[Cite as State v. Cunningham,
2021-Ohio-1861.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
CASE NO. 9-20-45
PLAINTIFF-APPELLEE,
v.
LEXY CUNNINGHAM, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 20-CR-356
Judgment Affirmed
Date of Decision: June 1, 2021
APPEARANCES:
W. Joseph Edwards for Appellant
Nathan Heiser for Appellee
Case No. 9-20-45
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant Lexy R. L. Cunningham (“Cunningham”) appeals
the judgment of the Marion County Court of Common Pleas, alleging that the trial
court erred in the process of awarding her jail-time credit. For the reasons set forth
below, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} On April 2, 2020, Cunningham was placed under the supervision of the
Marion County Adult Probation Department as part of Case #19-CR-0307. PSI.
This supervision was set to expire on October 2, 2022. PSI. However, on
September 3, 2020, the police executed a search warrant of Cunningham’s
apartment. Doc. 11. During this search, the police discovered a firearm in the
apartment and pictures of Cunningham in possession of this firearm. Doc. 11. At
the time of the search, Cunningham was still subject to a weapons disability as part
of Case #19-CR-0307. Doc. 11.
{¶3} On September 16, 2020, Cunningham was indicted on one count of
having weapons while under disability in violation of R.C. 2923.13(A)(3), a felony
of the third degree. Doc. 1. This charge became the basis of Case #20-CR-0356.
Doc. 2. On November 10, 2020, Cunningham pled guilty to one count of attempting
to have weapons while under disability in violation of R.C. 2923.02(A), R.C.
2923.13(A)(3), a felony of the fourth degree. Doc. 15. The trial court then accepted
this plea of guilty. Doc. 17.
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{¶4} On November 23, 2020, the trial court held a probation violation
disposition for Case #19-CR-0307 and a sentencing hearing for Case #20-CR-0356.
Tr. 1, 9. Doc. 17. At this hearing, the following exchange occurred over the amount
of jail-time credit that Cunningham had accrued:
[Trial Court]: … [H]elp me out with jail time credit.
[Defense]: There’s 174 days as of and including today on [Case
#19-CR-0307].
[Trial Court]: 174?
[Defense]: Yes.
[Trial Court]: And does that mean that there are the same
number on [Case #20-CR-0356] or the PSI report is 68—
[Defense]: 68 days of the report—
[Trial Court]: Those 68 days are part of the 174?
[Defense]: Yes.
[Trial Court]: Very good. Parties agree?
[State]: Yes, Your Honor.
Tr. 3.1 The following exchange then occurred:
[Trial Court]: With regard to [Case #19-CR-0307], the Court is
gonna find 180 days of jail time credit and terminate the case as
1
The indictment that formed the basis of Case #20-CR-0356 was filed on September 16, 2017. Doc. 1.
Before this indictment, Cunningham had apparently accrued 106 days of jail-time credit in Case #19-CR-
0307. Tr. 3. After this indictment, Cunningham was in jail for another sixty-eight days in between September
17, 2020 and November 23, 2020. PSI. Thus, she apparently had a total of 174 days of jail-time credit by
the time of the sentencing hearing on November 23, 2020. Tr. 3. Since we do not have the record for Case
#19-CR-0307 before us, we do not know the timeframe in which Cunningham received the other 106 days
of jail-time credit in Case #19-CR-0307. However, the parties agreed on the total jail-time credit tabulation
of 174 days. Tr. 3.
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unsuccessful, imposing no additional fine or sanction. Due to the
credit for all jail time credit on the ’19 case [#19-CR-0307] the
Court is finding zero days of jail time credit apply on [Case #20-
CR-0356]. Counsel, have I neglected anything?
[Prosecution]: No, Your Honor.
[Trial Court]: Mr. Crawford?
[Defense]: I guess you’re—you’re saying there’s no jail time
credit on the ’20 case [#20-CR-0356]?
[Trial Court]: So the time that she spent in jail on the ’20 case
[#20-CR-0356] was between September 17th to today. So those 68
days, she was on a holder on the ’19 case [#19-CR-0307]. So I’ve
given her jail time credit on the ’19 case and I’m giving her double
jail time credit so she has zero days on … case [#20-CR-0356].
…
[Defense]: Okay, Your Honor. That’s fine.
Tr. 10-11. In Case #20-CR-0356, the trial court ordered Cunningham to serve a
seventeen-month prison sentence. Doc. 17. Tr. 11.
Assignment of Error
{¶5} The appellant filed her notice of appeal on December 11, 2020. Doc.
