State v. Daughenbaugh , 2009 Ohio 3823 ( 2009 )

[Cite as State v. Daughenbaugh, 2009-Ohio-3823.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
WYANDOT COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 16-09-05
v.
ROBERT DAUGHENBAUGH, OPINION
DEFENDANT-APPELLANT.
Appeal from Wyandot County Common Pleas Court
Trial Court No. 07 CR 23
Judgment Affirmed
Date of Decision: August 3, 2009
APPEARANCES:
Howard A. Elliott for Appellant
Douglas R. Rowland for Appellee
Case No. 16-09-05
ROGERS, J.
{¶1} Defendant-Appellant, Robert Daughenbaugh, appeals the judgment
of the Wyandot County Court of Common Pleas revoking his judicial release and
reimposing his prison term without granting jail-time credit for time served for a
prior revocation of judicial release and reincarceration in two other counties on
unrelated offenses. On appeal, Daughenbaugh argues that the trial court denied
him equal protection of the law by failing to afford him jail-time credit against his
sentence for time served upon his reincarceration in other counties where the
prison sentence originally imposed by those other counties was ordered to be
served concurrently with the sentence imposed in this case. Daughenbaugh also
argues that he was denied effective assistance of counsel when his trial counsel
failed to provide the trial court with judgment entries of his convictions in other
counties evidencing that his sentences in those counties were to be served
concurrently to the sentence imposed in this case. Based on the following, we
affirm the judgment of the trial court.
{¶2} In March 2007, Daughenbaugh was indicted by the Wyandot County
Grand Jury on one count of breaking and entering in violation of R.C. 2911.13(A),
a felony of the fifth degree, and one count of vandalism in violation of R.C.
2909.05(B)(1)(a), a felony of the fifth degree.
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{¶3} In May 2007, Daughenbaugh entered a guilty plea to both counts of
the indictment, and, in June 2007, the matter proceeded to sentencing, at which the
trial court imposed two consecutive eleven-month prison terms, for a total prison
term of twenty-two months. Subsequently, Daughenbaugh filed a notice of
appeal.
{¶4} In July 2007, Daughenbaugh was also sentenced for unrelated
offenses by the Seneca County Court of Common Pleas to a nine-month prison
term, to be served concurrently to the prison term imposed in Wyandot County.
{¶5} In September 2007, the Hancock County Court of Common Pleas
sentenced Daughenbaugh to a seven-month prison term on offenses unrelated to
the proceedings in Wyandot and Seneca Counties, to be served concurrently to the
prison terms imposed in those counties.
{¶6} In October 2007, this court affirmed Daughenbaugh’s conviction and
sentence in Wyandot County in State v. Daughenbaugh, 3d Dist. No. 16-07-07,
2007-Ohio-5774.
{¶7} In November 2007, Daughenbaugh filed a motion for judicial release
in Wyandot County, and, in January 2008, the trial court granted his motion,
suspended his sentence, and ordered three years supervision.
{¶8} Shortly thereafter, Daughenbaugh also filed motions for judicial
release in both the Hancock County and Seneca County Courts of Common Pleas,
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which were also granted, with Hancock County imposing a five-year term of
supervision.
{¶9} Subsequently, Daughenbaugh filed a pro se motion to revoke his
judicial release in Hancock County, asserting that he wished to serve his
remaining prison term rather than serve a five-year term of supervision, and the
trial court granted the motion, reimposing the remainder of Daughenbaugh’s
prison sentence.1
{¶10} In June 2008, the Wyandot County Court of Common Pleas filed an
entry purportedly suspending Daughenbaugh’s supervision under judicial release
from May 5, 2008, until July 20, 2008, the scheduled dates that Daughenbaugh
was to serve his prison sentence for Hancock and Seneca Counties.
{¶11} In September 2008, following Daughenbaugh’s release from prison,
the State filed a motion to show cause in Wyandot County, alleging that
Daughenbaugh violated the terms of his supervision when he possessed a motor
vehicle not belonging to him, failed to report to his supervising officer, failed to
notify his supervising officer of his felony arrest, and failed to make his required
restitution payments.
1
We note that Daughenbaugh has only provided this Court with the record for his Wyandot County case.
Accordingly, we are unable to determine whether Daughenbaugh also filed a motion to revoke judicial
release in Seneca County. However, Daughenbaugh has attached to his brief an entry from the Seneca
County Court of Common Pleas indicating that he served the remainder of the prison term imposed by that
court. Thus, Seneca County may have also reimposed his prison term around the same time as Hancock
County.
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Case No. 16-09-05
{¶12} In December 2008, the trial court held a hearing on the State’s
motion to show cause, with the court continuing Daughenbaugh’s supervision with
all previously imposed terms and orders, imposing an additional one hundred
hours of community service, and requiring him to pay a minimum of $5 per week
towards his previously imposed financial sanctions.
