[Cite as State v. Palmer,
2025-Ohio-523.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. William B. Hoffman, P.J.
: Hon. Michael D. Hess, V.J.
Plaintiff-Appellee : Hon. Jason P. Smith, V.J.
:
-vs- : Judge Hess and Judge Smith
: Sitting by Assignment
: of the Supreme Court of Ohio
:
ROBERT G. PALMER :
: Case No. 2024 AP 06 0024
Defendant-Appellant :
:
: OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Tuscarawaras
Court of Common Pleas, Case No. 2023
CR 10 0336
JUDGMENT: Reversed in part, Remanded
DATE OF JUDGMENT ENTRY: February 13, 2025
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
FREDERIC SCOTT NICOLE R. STEPHEN
Assistant Prosecutor Public Defender
25 E. High Aveue 203 Fair Aveue N.E.
New Philadelphia, OH 44663 New Philadelphia, OH 44663
Tuscarawas County, Case No. 2024 AP 06 0024 2
Smith, V.J.
{¶1} Defendant-appellant Robert G. Palmer [“Palmer”] appeals from the May 20,
2024 Judgment Entry of the Tuscarawas County Court of Common Pleas sentencing him
for Aggravated Robbery and Theft, making the sentence concurrent to a sentence from
the Stark County Court of Common Pleas, and awarding him zero days of jail time credit.
{¶2} On appeal, Palmer argues that the trial judge did not award him jail time
credit for “the total number of days that [he] was confined for any reason arising out of the
offense for which [he] was convicted and sentenced” in contravention of R.C. 2967.191.
Facts and Procedural History
{¶3} Palmer was arrested in relation to Stark County Court of Common Pleas,
Case Number 2023CR1919 on August 11, 2023. Palmer was subsequently indicted on
October 5, 2023, for two counts of Robbery, felonies of the second degree and one count
of theft, a felony of the fifth degree.
{¶4} On October 20, 2023, Palmer, who was incarcerated in the Stark County
Jail, was indited in Tuscarawas County Court of Common Pleas, Case Number 2023 CR
10 0336 for one count of Aggravated Robbery, a felony of the first degree and one count
of Theft, a misdemeanor of the first degree. Palmer appeared via video and was
arraigned on November 15, 2023. See, Judgment Entry on Arraignment, Docket Entry
Number 16.
{¶5} Palmer was unable to post bond in either case and remained incarcerated
throughout the subsequent proceedings in each case.
{¶6} On February 22, 2024, Palmer pled guilty to the indictment in the Stark
County case. Relevant to this appeal, the trial judge sentenced Palmer to an indefinite
Tuscarawas County, Case No. 2024 AP 06 0024 3
term of six to nine years on each of the Robbery counts, and twelve months on the theft
charge. The sentences were ordered to run concurrently. The judge also granted Palmer
172 days of jail time credit. Palmer was admitted to the Lorain Correctional Institution
[“LCI”] on April 4, 2024. Transcript, Change of Plea and Sentencing Hearing Held May 6,
2024, Tuscarawas County Court of Common Pleas, Case Number 2023 CR 10 0336 at
8. [Hereinafter “Sent. T.”].
{¶7} On May 6, 2024, Palmer, after being transported to Tuscarawas County
from LCI, entered guilty pleas to one count of Aggravated Robbery, a felony of the first
degree and one count of Theft, a misdemeanor of the first degree. The trial judge
sentenced Palmer to an indefinite term of four to six years on the aggravated robbery
conviction and court costs on the misdemeanor theft conviction. The trial judge ordered
the sentences to run concurrent with Palmer’s sentence in the Stark County case. The
trial judge denied Palmer’s request for jail time credit.
Assignment of Error
{¶8} Palmer raises one Assignment of Error,
{¶9} “I. THE TRIAL COURT ERRED IN NOT GIVING APPELLANT JAIL TIME
CREDIT IN VIOLATION OF R.C. 2967.191 AND THE EQUAL PROTECTION CLAUSE
AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.”
