State v. Beck

2022 Ohio 2013

• Court: Ohio Court of Appeals
• Decided: June 14, 2022
• Docket: 21-COA-022 & 21-COA-023
• Status: Published

Opinion

[Cite as State v. Beck, 2022-Ohio-2013.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case Nos. 21-COA-022 RICHARD BECK, JR. : 21-COA-023 : Defendant-Appellant : : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Ashland County Court of Common Pleas, Case Nos. 19- CRI-195 and 20-CRI-159

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 14, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHRISTOPHER R. TUNNELL MATTHEW J. MALONE Ashland Prosecutor 10 East Main Street BY: NADINE HAUPTMAN Ashland, OH 44805 Assistant Prosecutor 110 Cottage Street, Third Floor Ashland, OH 44805 Ashland County, Case Nos. 21-COA-022 & 21-COA-023 2

Gwin, P.J.

{¶1} Appellant Richard O. Beck, Jr. appeals his sentences entered on November

2, 2021, in the Ashland County Court of Common Pleas. Appellee is the State of Ohio.

Facts & Procedural History

{¶2} On September 13, 2019, appellant was indicted on one count of possession

of heroin in Case Number 19-CRI-195. Appellant initially filed a motion for intervention in

lieu of conviction, but he withdrew the motion after his probation officer filed a motion to

revoke bond for testing positive for oxycontin and methamphetamine. Appellant then pled

guilty to the charge. The trial court sentenced him to 120 days of house arrest with credit

of eight days for time served, and three years of community control. At the sentencing

hearing and in the sentencing entry, the trial court informed appellant if he violated his

community control, he could be sentenced to up to twelve months in prison.

{¶3} On June 8, 2020, appellant’s probation officer filed a motion to revoke

appellant’s community control in 19-CRI-195 due to appellant’s possession of heroin.

Appellant admitted to violating his community control. The trial court ordered appellant

to remain on community control, but the trial court also ordered appellant to serve a 60-

day jail sanction that was immediately suspended if he was admitted to Crosswaeh

Community Based Correctional Facility (“Crosswaeh”). Appellant was admitted to

Crosswaeh on the 19-CRI-195 case, and as a sanction for violating his community control

in a separate case out of Richland County.

{¶4} On September 10, 2020, appellant was indicted on the following counts in

Ashland County: possession of heroin, possession of a fentanyl-related compound, and

illegal use or possession of drug paraphernalia (Case Number 20-CRI-159). Appellant Ashland County, Case Nos. 21-COA-022 & 21-COA-023 3

pled guilty to the possession of heroin count in exchange for the remaining counts being

dismissed. On December 7, 2020, the trial court sentenced appellant to sixty days of

house arrest with credit of seven days for time served, and two years of community

control. At the sentencing hearing and in the sentencing entry, the trial court informed

appellant if he violated the terms and conditions of his community control, he could be

sentenced to up to twelve months in prison.

{¶5} On June 23, 2021, appellant’s probation officer filed a motion to revoke his

community control in 19-CRI-195 and 20-CRI-159 for using THC and methamphetamine.

Appellant was not arrested upon the filing of the motion to revoke, but was ordered to

report to the courthouse for a bond hearing and arraignment. At an evidentiary hearing

on July 28, 2021, appellant admitted to violating his community control in both cases.

{¶6} The trial court held a sanction hearing on November 1, 2021. The trial court

noted it was appellant’s first violation in Case Number 20-CRI-159 and his second

community control violation in Case Number 19-CRI-195.

{¶7} In the 2019 case, the trial court revoked appellant’s community control and

imposed a six-month prison sentence. The trial court gave appellant 70 days of jail time

credit in the 2019 case. The jail time credit of seventy days in 19-CRI-159 represents the

time appellant was held in the Ashland County Jail upon his arrest in September of 2019

until he bonded out, and the time he spent in Crosswaeh in August and September of

2020, minus the days he spent in jail as a sentence on Ashland Municipal Court Case No.

19CRB007 (Domestic Violence). For the 2020 case, the trial court revoked appellant’s

community control and imposed a six-month prison sentence, with seven days of jail time

credit. Ashland County, Case Nos. 21-COA-022 & 21-COA-023 4

{¶8} The trial court stated:

I’m going to order that those two sentences be served concurrently.

So your aggregate prison sentence for the two cases, although there will be

two separate sentencing entries, one for each case, but they’re going to be

run concurrently, so what you’re looking at is six months in prison with seven

days’ credit, plus one additional day for each day served in the Ashland

County Jail.

A sentencing entry in 19-CRI-195 will show 70 days’ credit plus one

additional day, but because you’re serving them both concurrently, it’s the

20-CRI-159 case that’s actually going to control the length of your sentence,

of your prison sentence because that’s * * * the longer period, potentially, in

prison.

