[Cite as State v. Leach, 2024-Ohio-978.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
STATE OF OHIO : : Appellant : C.A. No. 2023-CA-34 : v. : Trial Court Case No. 2022 CR 179 : JAMES M. LEACH, JR. : (Criminal Appeal from Common Pleas : Court) Appellee : :
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OPINION
Rendered on March 15, 2024
MEGAN A. HAMMOND, Attorney for Appellant
JOHN A. FISCHER, Attorney for Appellee
.............
WELBAUM, J.
{¶ 1} The State appeals from a judgment imposing prison terms on Defendant-
Appellee James Leach, Jr., and awarding him jail-time credit toward those terms.
According to the State, the trial court erred in crediting Leach with 303 days of jail-time
credit. We agree. While Leach was being held on bond in the current case, he was -2-
serving prison time on an unrelated case, and jail-time credit is not allowed in this
situation. Further, the trial court ordered the sentences in this case to be served
consecutively to those in the unrelated case, and jail-time credit is also not allowed in that
situation.
{¶ 2} Accordingly, the trial court’s judgment will be reversed only as to the award
of jail-time credit. This case will be remanded for the trial court to file a new judgment
entry omitting the jail-time credit and for it to notify the Ohio Department of Rehabilitation
and Corrections (“ODRC”) of the change.
I. Facts and Course of Proceedings
{¶ 3} On April 29, 2022, Leach was indicted in the Greene County Court of
Common Pleas on seven felony counts arising from events that occurred on April 21,
2022. The charges included: two counts of felonious assault, second-degree felonies;
abduction, a third-degree felony; aggravated burglary (with a firearm specification), a first-
degree felony; grand theft, a third-degree felony; vandalism, a fourth-degree felony; and
inducing panic, a fifth-degree felony. A warrant on the indictment was served on Leach
at the Montgomery County Jail on May 2, 2022.
{¶ 4} At the time, Leach was in custody for charges brought against him in
Montgomery C.P. No. 2022 CR 01157. These charges were based on events that also
took place on April 21, 2022, but occurred in Montgomery County, Ohio. The charges
were two counts of failure to comply with an order or signal of police officer (serious -3-
physical risk or substantial risk of harm), third-degree felonies.1 On May 3, the court in
that case set bond of $5,000, and Leach remained in jail until disposition. Leach pled
guilty to one of the charges on May 16, 2022, and on May 31, 2022, the court filed a
judgment entry sentencing him to 24 months in prison and granting 36 days of jail time
credit up to the date of sentencing. State v. Leach, Montgomery C.P. No. 2022 CR
01157 (May 31, 2022) (“Case No. 01157”), p. 1, https://pro.mcohio.org (accessed on
February 5, 2024).
{¶ 5} On June 3, 2022, the court in the current case entered a not guilty plea for
Leach, set bond at $100,000 C/S GPS/Electronic Home Arrest Level II, and set trial for
August 1, 2022. Leach was conveyed to prison on the prior conviction on June 15, 2022.
ODRC then gave Leach 54 total days of jail-time credit and calculated his release date to
be April 24, 2024. See Case No. 01157, Notice of Commitment (July 8, 2022).
{¶ 6} Subsequently, the August trial date in the current case was continued and
trial was set for November 14, 2022. After Leach filed a motion to suppress, the court
continued the trial date and set a November 9, 2022 hearing on the motion. However,
on November 9, 2022, Leach appeared in court and pled guilty to counts 2, 4, 5, and 6 of
the indictment (felonious assault, aggravated burglary, grand theft, and vandalism); the
State agreed to dismiss the remaining counts and specifications. Transcript of
1 We note that appellate courts commonly “take judicial notice of publically accessible
online court dockets.” State v. Estridge, 2d Dist. Miami No. 2021-CA-25, 2022-Ohio-208, ¶ 12, fn. 1, citing State v. McClurg, 2d Dist. Darke No. 2019-CA-15, 2020-Ohio-1144, ¶ 8. See also State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, 874 N.E.2d 516, ¶ 8 and 10 (finding that a court can take judicial notice of appropriate matters, including judicial opinions and public records accessible from the internet). As a result, we may consult the Montgomery County Common Pleas Court records and the ODRC records, which are both public records and are readily accessible on the internet. -4-
Proceedings (Change of Plea Hearing) (“Plea Tr.”), 12-13. There was no agreement
regarding sentencing. Id. at 16. The trial court noted that if it chose to impose a prison
term, any prison term would run consecutively to Leach's sentence in Case No. 01157.
Id. at 17 and 20-22.
