State v. Whitaker

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[Cite as State v. Whitaker, 2003-Ohio-3231.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 02CA2691 : v. : : DECISION AND JUDGMENT ENTRY RONALD WHITAKER, : : Defendant-Appellant. : Released 6/10/03 : ___________________________________________________________ APPEARANCES: Ronald A. Whitaker, Chillicothe, Ohio, pro se appellant. Scott W. Nusbaum, Ross County Prosecuting Attorney, Matthew S. Schmidt, Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee. ___________________________________________________________ Harsha, J. {¶1} Pleas Ronald Court s Whitaker decision appeals denying the his Ross motion County Common for jail-time credit after it imposed consecutive sentences. Whitaker contends he is entitled to multiple jail-time credit since he was held in custody, and ultimately sentenced, on three charges. In State v. Lemaster, Pickaway App. No. 01CA10, 2001-Ohio-2639, we rejected the argument that a defendant is entitled to multiply his period of pretrial confinement by the number of convictions entered against him when figuring credit for time served on multiple offenses. based our concluding decision that on an equal appellant's protection proposition We analysis, would result in different sentences for those defendants out on bail and those defendants who were not. decision, we reject In accordance with that Whitaker's argument and affirm the judgment of the trial court. {¶2} degree In May 2002, Whitaker pled guilty to three third felonies, Influence of 5411.19(A)(1) violation of i.e., Alcohol and R.C. two or counts one Drugs count 2931.331. of in Driving Under the violation of R.C. of Failure One month to later Comply the in trial court sentenced Whitaker to three years on each count, the sentences to run concurrently. At that time, the court gave Whitaker a jail-time credit of 104 days.1 2002, the trial court entered amending Whitaker s sentence. a nunc pro In August tunc entry In that entry, the court sentenced Whitaker to one year on each count, the sentences to run consecutively. Following that entry, Whitaker filed a motion with the court, asking that he be given jail-time credit for the 68 days served between the first and second 1 The parties briefs differ over the amount of jail-time credit Whitaker initially received. While Whitaker s brief indicates that he received 107 days of jail-time credit, the state s brief indicates the court gave Whitaker 104 days of jail-time credit. For purposes of this appeal, we will assume the court s entry provided for 104 days of jailtime credit. sentencing hearings. that motion. One In September 2002, the court granted month later, Whitaker filed a motion asking the court to multiply his jail-time credit by three since he had been held on three charges. The trial court denied his motion and Whitaker now appeals, raising the following assignment of error: "The trial court erred in refusing to grant jail-time credit aggregate pursuant to each of defendant-appellants convictions when his sentence was to run consecutively, pursuant to Ohio Revised Code Section 2967.191." {¶3} Whitaker contends the trial court erred in only granting him 172 days of jail-time credit. He argues that a credit of 172 days would have been appropriate had he been sentenced to concurrent sentences. However, Whitaker contends because the court imposed consecutive sentences, it should have granted him jail-time credit for each of the three offenses he was convicted of, for a total jail-time credit of 516 days. {¶4} R.C. 2967.191 requires the department of rehabilitation and correction to 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 * * *. prisoner court While it is the department s duty to credit a for that his pretrial calculates confinement, the number of it days is the the trial offender served prior to being sentenced. {¶5} In State v. Lemaster, Pickaway App. No. 01CA10, 2001-Ohio-2639, we rejected the argument that a defendant is entitled to multiple jail-time credit when he is held and sentenced on more than one offense. the issue of jail-time credit We recognized that involves two important constitutional protections the presumption of innocence and equal treatment under protection, we stated: the law. Regarding equal "Regardless of whether bond is set, made, or denied, the principle of equal protection requires that in the imposition of sentence all accused persons be treated equally. If after trial, a defendant is found guilty and sentenced, the sentence he serves must be equal to, and no more circumstances. than, any other defendant in similar Whether the defendant had the resources to make pretrial bond is irrelevant to sentencing. Simply put, there ought not to be one standard for people with money and [one for] people without money." Id. Adapting the analysis of Lemaster to the present case demonstrates how multiple jail-time equal protection. credit contravenes principles of The trial court s present order of 172 days jail- {¶6} time credit Having been sentences, preserves principles sentenced Whitaker to will of three serve equal protection. one-year consecutive three years pretrial and 2 years 193 days post trial. 172 days Now, consider a defendant identical to Whitaker, except that this defendant was able to make bail. When this defendant is sentenced, he too will serve three years, all post trial. {¶7} reveals A consideration of Whitaker s argument, however, how multiple jail-time principles of equal protection. to make Under bail will Whitaker s serve three argument, he credit does not serve The defendant who was able years would all post serve trial. 172 days pretrial, but because he did not make bail, his post trial time would be reduced by 344 days for a total post trial time of 1 year 214 days. Therefore, because we would be treating 172-day each day of his pretrial time as the equivalent of 3 days, Whitaker would, in fact, only serve a total of 2 years 21 days. As we stated in Lemaster: is not what is intended by [R.C. 2967.191]. equal protection for those too poor to This This is not make bail, but instead a preference for not making bail. {¶8} The purpose of R.C. 2967.191 is to avoid discrimination against poor defendants who are unable to make bail by giving awaiting trial. CO-66, them credit for time served while State v. Sullivan, Columbiana App. No. 01- 2002-Ohio-5225; State Greene App. No. 94-CA-91. v. Shade (Feb. 22, 1995), Under Whitaker s multiple jail- time credit argument, R.C. 2967.191 becomes a vehicle for discriminating against those defendants who do make bail. This is not the statute s intent. As stated in Lemaster, the principle of equal protection requires that in the imposition of sentences all accused persons be treated equally. Based on Pickaway App. No. Whitaker is {¶9} not our decision 01CA10, entitled to in State 2001-Ohio-2639, multiple v. Lemaster, we jail-time conclude credit. Accordingly, we affirm the judgment of the trial court. JUDGMENT AFFIRMED. JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution. IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Ohio Supreme Court an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Ohio Supreme Court in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Abele, J. & Kline, J.: Concur in Judgment and Opinion. For the Court BY: _______________________ William H. Harsha, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.

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