And, again, for both of those, you’ll receive additional day credit for

time spent in jail pending your delivery to the Department of Rehabilitation

and Corrections.

{¶9} The trial court issued two separate sentencing judgment entries on

November 2, 2021, one in the 2019 case, and one in the 2020 case.

{¶10} Appellant reported to the Ashland County Jail on November 15, 2021. He

spent fifteen days in jail before being delivered to the Ohio Department of Rehabilitation

and Corrections on November 30, 2021. Appellant received 85 days of jail time credit on

Case Number 19-CRI-195 (70 days in the sentencing entry plus 15 days awaiting

transport), and 22 days of jail time credit on Case Number 20-CRI-159 (7 days in the Ashland County, Case Nos. 21-COA-022 & 21-COA-023 5

sentencing entry plus 15 days awaiting transport). His prison term was calculated utilizing

22 days of jail time credit.

{¶11} Appellant appeals both 19-CRI-195 and 20-CRI-159. He assigns the same

assignment of error in both cases:

{¶12} “I. APPELLANT WAS DENIED EQUAL PROTECTION OF LAW IN

VIOLATION OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES

CONSTITUTION WHEN THE TRIAL COURT FAILED TO AWARD APPELLANT JAIL-

TIME CREDIT FROM ONE CASE TOWARD BOTH OF HIS CONCURRENT

SENTENCES.”

I.

{¶13} Appellant contends the trial court committed error in failing to credit him with

a total of 85 days of jail time credit on both cases.

{¶14} Initially, we note the trial court sentenced appellant to a period of

incarceration of six months, commencing November 30, 2021, with jail time credit of

twenty-two days. Appellant filed a motion to stay execution of sentence pending appeal;

the trial court denied his motion. This Court also denied appellant’s motion for stay of

execution and bail pending appeal. It appears appellant has served his entire sentence;

therefore, any error in the trial court’s calculation of his jail time credit is moot. State v.

Quinteros, 5th Dist. Holmes No. 17CA002, 2017-Ohio-8825. Nonetheless, in the interest

of justice, we will address appellant’s sole assignment of error. Id.

{¶15} Appellant did not object to the jail time credit at the time of sentencing.

Because appellant failed to raise the issue in the trial court when it could have corrected Ashland County, Case Nos. 21-COA-022 & 21-COA-023 6

any error, he has forfeited all but plain error for purposes of appeal. State v. Marini, 5th

Dist. Tuscarawas No. 09-CA-6, 2009-Ohio-4633.

{¶16} Appellant contends the 85 days of jail time credit should have been applied

towards each concurrent prison term, rather than 85 days credit in the 2019 case and 22

days credit in the 2020 case. The additional jail time credit given to appellant in the 2019

case was for the time he spent in Crosswaeh, and for the time he spent in the Ashland

County Jail when he was arrested on the 2019 charge, prior to his release on bond.

{¶17} Appellant relies on State v. Fugate in support of his argument. 117 Ohio

St.3d 261, 2008-Ohio-856, 883 N.E.2d 440.

{¶18} In Fugate, the parties agreed the appellant had been held simultaneously

on the three charges involved, two of which were new offenses committed while he was

on community control. Id. Following Fugate’s conviction on the new offenses, he was

sentenced to prison terms that were concurrent with the time imposed for the community

control violation, but the trial court applied jail time credit only as to the latter violation. Id.

The Ohio Supreme Court found that the practice of awarding jail time credit is rooted in

the Equal Protection Clause, as disparate treatment of defendants based on their

economic status is not permitted. Id. Thus, a defendant who is unable to afford bail “must

be credited for the time they are confined while awaiting trial * * *.” Id.

{¶19} The Supreme Court cited R.C. 2967.191 in its discussion (“the department

of rehabilitation and correction shall reduce the stated 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 * * *). The Supreme Court also identified Ohio Adm. Code 5120- Ashland County, Case Nos. 21-COA-022 & 21-COA-023 7

2-04(F) as bearing on a prisoner’s entitlement to jail time credit. This section provides, “if

an offender is serving * * * two stated prison terms * * * concurrently, the department shall

independently reduce each sentence or stated prison term for the number of days

confined for the offense. Release of the offender shall be based upon the longest definite

minimum and/or maximum sentence or stated prison term after reduction for jail time

credit.”

{¶20} In Fugate, the Ohio Supreme Court held, “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 * * * 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.” Id. The Court continued, “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.”

Id.

{¶21} We find the facts in this case distinguishable from Fugate. Unlike in Fugate,

where the defendant was “being held on both charges,” appellant was not “held on” the

2020 charge when he was in Crosswaeh, or when he was being held prior to his plea in

the 2019 case. Fugate applies only to a defendant entitled to jail time credit under R.C.