Standard of Appellate Review
{¶10} “‘When a court’s judgment is based on an erroneous interpretation of the
law, an abuse-of-discretion standard is not appropriate. See, Swartzentruber v. Orrville
Grace Brethren Church, 163 Ohio App.3d 96,
2005-Ohio-4264,
836 N.E.2d 619, ¶ 6;
Tuscarawas County, Case No. 2024 AP 06 0024 4
Huntsman v. Aultman Hosp., 5th Dist. No. 2006 CA 00331,
2008-Ohio-2554,
2008 WL
2572598, ¶ 50.’ Med. Mut. of Ohio v. Schlotterer,
122 Ohio St.3d 181,
2009-Ohio-2496,
909 N.E.2d 1237, ¶ 13.” State v. Fugate,
2008-Ohio-856, ¶6.
{¶11} “[D]etermining whether an offender receives jail-time credit affects a
substantial right ... because receiving properly determined jail-time credit implicates an
offender’s liberty interest in being free from unauthorized incarceration ... and the right to
jail-time credit is protected by at least three statutory provisions.” State v. Thompson,
2016-Ohio-2769, ¶ 9; State v. Williams,
2024-Ohio-5578, ¶91 (5th Dist.); State v. Crossty,
2016-Ohio-3265, ¶ 11 (1st Dist.). R.C. 2967.191 requires that an offender’s prison term
be reduced “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 [.]” The
award of jail time credit and the number of days to be credited are not a matter of
discretion. The statute mandates the reduction, and sets forth how the number of days is
determined.
{¶12} Because the assignment of error involves the interpretation of a statute,
which is a question of law, we review the trial court’s decision de novo. Med. Mut. of Ohio
v. Schlotterer, 2009-Ohio-2496, ¶ 13; Accord, State v. Pariag,
2013-Ohio-4010, ¶ 9; Hurt
v. Liberty Township, Delaware County, OH,
2017-Ohio-7820, ¶ 31 (5th Dist.); State v.
Hammond,
2023-Ohio-3551(5th Dist.).
Issue for Appellate Review: Whether Palmer was entitled to jail time
credit on his Tuscarawas County case.
{¶13} With respect to jail-time credit, the Ohio Supreme Court has instructed
courts that,
Tuscarawas County, Case No. 2024 AP 06 0024 5
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.
…
“The Equal Protection Clause requires that all time spent in any jail
prior to trial and commitment by [a prisoner who is] unable to make bail
because of indigency must be credited to his sentence.” (Emphasis sic.)
Workman v. Cardwell (N.D. Ohio 1972), 338 F.Supp. 893, 901, vacated in
part on other grounds (C.A. 6, 1972), 471 F.2d 909. See also White v.
Gilligan (S.D. Ohio 1972), 351 F.Supp. 1012.
This principle is codified in Ohio at R.C. 2967.191, which states that
“[t]he 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 ….”
State v. Fugate, 2008-Ohio-856, ¶ 7-9.
{¶14} Although it is the department of rehabilitation and correction’s duty to reduce
the term of incarceration by the number of days served prior to sentencing, it is the
responsibility of the sentencing court to properly calculate the amount of days for which
such credit may be extended. State ex rel. Corder v. Wilson, 68 Ohio App.3d 567(10th
Dist. 1991); State v. Barkus,
2003-Ohio-1757 at ¶ 12 (5th Dist.); R.C. 2929.19(B)(2)(g)(i).
R.C. 2967.191 requires that an offender’s prison term be reduced “by the total number of
Tuscarawas County, Case No. 2024 AP 06 0024 6
days that the prisoner was confined for any reason arising out of the offense for which the
prisoner was convicted and sentenced [.]”
{¶15} R.C. 2949.12, which addresses the calculation of time, conveyance, and
incarceration assignments of convicted felons exclusively, is also applicable here. This
section states that the prisoner’s sentencing order should also reflect, “… pursuant to
section 2967.191 of the Revised Code … the total number of days, if any, that the felon
was confined for any reason prior to conviction and sentence.” (Emphasis added).
{¶16} A defendant is no longer required to contest a trial court’s calculation of his
jail-time credit in a direct appeal of his conviction; even if no appeal is pursued, the issue
can still be asserted in a post-judgment motion. State v. Smith, 2017-Ohio-4124, ¶ 11
(11th Dist.). Pursuant to R.C. 2929.19(B)(2)(g)(iii), an offender can file a motion to correct
an error in determining jail-time credit “at any time after sentencing” and the sentencing
court has authority to correct any error in determining jail-time credit that was “not
previously raised at sentencing.” State v. Thompson,
2016-Ohio-2769, ¶12; State v.