{¶ 7} During the plea hearing, the court ordered the defense to submit any brief
about sentencing and merger by three weeks before sentencing. The State would then
have a week to respond. Id. at 25. After the court explained Leach's rights, Leach pled
guilty, and the court found him guilty of the four counts. Id. at 40-41. The court then set
disposition for December 15, 2022.
{¶ 8} On November 21, 2022, Leach filed a sentencing memorandum, and the
State responded on November 29, 2022. The State attached the May 31, 2022
termination entry from Case No. 01157 to its memorandum as Ex. 2. In that entry, as
noted, the court had sentenced Leach to a 24-month prison term and had given him 34
days of jail-time credit.
{¶ 9} Ultimately, a sentencing hearing in the current case was held on February 8,
2023. However, during the hearing, the court said it needed more time to review the
sentencing memoranda. Plea Tr. at 45. The court also reopened the plea hearing to
correct a technical error, i.e., to inform Leach that he would be eligible for community
control. Id. at 45-46. Leach then affirmed that he wished to maintain his guilty pleas as
indicated in the November 9, 2022 plea colloquy. Id. at 46. The court filed an amended
judgment entry to that effect on February 8, 2023.
{¶ 10} During the May 31, 2023 sentencing hearing, the parties agreed that the -5-
sentence in the current case would run consecutively to the Montgomery County
sentence by operation of law. Transcript of Proceedings (Final Disposition Hearing)
(“Disp. Tr.”), 4. At that time, the court also found counts 4 and 5 were allied offenses
and merged them, and the State elected sentencing on count 4 (aggravated burglary).
Id. at 5. The court then sentenced Leach as follows: on count 2, an indefinite sentence
of a minimum of four years to a maximum of six years; on count 4, an indefinite sentence
of a minimum of four years to a maximum of six years; and on count six, a definite
sentence of six months. Id. at 6. The court imposed the term for count 2 concurrently
with the term for count 4, and imposed the definite term in count 6 consecutively, for an
aggregate minimum term of 4.5 years and a maximum term of 6.5 years. Id.
{¶ 11} The court further stated that Leach’s sentence would run consecutively to
the sentence from Montgomery County, Ohio. Id. at 7. In addition, the court said it
would credit Leach with 330 days of jail-time credit by operation of law. Id. However,
during the hearing, the State raised an issue about this. Id. at 11-13. After the court
discussed the matter with the attorneys, the following exchange occurred:
THE COURT: * * *
The prosecution pointed out that Defendant may or may not be
entitled to jail time credit. And I charge both defense counsel and
Prosecutor's Office to investigate that and we can certainly modify the entry
accordingly, if need be.
Does that satisfy the State in terms of ameliorating this?
MS. HENNE: Yes, Your Honor. -6-
THE COURT: The Defense?
MR. SWIFT: We would ask for all applicable jail time credit, Judge.
THE COURT: I understand but the manner in which we're going to
proceed.
MR. SWIFT: Right.
THE COURT: You accept that.
MR. SWIFT: Yeah.
THE COURT: Alright. Then, that concludes this matter. We're
adjourned.
Disp. Tr. at 14-15.
{¶ 12} On the same day, i.e., May 31, 2023, the court filed a judgment entry
imposing sentence as outlined during the sentencing hearing, including that the sentence
would be served consecutively to the sentence in Montgomery County, Ohio for failure to
comply. Judgment Entry (Sentencing) (May 31, 2023), p. 4-5. The court also credited
Leach with 303 days of jail-time as of the date of the entry plus future custody days while
Leach awaited transportation to the state institution. Id. at 5.
{¶ 13} On June 29, 2023, the State appealed from the Judgment Entry. Leach
did not appeal.
II. Jail Time Credit
{¶ 14} The State's sole assignment of error is as follows:
The Trial Court Erred in Awarding 303 days of jail-time credit. -7-
{¶ 15} The State contends the trial court should not have credited Leach with any
jail-time credit. The State's argument is based on two points: (1) if a defendant receives
consecutive sentences in multiple cases, he is entitled to jail time credit for only one case;
and (2) a defendant is not entitled to jail time credit while being held on bond if at the
same time, he is serving a sentence in an unrelated case. Appellant's Brief, p. 4.
{¶ 16} In response to the assignment of error, Leach argues first that because the
trial court did not hear the State's argument, the State is improperly attempting to have
our court consider the matter rather than letting the trial court resolve it. Leach also
claims the State improperly attached materials to its brief that were not before the trial
court.