21. On appeal, Cunningham raises the following assignment of error:
Appellant believes the trial court erred in computing jail time
credit when it gave defendant-appellant credit for 180 days
towards probation violation rather than applying it to subsequent
case thereby violating her rights under the United States and Ohio
State Constitutions.
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Case No. 9-20-45
While Cunningham states, in her brief, that she “believes that the trial court
sentenced [her] … in accordance with Ohio law,” she also argues that “she should
have been awarded some amount of jail time credit.”2 Appellant’s Brief, 5.
Legal Standard
{¶6} “The practice of awarding jail time credit, although now covered by
state statute, has its roots in the Equal Protection Clauses of the Ohio and United
States Constitutions.” State v. Fugate, 117 Ohio St.3d 261,
2008-Ohio-856,
883
N.E.2d 440, ¶ 7. “The General Assembly provides for jail-time credit in R.C.
2967.191(A) for those sentenced to prison.” State v. Reed,
2020-Ohio-4255, ---
N.E.3d ---, ¶ 14. This provision reads, in its relevant part, as follows:
The department of rehabilitation and correction shall 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, 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, … and
confinement in a juvenile facility.
(Emphasis added.) R.C. 2967.191(A). While the wording of this provision is
directed at the Ohio Department of Rehabilitation and Correction, the trial court is
to determine “the number of days of confinement that a defendant is entitled to have
2
At the sentencing hearing, defense counsel did not raise an objection over the issue of jail-time credit and
even appeared to affirm the trial court’s determination on this matter. Tr. 10-11. The failure to raise an
objection before the trial court waives all but plain error on appeal. However, “[a] trial court’s failure to
properly calculate a felony offender’s jail-time credit … and to include the amount of jail-time credit in
the body of the offender’s sentencing judgment entry is plain error.” State v. Mills, 10th Dist. Franklin No.
09AP-198, 2009-Ohio-6273, ¶ 13. See State v. Curtis, 3d Dist. Allen No. 1-15-55,
2016-Ohio-6978, ¶ 84.
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Case No. 9-20-45
credited toward his sentence.” State ex rel. Rankin v. Ohio Adult Parole Auth., 98
Ohio St.3d 476,
2003-Ohio-2061,
786 N.E.2d 1286, ¶ 7.
{¶7} “Although the principle of crediting time served seems fairly simple on
its face, in practice, it can be complicated when … the defendant is charged with
multiple crimes committed at different times, or when the defendant is incarcerated
due to a probation violation.” State v. Chafin, 10th Dist. Franklin No. 06AP-1108,
2007-Ohio-1840, ¶ 9. In State v. Fugate, the Ohio Supreme Court held that
“defendants who are unable to afford bail must be credited for the time they are
confined while awaiting trial.” Fugate at ¶ 7.
When a defendant is sentenced to consecutive terms, 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. However,
when a defendant is sentenced to concurrent terms, credit must
be applied against all terms, because the sentences are served
simultaneously. If an offender is sentenced to concurrent terms,
applying credit to one term only would, in effect, negate the credit
for time that the offender has been held.
Fugate at ¶ 22. “The rule of Fugate, that [jail-time] … credit is to be applied to
all terms of incarceration, is limited to concurrent sentences.” State v. Tibbs, 12th
Dist. Butler No. CA2019-02-027, 2019-Ohio-4721, ¶ 12, citing Fugate at ¶ 12.
Further,
courts have recognized that Fugate is not applicable when the
trial court essentially sentences the defendant to ‘time served’ for
a community control violation but does not run the community
control violation concurrent with the sentence for the new crimes.
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Case No. 9-20-45
State v. Chasteen, 12th Dist. Butler No. CA2013-11-204, 2014-Ohio-3780, ¶ 15,
citing State v. Maddox, 8th Dist. Cuyahoga No. 99120,
2013-Ohio-3140, ¶ 49
(applying the reasoning relied upon in Chasteen but to the context of a probation
violation); Fugate at ¶ 12. Finally, “[i]t is appellant’s duty to show an error in the
jail-time credit calculation ….” State v. Reeves, 10th Dist. Franklin No. 09AP-
493,
2010-Ohio-4018, ¶ 33.
Legal Analysis
{¶8} In this situation, Cunningham had a total of 174 days of jail-time credit
at the time that she was sentenced. Tr. 3. At her sentencing hearing, the trial court
effectively ordered a 180 day sentence for Case #19-CR-0307 and a seventeen
month sentence for Case #20-CR-0356. The trial court then applied the entirety of
Cunningham’s accrued jail-time credit to the sentence for Case #19-CR-0307;
zeroed out the 180 day sentence for this case; and “terminated the case as
unsuccessful, imposing no additional fine or sanction.” Tr. 10-11.
