[Cite as State v. Travis,
2023-Ohio-33.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Earle E. Wise, Jr., P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. John W. Wise, J.
-vs- :
:
JEFFERY H. TRAVIS, II : Case No. 2022 AP 08 0026
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2019 CR 080376
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 6, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KRISTINE W. BEARD JEFFERY H. TRAVIS, II, PRO SE
125 East High Avenue No. A770-273
New Philadelphia, OH 44663 Grafton Correctional Institution
2500 South Avon Belden Road
Grafton, OH 44044
Tuscarawas County, Case No. 2022 AP 08 0026 2
Wise, Earle, P.J.
{¶ 1} Defendant-Appellant, Jeffery H. Travis, II, appeals the August 2, 2022
judgment entry of the Court of Common Pleas of Tuscarawas County, Ohio, denying his
motion to correct jail time credit. Plaintiff-Appellee is state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On August 30, 2019, the Tuscarawas County Grand Jury indicted appellant
on one count of aggravated robbery in violation of R.C. 2911.01. Appellant was arraigned
on October 2, 2019. A transport was necessary because on said date, appellant was
incarcerated in the Stark County Jail on unrelated charges. Appellant pled not guilty and
was given a personal recognizance bond. He was discharged from the Tuscarawas
County Jail and remanded back to the Stark County Jail.
{¶ 3} On March 4, 2020, appellant pled no contest to the charge. At the time of
his plea, appellant was incarcerated in the Grafton Correctional Institution after being
convicted of the unrelated Stark County charges. By judgment entry filed March 5, 2020,
the trial court found appellant guilty, and sentenced him to four to six years in prison, to
be served concurrently to the sentence out of Stark County. Appellant received two days
of jail time credit.
{¶ 4} On December 22, 2020, appellant filed a motion for additional jail time
credit. In an attached letter, appellant argued he was entitled to 118 days of jail time
credit for being incarcerated during the pendency of the Tuscarawas case, although his
incarceration was due to the unrelated Stark County charges. By judgment entry filed
February 10, 2021, the trial court denied the motion.
Tuscarawas County, Case No. 2022 AP 08 0026 3
{¶ 5} On July 20, 2022, appellant filed a motion to correct jail time credit
calculation. Appellant argued Stark County correctly calculated his jail time credit and
that credit should be applied to his concurrent sentence out of Tuscarawas County. By
judgment entry filed August 2, 2022, the trial court denied the motion.
{¶ 6} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 7} "THE TRIAL COURT ERRED AS A MATTER OF LAW IN REFUSING TO
PROPERLY CALCULATE JAIL-TIME CREDIT FOR A CONCURRENT SENTENCE, IN
VIOLATION OF BOTH DOUBLE JEOPARDY PROTECTIONS AND EQUAL
PROTECTION OF THE LAW."
I
{¶ 8} In his sole assignment of error, appellant claims the trial court erred in
refusing to properly calculate his jail time credit for concurrent sentences. We disagree.
{¶ 9} The denial of a motion for jail time credit is reviewed under an abuse of
discretion standard. State v. Boyle, 5th Dist. Richland No. 22CA19, 2022-Ohio-3417, ¶
15, citing State v. Ragland, 2d Dist. Champaign No. 2018-CA-11,
2018-Ohio-3292. In
order to find an abuse of discretion, we must determine the trial court's decision was
unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.
Blakemore v. Blakemore,
5 Ohio St.3d 217,
450 N.E.2d 1140 (1983).
{¶ 10} R.C. 2967.191 governs credit for confinement awaiting trial and
commitment. Subsection (A) states in part:
Tuscarawas County, Case No. 2022 AP 08 0026 4
"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, … [and] 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) of section
2929.19 of the Revised Code ….
{¶ 11} Appellant asserts he has been continually incarcerated since August 23,
2019 (when he was arrested on the Stark County charges), and because he received a
four year sentence, his release date should be August 23, 2023. He states because the
trial court refused to correct his jail time credit, his release date is March 6, 2024,
constituting a sentence of four years and six months. Appellant argues jail time credit for
one offense must be applied to all offenses imposed concurrently, and the trial court's
error requires him "to serve multiple days of imprisonment for the same offense."
Appellant's Brief at 4.
{¶ 12} In support of his arguments, appellant cites the case of State v. Fugate, 117
Ohio St.3d 261,
2008-Ohio-856,
883 N.E.2d 440. In Fugate, the Supreme Court of Ohio
held at syllabus: "When 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." The Fugate court explained at ¶ 11:
Tuscarawas County, Case No. 2022 AP 08 0026 5
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.
{¶ 13} In Fugate, the concurrent sentences were imposed at the same time for
multiple offenses, one a community control revocation and the other for a conviction
following a jury trial. The trial court had given jail time credit to the sentence for the
revocation, but did not give any to the other sentence. Fugate is distinguishable from this
case. The Stark County sentence was imposed in a different county, on unrelated
charges, prior to the sentence in this case.
{¶ 14} In State v. Marini, 5th Dist. Tuscarawas No. 09-CA-6, 2009-Ohio-4633, ¶
23, this court stated:
When different courts impose sentences at separate times, the
sentences at best are only partly concurrent, and there is no requirement
Tuscarawas County, Case No. 2022 AP 08 0026 6
that courts arrange their cases in such a way as to maximize concurrency.
State v. Carter, 2nd Dist. No. 1580, 2002-Ohio-6387, ¶¶ 8-10. It is one thing
to hold, such as the Supreme Court did in State v. Fugate, 117 Ohio St.3d
261,
883 N.E.2d 440,
2008-Ohio-856 that jail time credit earned in two
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.
{¶ 15} In State v. Smith, 71 Ohio App.3d 302, 304,
593 N.E.2d 402 (10th
Dist.1992), citing State v. Dawn,
45 Ohio App.2d 43,
340 N.E.2d 421 (1975), our
colleagues from the Tenth District stated:
R.C. 2967.191 requires that jail credit be given only for the time the prisoner
was confined for any reason arising out of the offense for which he was
convicted and sentenced. It does not entitle a defendant to jail-time credit
for any period of incarceration which arose from facts which are separate
and apart from those on which his current sentence is based.
{¶ 16} Appellant's incarceration on the Stark County charges does not apply to the
unrelated charge out of Tuscarawas County, despite the fact that the Tuscarawas County
sentence was ordered to be served concurrently. Jail time credit is given for the time a
defendant remains in jail on the related charge. In the Tuscarawas County case,
Tuscarawas County, Case No. 2022 AP 08 0026 7
appellant was given a personal recognizance bond and "released." However, because
of his Stark County charges, he remained in jail on those charges. Appellant cannot
receive jail time credit on his Tuscarawas County charge from his Stark County
incarceration. We do not find any violations of the double jeopardy and/or equal
protection doctrines.
{¶ 17} Upon review, we find the trial court did not abuse its discretion in denying
appellant's motion to correct jail time credit calculation.
{¶ 18} The sole assignment of error is denied.
{¶ 19} The judgment of the Court of Common Pleas of Tuscarawas County, Ohio
is hereby affirmed.
By Wise, Earle, P.J.
Hoffman, J. and
Wise, John, J. concur.
EEW/db