{¶ 17} “In reviewing felony sentences ‘an appellate court may vacate or modify a
felony sentence on appeal only if it determines by clear and convincing evidence that the
record does not support the trial court's findings under relevant statutes or that the
sentence is otherwise contrary to law.’ ” State v. Six, 2d Dist. Clark No. 2023-CA-1,
2023-Ohio-2892, ¶ 19, quoting State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
59 N.E.3d 1231, ¶ 1. “Clear and convincing evidence is that measure or degree of proof
which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such
certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will
produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to
be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph
three of the syllabus.
{¶ 18} “The practice of awarding jail-time credit, although now covered by state -8-
statute, has its roots in the Equal Protection Clauses of the Ohio and United States
Constitutions. Recognizing that the Equal Protection Clause does not tolerate disparate
treatment of defendants based solely on their economic status, the United States
Supreme Court has repeatedly struck down rules and practices that discriminate against
defendants based solely on their inability to pay fines and fees.” State v. Fugate, 117
Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, ¶ 7, citing Griffin v. Illinois, 351 U.S. 12,
76 S.Ct. 585, 100 L.Ed. 891 (1956). (Other citation omitted.) “Relying on the principle
set forth in such cases, courts have held that defendants who are unable to afford bail
must be credited for the time they are confined while awaiting trial.” Id.
{¶ 19} In Ohio, provisions for jail-time credit are codified in R.C. 2967.191. This
statute provides, in pertinent part, that:
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 * * *.
R.C. 2967.191(A).
{¶ 20} R.C. 2929.19(B)(2)(a)-(g) also outlines certain duties trial courts must -9-
perform during sentencing hearings. As relevant here, the court is to "[d]etermine, notify
the offender of, and include in the sentencing entry the total number of days, including
the sentencing date but excluding conveyance time, that the offender has been confined
for any reason arising out of the offense for which the offender is being sentenced and by
which the department of rehabilitation and correction must reduce the definite prison term
imposed on the offender as the offender's stated prison term or, if the offense is an offense
for which a non-life felony indefinite prison term is imposed under division (A)(1)(a) or
(2)(a) of section 2929.14 of the Revised Code, the minimum and maximum prison terms
imposed on the offender as part of that non-life felony indefinite prison term, under section
2967.191 of the Revised Code. The court's calculation shall not include the number of
days, if any, that the offender served in the custody of the department of rehabilitation
and correction arising out of any prior offense for which the prisoner was convicted and
sentenced.” R.C. 2929.19(B)(2)(g)(i). This statute further provides that “[i]n making a
determination under division (B)(2)(g)(i) of this section, the court shall consider the
arguments of the parties and conduct a hearing if one is requested.” R.C.
2929.19(B)(2)(g)(ii).
{¶ 21} An administrative regulation further provides that sentencing courts are to
make a factual determination of the amount of time an offender has served locally before
being sentenced. See Ohio Adm.Code 5120-2-04(B). The ODRC then further reduces
the sentence by the days the offender is confined after sentencing before being
committed to the ODRC. Ohio Adm. Code 5120-2-04(A).
{¶ 22} “The well-established rule is that ‘jail time credit is not appropriate where -10-
the defendant was serving a sentence for a separate offense.’ ” State v. Taylor, 2d Dist.
Montgomery No. 29410, 2022-Ohio-4120, ¶ 11, citing State v. Breneman, 2d Dist.
Champaign No. 2015-CA-16, 2016-Ohio-597, ¶ 21. This is consistent with the plain
language of R.C. 2929.19(B)(2)(g)(i), as quoted above, and we have consistently followed
this rule. Id. Consequently, the trial court erred in granting Leach any jail-time credit for
time he served in prison on Case No. 01157, which was an unrelated case. See State
v. Cupp, 156 Ohio St.3d 207, 2018-Ohio-5211, 124 N.E.3d 811, syllabus (“[a] defendant
is not entitled to jail-time credit while held on bond if, at the same time, the defendant is
serving a sentence on an unrelated case”).
{¶ 23} Concerning the 54 days that Leach spent in jail before being conveyed to
the penitentiary, these days overlapped to a large extent with the time he spent in local
jail before being sent to prison on Case No. 01157. The issue here is whether he may
receive credit for any of this time (or in essence, receive double-credit).
{¶ 24} In Fugate, the Supreme Court of Ohio considered whether a defendant
should receive jail-time credit for time spent in jail on a revocation violation and on new
charges. In that situation, the trial court imposed concurrent prison terms but allowed
jail-time credit only toward the sentence on the revocation violation. Fugate, 117 Ohio
St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, at ¶ 3-4. The Supreme Court of Ohio held
this was incorrect, based on the directives in R.C. 2967.191 and Ohio Adm.Code 5120-
2-04(F) (now Ohio Adm.Code 5120-2-04(E), which contains the same language).
