eating up his time that he would have been sent to prison –
back to prison on anyway. * * * [T]he reality is he got time
served on those two felonies that he otherwise would have went
to prison for.
Id. at 15.
{¶ 10} The trial court sentenced Smith to 24 months of imprisonment in 19CR-1778
and found he had 32 days of jail-time credit. Smith timely appealed the trial court's
sentencing entry.
No. 21AP-48 4
II. ASSIGNMENT OF ERROR
{¶ 11} Smith assigns the following as trial court error:
The trial court committed plain and reversible error by failing
to attribute and certify jail time credit to Appellant, in
violation of the rights guaranteed to Appellant under the
Equal Protection Clauses of the United States and Ohio
Constitutions, and R.C. 2967.191.
III. STANDARD OF REVIEW
{¶ 12} Because Smith did not object to the jail-time credit calculation at the
sentencing hearing, he has waived all but plain error. State v. Slager, 10th Dist. No. 08AP-
581, 2009-Ohio-1804, ¶ 16. "A court will find plain error only when (1) there was an error,
(2) the error was 'plain,' i.e., obvious, and (3) the error 'affected substantial rights.' " State
v. Young, 10th Dist. No. 18AP-630, 2020-Ohio-462, ¶ 32, quoting State v. Tench, 156 Ohio
St.3d 85, 2018-Ohio-5205, ¶ 217. The accused bears the burden of demonstrating plain
error on the record. Id. We have held that a trial court's failure to properly calculate a
felony offender's jail-time credit and include it in the body of the sentencing judgment is
plain error. See State v. Mills, 10th Dist. No. 09AP-198, 2009-Ohio-6273, ¶ 13; State v.
Collier, 184 Ohio App.3d 247, 2009-Ohio-4652, ¶ 18 (10th Dist.).
IV. LEGAL ANALYSIS
{¶ 13} Smith's sole assignment of error argues the trial court should have granted
644 days of jail-time credit in 19CR-1778 because he was continuously confined on that case
from April 4, 2019 until the sentencing hearing on January 6, 2021. Smith asserts the trial
court's decision to credit 612 of the 644 days of jail-time credit only to 15CR-3524 and 15CR-
4921, and the remainder of 32 days to 19CR-1778, was contrary to the requirements of R.C.
2967.191 and the Supreme Court of Ohio's ruling in State v. Fugate, 117 Ohio St.3d 261,
2008-Ohio-856.
{¶ 14} "[T]he 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. Maynard, 10th
Dist. No. 08AP-43, 2008-Ohio-3829, ¶ 13, citing Fugate at ¶ 7. This principle "is codified
in R.C. 2967.191 and * * * the Ohio Administrative Code provides additional details
concerning when a prisoner is entitled to jail-time credit and how to apply the credit to the
prison term." Id. at ¶ 14, citing Fugate at ¶ 8-9.
No. 21AP-48 5
{¶ 15} R.C. 2967.191 requires the Ohio Department of Rehabilitation and Correction
("ODRC") to "reduce the prison term of a 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, including confinement in lieu of bail while awaiting trial, * * * as
determined by the sentencing court * * *." If an offender is serving two or more sentences
concurrently, ODRC "shall independently reduce each sentence or stated prison term for
the number of days confined for that offense." Ohio Adm.Code 5120-2-04(E).1 By contrast,
if an offender is serving two or more sentences consecutively, ODRC is directed to "reduce
the aggregate definite sentence * * * by the total number of days the offender was confined
for all of the offenses for which the consecutive sentences * * * were imposed." Ohio
Adm.Code 5120-2-04(F).2 Thus, there are different rules for jail-time credit depending on
whether concurrent or consecutive sentences are imposed. Maynard at ¶ 14.
{¶ 16} In Fugate, the Supreme Court held that "[w]hen a defendant is sentenced to
concurrent prison terms for multiple charges, jail-time credit pursuant to R.C. 2967.191
must be applied toward each concurrent prison term." Fugate at syllabus. The defendant
in Fugate was convicted on felony charges and previously had been convicted on other
felony charges and placed on community control. Id. at ¶ 3. Immediately before sentencing
on the new convictions, the trial court held a revocation hearing. The trial court imposed a
12-month sentence for the community control violation and found the defendant had 213
days of jail-time credit. Id. The trial court then imposed concurrent sentences on the later
convictions but did not grant jail-time credit on those sentences. Id. at ¶ 4-5.
{¶ 17} On appeal, the Supreme Court held the objective of R.C. 2967.191 and the
rules contained in Ohio Adm.Code 5120-2-04 is 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 time that they were previously held." Id. at ¶ 11. "[I]n 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." Id. at ¶ 12. The court reasoned that "[i]f an offender is sentenced to concurrent
1 As of January 6, 2021, the quoted provision was set forth in Ohio Adm.Code 5120-2-04(F). Effective
May 27, 2021, an amendment to the rule moved the quoted provision to Ohio Adm.Code 5120-2-04(E).
2 As of January 6, 2021, the quoted provision was set forth in Ohio Adm.Code 5120-2-04(G). Effective
May 27, 2021, an amendment to the rule moved the quoted provision to Ohio Adm.Code 5120-2-04(F).
No. 21AP-48 6
terms, applying credit to one term only would, in effect, negate the credit for time that the
offender has been held" and would violate the Equal Protection Clause. Id. at ¶ 22.
Accordingly, the court concluded, because Fugate had been held in custody on the
community control violation and the later convictions, and had been sentenced to
concurrent sentences, he was entitled to jail-time credit on all those sentences. Id.
{¶ 18} We have held that Fugate does not apply when a trial court "sentence[s] [a
defendant] to an amount of time equal to the amount of jail time credit he had, which
result[s] in [the defendant] having already served his sentence for the community control
violation by the time of the sentencing hearing." State v. Speakman, 10th Dist. No. 08AP-
456, 2009-Ohio-1184, ¶ 13. See also State v. Allen, 10th Dist. No. 19AP-285, 2020-Ohio-
5155, ¶ 46-49; State v. Smith, 10th Dist. No. 08AP-736, 2009-Ohio-2166, ¶ 49. Other Ohio
courts have similarly held that Fugate does not apply "when the trial court essentially
sentences the defendant to 'time served' for a community control violation but does not run
the community control violation sentence concurrent with the sentence for the new
crimes." State v. Dobbins, 12th Dist. No. CA2019-04-061, 2020-Ohio-726, ¶ 22. See also
State v. Maddox, 8th Dist. No. 99120, 2013-Ohio-3140, ¶ 49.
{¶ 19} In this case the trial court did not impose a sentence for the community
control violations in 15CR-3524 and 15CR-4921 to be served concurrently with the sentence
for the conviction in 19CR-1778. Instead, it found Smith had served jail time equal to the
time remaining on his original sentences in 15CR-3524 and 15CR-4921. Accordingly, the
trial court applied 612 days of jail-time credit to those sentences and terminated 15CR-3524
and 15CR-4921 before the sentencing hearing in 19CR-1778. At the sentencing hearing, the
trial court credited the remaining 32 days Smith had spent in jail awaiting sentencing to the
sentence imposed in 19CR-1778. Under these circumstances Fugate did not apply, and the
trial court did not plainly err by refusing to apply the 612 days of jail time that completed
his sentences in 15CR-3524 and 15CR-4921 as jail-time credit in 19CR-1778.
{¶ 20} Accordingly, Smith's sole assignment of error is overruled.
No. 21AP-48 7
V. CONCLUSION
{¶ 21} For the foregoing reasons, we overrule Smith's sole assignment of error and
affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BEATTY BLUNT and JAMISON, JJ., concur.
_____________