2967.191, i.e., on each charge for “which he is actually being held.” The Crosswaeh

confinement was the sanction for a probation violation in 19-CRI-195 and a Richland

County case, not 20-CRI-159. Appellant is arguing for a forward application of the jail

time credit before his arrest on the 2020 case. Ashland County, Case Nos. 21-COA-022 & 21-COA-023 8

{¶22} This Court has held that “the felony offense of conviction must be a legal

cause for the defendant’s prior confinement in order for that confinement to be creditable.”

State v. Marini, 5th Dist. Tuscarawas No. 09-CA-6, 2009-Ohio-4633; State v. Henry, 5th

Dist. Guernsey No. 20CA000017, 2021-Ohio-888 (time spent in jail or prison for unrelated

cases cannot be counted towards another case); State v. Cupp, 156 Ohio St.3d 207,

2018-Ohio-5211, 124 N.E.3d 811 (a defendant is not entitled to jail time credit for

presentence detention time when held on a bond if, during the same period of time, he is

serving a sentence on an unrelated case); see also State v. Wyburn, 6th Dist. Lucas No.

L-10-1292, 2011-Ohio-5307 (defendant cannot benefit from prospective application of a

larger jail time credit from an earlier conviction to a later conviction merely because the

sentences were made concurrent, because a defendant is not “held on” the charge).

{¶23} As this Court has previously stated, “the language of R.C. 2967.191 does

not allow the convicted person to turn his confinement for various convictions into a ‘bank’

of jail time that he ‘withdraws’ as needed for pending felony offenses.” State v. Quinteros,

5th Dist. Holmes No. 17CA002, 2017-Ohio-8825. Further, a defendant “cannot receive

credit for jail time spent on a case that did not yet exist.” State v. Morris, 5th Dist.

Tuscarawas No. 2017AP080025, 2018-Ohio-830. Appellant cannot receive jail time

credit in 20-CRI-159 for time served in 19-CRI-195, because the 20-CRI-159 case did not

yet exist when the jail time accrued.

{¶24} Appellant additionally cites this Court’s decision in State v. Carroll in support

of his argument. 2002 WL 253849, 2002-Ohio-764 (5th Dist. Fairfield). First, Carroll was

decided prior to this Court’s decisions in Marini, Morris, and Quinteros. Further, the facts

in Carroll are different from those in this case. In Carroll, the time appellant spent in a Ashland County, Case Nos. 21-COA-022 & 21-COA-023 9

community-based correctional facility (“CBCF”) was actually a portion of her sentence in

the case in which she sought to receive jail time credit, as the trial court placed the

appellant on community control on the condition that she enter and successfully complete

a CBCF. Id. When the trial court revoked her community control in the case for violating

probation after her completion of the CBCF program, it did not give her jail time credit in

that case since she was also in the CBCF program concurrently as a sanction for violating

her community control from a different county. Id.

{¶25} We found that since the CBCF program was a concurrent sentence that she

was serving in both the Fairfield County case and a Ross County case, the trial court

committed error in failing to apply jail time credit to both cases. Id. In this case, the time

appellant seeks jail time credit for (Crosswaeh time and time he was incarcerated prior to

pleading in the 2019 case) occurred before appellant was indicted in the 2020 case. The

jail time credit appellant seeks to apply to the 2020 case occurred prior to the existence

of the 2020 case. Accordingly, the facts in Carroll are not analogous to those in this case.

{¶26} The trial court gave appellant credit for the days he was incarcerated in the

jail on the 2020 case. This consisted of the days after appellant’s arrest on the 2020 case

until he posted bond. Appellant was not incarcerated when the motion to revoke was

filed, and he remained out on bond while he awaited the resolution of the motion to revoke

in both cases. He also received credit for the days he spent in the Ashland County Jail

prior to his delivery to the Ohio Department of Corrections. Appellant was not entitled to

credit in the 2020 case for the days he was either in Crosswaeh as a sanction in the 2019

case or in jail prior to posting bond in the 2019 case. Ashland County, Case Nos. 21-COA-022 & 21-COA-023 10

{¶27} The trial court properly credited appellant’s first period of incarceration and

Crosswaeh sanction time solely to 19-CRI-195, as it related solely to the charge in 19-

CRI-195, and pre-dated his indictment for the offenses in Case 20-CRI-159.

{¶28} Based on the foregoing, appellant’s assignment of error is overruled.

{¶29} The November 2, 2021 judgment entries of the Ashland County Court of

Common Pleas are affirmed.

By Gwin, P.J.,

Hoffman, J., and

Baldwin, J., concur