{¶ 25} The court remarked that “to satisfy this objective [complying with equal
protection requirements], when concurrent prison terms are imposed, courts do not have -11-
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.” Id. at ¶ 12.
{¶ 26} In contrast, where consecutive terms are imposed, “the terms of
imprisonment are served one after another. Jail-time credit applied to one prison term
gives full credit that is due, because the credit reduces the entire length of the prison
sentence.” Id. at ¶ 22. This is consistent with the fact that “ ‘ “[t]he 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.” ’ ” State v. Heys, 2020-Ohio-692, 152 N.E.3d 539, ¶ 13 (2d Dist.), quoting
State v. Ways, 2d Dist. Montgomery No. 25214, 2013-Ohio-293, ¶ 9.
{¶ 27} Furthermore, providing a double-credit for defendants who cannot post
bond would result “in equal protection violations for individuals who post bond on their
cases and are subsequently sentenced to consecutive sentences.” State v. Johnson,
11th Dist. Lake No. 2023-L-006, 2023-Ohio-4093, ¶ 74.
{¶ 28} Accordingly, we agree with the State that Leach was not entitled to have
any jail-time credit applied to his current sentences, which were to be served -12-
consecutively to the sentence in Case No. 01157. The trial court therefore erred in
awarding any credit.
{¶ 29} As a final matter, we disagree with Leach’s argument that the State
improperly attached records to its brief or tried to have us decide an issue that the trial
court should have first considered. It is true that “[a] reviewing court cannot add matter
to the record before it, which was not a part of the trial court's proceedings, and then
decide the appeal on the basis of the new matter.” State v. Ishmail, 54 Ohio St.2d 402,
377 N.E.2d 500 (1978), paragraph two of the syllabus. However, the documents the
State attached are all public and available online, and they are matters of which we can
take judicial notice. These are not factual matters added to the record as in Ishmail,
where the court of appeals considered the content of a transcript that the trial court did
not review in denying the defendant’s post-conviction appeal. Id. at 406. In contrast,
they are simply procedural matters about which there is no dispute.
{¶ 30} An exception is Ex. A, which is from JusticeWeb, a site that is not available
to the general public. See https://www.mcohio.org/967/JusticeWeb (accessed on
February 6, 2024). However, we did not consider that exhibit. The rest of the State’s
exhibits are from the Montgomery County Clerk of Court website and the ODRC website,
both of which we independently consulted.
{¶ 31} Notably, the trial court filed its judgment entry the day of the sentencing
hearing. The State, therefore, does not appear to have had an opportunity to resolve the
jail-credit issue. It is also not clear that the State had any avenue at that point other than
to appeal. R.C. 2929.19(B)(2)(g)(iii) does provide trial courts with jurisdiction to correct -13-
jail-time credit errors. However, this is limited to “any error not previously raised at
sentencing in making a determination under division (B)(2)(g)(i) of this section.”
Because the State did raise the potential error at sentencing, the trial court may not have
had jurisdiction to reconsider the point, despite its belief that it could change the jail-time
credit later.
{¶ 32} This subsection also provides that an “offender may, at any time after
sentencing, file a motion in the sentencing court to correct any error made in making a
determination under division (B)(2)(g)(i) of this section, and the court may in its discretion
grant or deny that motion.” However, Leach would not likely file a motion to correct an
error that benefitted him.
{¶ 33} The error in question also does not appear to simply be a clerical error,
which courts can correct at any time pursuant to Crim.R. 36. “Errors subject to correction
by the court include a clerical error, mistake, or omission that is mechanical in nature and
apparent on the record and does not involve a legal decision or judgment.” State v.
Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 18, citing State v. Miller,
127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 15 and Crim.R. 36. “Nunc pro
tunc entries are used to make the record reflect what the court actually decided and not
what the court might or should have decided or what the court intended to decide.” Id.
{¶ 34} Here, the trial court was quite emphatic about its legal judgment, i.e.,
granting the jail-time credit, and this is what it intended to do. Even if this were otherwise,
the State did not have to choose between appealing the order that was entered and filing
a motion to correct the record, since use of a nunc pro tunc entry might not have been -14-
found to be correct.
{¶ 35} Based on the preceding discussion, the State’s sole assignment of error is
sustained.
III. Conclusion
{¶ 36} The State’s assignment of error having been sustained, the judgment of the
trial court is reversed only as to the amount of jail-time credit. This matter will be
remanded for the trial court to file a new judgment entry omitting the jail-time credit and
to notify ODRC of the change.
EPLEY, P.J. and TUCKER, J., concur.