{¶9} By applying the jail-time credit in this manner, the trial court essentially
treated Cunningham as though she had served her prison sentence for Case #19-CR-
0307 by the time of her sentencing hearing on November 23, 2020. State v.
Dobbins, 12th Dist. Butler No. CA2019-04-061, 2020-Ohio-726, ¶ 17. The trial
court then ordered a seventeen-month prison sentence for Case #20-CR-0356 that
was to be served in the seventeen months following her sentencing hearing on
November 23, 2020. Doc. 17.
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Case No. 9-20-45
{¶10} Thus, there are two relevant periods of confinement in this situation:
the 174 days Cunningham had served in jail before her sentencing hearing and the
seventeen months she was to ordered to serve in prison after her sentencing hearing.
Tr. 3, 10-11. The period of confinement before November 23, 2020 functioned as
the sentence for Case #19-CR-0307 while the period of confinement to come after
November 23, 2020 was to be the sentence for Case #20-CR-0356. In other words,
these two periods of confinement are not concurrent sentences. See Fugate, supra,
at ¶ 22;
Tibbs, supra, at ¶ 12.
{¶11} Other appellate districts have upheld this method of applying jail-time
credit as time served for a probation or community control violation. State v.
Williams, 8th Dist. Cuyahoga No. 104155, 2016-Ohio-8049, ¶ 19;
Maddox, supra,
at ¶ 49; State v. Allen,
2020-Ohio-5155,
162 N.E.3d 125, ¶ 45 (10th Dist.); State v.
Speakman, 10th Dist. Franklin Nos. 08AP-456, 08AP-457, 08AP-458, 2009-Ohio-
1184, ¶ 12; Dobbins at ¶ 22; State v. Wilson, 12th Dist. Butler No. CA2015-03-058,
2015-Ohio-4231, ¶ 18-20.
{¶12} In her brief, Cunningham argues “that she should have been awarded
some amount of jail time credit” in Case #20-CR-0356. Appellant’s Brief, 5.
However, the trial court applied all of the jail-time credit that Cunningham had
accrued by November 23, 2020 to the sentence in Case #19-CR-0307. Tr. 3, 10-11.
In fact, by zeroing out her sentence for Case #19-CR-0307, the trial court gave
Cunningham 180 days of jail-time credit, even though she had accrued only 174
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Case No. 9-20-45
days of jail-time credit. Tr. 3, 10-11. Thus, Cunningham received the benefit of six
additional days of jail-time credit in this situation.
{¶13} While Cunningham had spent sixty-eight days in jail after she was
indicted in Case #20-CR-0356, these days were included in the 174 days of jail-time
credit that were applied in Case #19-CR-0307. If these sixty-eight days were
applied to Cunningham’s seventeen month prison sentence in Case #20-CR-0356,
the trial court would have given her jail-time credit for the period in between
September 17, 2020 and November 23, 2020 two times. State v. Lemaster, 4th Dist.
Pickaway No. 01CA10, 2001 WL 1674108, *2 (Dec. 26, 2001).
{¶14} Further, while none of the jail-time credit that Cunningham had
accrued before her sentencing hearing was applied to the sentence imposed in Case
#20-CR-0356, the trial court did order that any jail-time credit that Cunningham
accrued after the date of sentencing be applied to her sentence in Case #20-CR-
0356. Doc. 17.
It is further ordered that the defendant be given credit for 0 days
of local jail that she was confined through the date of sentencing
for any reason arising out of this offense, plus any additional days
the defendant is confined between the date of sentencing and the
date committed to the Ohio Reformatory for Women.
(Emphasis added.) Doc. 17. Thus, the trial court ensured that Cunningham would
receive jail-time credit in Case #20-CR-0356 for any days she spent in jail beyond
the date of her sentencing hearing.
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Conclusion
{¶15} Having reviewed the materials in the record, we conclude that
Cunningham has not established that the trial court erred in applying Cunningham’s
jail-time credit in these cases. As such, her sole assignment of error is overruled.
Having found no error prejudicial to the appellant in the particulars assigned and
argued, the judgment of the Marion County Court of Common Pleas is affirmed.
Judgment Affirmed
ZIMMERMAN and SHAW, J.J., concur.
/hls
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