Inboden,
2014-Ohio-5762, ¶8 (10th Dist.).
{¶17} Jail-time credit is offense specific: It applies only to the sentence
corresponding to the offense for which the prisoner was confined before receiving that
sentence. State ex rel. Moody v. Director, Ohio Bureau of Sentence, 2024-Ohio-5231, ¶9.
In the case at bar, Palmer was held in the Tuscarawas County case beginning November
15, 2023 when he was brought before the court to be arraigned on the charges.
{¶18} R.C. 2967.191 mandates that Palmer receive credit for all the time he was
confined for any reason arising out of the Tuscarawas County offenses while awaiting
trial, and for confinement while awaiting transportation to the place where the prisoner is
Tuscarawas County, Case No. 2024 AP 06 0024 7
to serve the prisoner’s prison term. Relative to the case at bar, Palmer was being
confined while awaiting trial on both the Stark County and the Tuscarawas County cases
beginning November 15, 2023. However, while he was being held on the Tuscarawas
County charges, Palmer was sentenced by the Stark County Court of Common Pleas on
February 22, 2024.
{¶19} As the Supreme Court noted in Fugate, 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. 2008-Ohio-856, ¶12. “It is well settled that a ‘defendant may accrue jail time
credit in multiple cases at the same time, if he or she is held in pretrial confinement in
multiple cases simultaneously.’” State v. Steinmetz,
2020-Ohio-1145, ¶11 (2nd Dist.),
quoting State v. Breneman,
2016-Ohio-597, ¶26 (2nd Dist.). “Whether jail-time credit
accrues simultaneously when a defendant is in pretrial confinement on multiple cases
ordinarily depends on whether he receives concurrent or consecutive sentences.”
Steinmetz at ¶ 11. Where the sentences are to run concurrently, the defendant receives
jail-time credit in both cases; however, where the sentences are to run consecutively, the
defendant receives jail-time credit for only one such case. State v. Chambers, 2023-
Ohio-4859, ¶ 21(11th Dist.); State v. Richardson,
2021-Ohio-1342, ¶20 (6th Dist.).
{¶20} Unlike the defendant in State v. Cupp, 2018-Ohio-5211, Palmer was
incarcerated on the Tuscarawas County charges before he pled guilty and was sentenced
on the Stark County charges. Id. at ¶6; ¶20. Accordingly, Palmer was not serving a
sentence on an unrelated case. Thus, Palmer was entitled to jail time credit in the
Tuscarawas case in spite of the fact that he was also being held on the Stark County
charges.
Tuscarawas County, Case No. 2024 AP 06 0024 8
{¶21} However, once Palmer was sentenced to prison by the Stark County Court
of Common Pleas, Palmer was no longer being confined for any reason arising out of the
Tuscarawas County case. Even if Palmer had posted bond in Tuscarawas County after
February 22, 2024, he would remain incarcerated at LCI as a result of the Stark County
sentence. Thus, Palmer cannot receive jail time credit in the Tuscarawas case for any
time after he was sentenced on the Stark County charges.
{¶22} The state agrees that Palmer was entitled to jail time credit from November
15, 2023, the time that Palmer was arraigned on the Tuscarawas County charges, to
February 22, 2024, the date Palmer was sentenced on the Stark County charges, a total
of ninety-nine days. See, Appellee Brief at 8.
{¶23} Palmer’s First Assignment of Error is granted.
{¶24} The judgment of the Tuscarawas County Court of Common Pleas is
reversed, in part. Pursuant to Section 3(B)(2), Article IV of the Ohio Constitution, we
remand this case to the trial court with instructions to issue a nun pro tunc sentencing
entry granting Palmer ninety-nine days of jail time credit in the above-captioned case. The
decision of the Tuscarawas County Court of Common Pleas is affirmed in all other
respects.
By: Smith, V.J.,
Hoffman, P.J., and
Hess, V.J., concur