{¶13} Immediately following the hearing, Daughenbaugh was administered
and failed a drug test imposed as a condition of his supervision, and the State
subsequently filed a second motion to show cause, requesting that the trial court
revoke or modify his judicial release due to this positive drug test.
{¶14} In February 2009, the trial court held a hearing on the State’s
December 2008 motion to show cause, at which the following discussion took
place between Daughenbaugh’s trial counsel and the State:
[Daughenbaugh’s trial counsel] The one thing my client has
asked me to, uhm, ask of this Court is that appropriate jail days
credit be given. He has asked, request the Court that the Court
give credit for the 78 days in which his supervision was
suspended while he was serving time out of his Hancock County
case.
***
[State] We are against and opposed to the defendant being
granted any time for credit that he served in his Hancock
County case. Uhm, it was time that stemmed from the offense
that occurred in Hancock County. It was the defendant’s own
choice to go back and serve that time in Hancock County, which
was approximately 78 days, rather than remain on supervision
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Case No. 16-09-05
with Hancock County because he didn’t like the rules of
supervision.
Uhm, with respect to the Seneca County time, again, there was
another jurisdiction that he was sitting [sic] time specifically for
that case in Seneca County.
(Feb. 2009 Revocation of Judicial Release Hearing tr., pp. 31-33). Subsequently,
the trial court revoked its prior order of judicial release and reimposed
Daughenbaugh’s two consecutive eleven-month prison terms, granting 211 days
jail-time credit for the time served prior to his judicial release, and granting no
jail-time credit for the time served upon his reincarceration in Hancock and Seneca
Counties.
{¶15} It is from this judgment that Daughenbaugh appeals, presenting the
following assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT DENIED THE APPELLANT EQUAL
PROTECTION BY FAILING TO AFFORD HIM JAIL-TIME
CREDIT AGAINST HIS SENTENCE WITH RESPECT TO
PERIODS OF INCARCERATION ARISING OUT OF TIME
SERVED IN SENTENCES IN OTHER CASES WHEN THOSE
CASES WERE ORDERED TO BE SERVED
CONCURRENTLY WITH PROCEEDINGS BEFORE THE
TRIAL COURT.
Assignment of Error No. II
THE APPELLANT WAS RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL BY NOT PROPERLY
PRESENTING TO THE TRIAL COURT, JUDGMENT
ENTRIES AND OTHER RELATED DOCUMENTS SETTING
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Case No. 16-09-05
FORTH THAT TWO OTHER OHIO COMMON PLEAS
COURTS HAD ENTERED CONVICTIONS AGAINST THE
APPELLANT AND ORDERED A TERM OF
INCARCERATION IN THOSE CASES SERVED
CONCURRENTLY WITH THE TERM OF
INCARCERATION BEFORE THE TRIAL COURT. [SIC]
WHICH ENTITLED THE APPELLANT [SIC] CREDIT FOR
TIME SERVED PURSUANT TO OHIO REVISED CODE
§2967.191 IN THE MATTER BEFORE THE TRIAL COURT
AS TO PERIODS OF INCARCERATION ARISING OUT OF
THE OTHER TWO CONVICTIONS.
Assignment of Error No. I
{¶16} In his first assignment of error, Daughenbaugh argues that the trial
court denied him equal protection of the law under the Fourteenth Amendment to
the United States Constitution when it failed to grant him jail-time credit for all his
periods of incarceration. Specifically, he contends that jail-time credit should
have been applied to his Wyandot County sentence for time served upon his
reincarceration in Hancock and Seneca Counties because those counties ordered
his original sentences to be served concurrently with his sentence in Wyandot
County. We disagree.
{¶17} “The Adult Parole Authority has the duty to grant jail time credit,
however, ‘the trial court has the duty to properly calculate the number of days to
be credited.’” State v. Pitts, 3d Dist. No. 1-06-106, 2007-Ohio-5197, ¶15, quoting
State v. Eaton, 3d Dist. No. 14-04-53, 2005-Ohio-3238, ¶9. See, also, State v.
Fair, 136 Ohio App.3d 184, 188, 2000-Ohio-1614.
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Case No. 16-09-05
{¶18} R.C. 2967.191 governs a defendant’s entitlement to jail-time credit,
and provides, in pertinent part:
The department of rehabilitation and correction shall reduce the
stated prison term of a prisoner or, if the prisoner is serving a
term for which there is parole eligibility, the minimum and
maximum term or the parole eligibility date of the 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 * * *.
Accordingly, pursuant to R.C. 2967.191, a defendant is only entitled to jail-time
credit for confinement that is related to the offense for which he is being
sentenced. Pitts, 2007-Ohio-5197, at ¶16; State v. Brooks, 9th Dist. No.
05CA008786, 2006-Ohio-1485, ¶6. “A defendant is not entitled to jail time credit
under R.C. 2967.191 for any period of incarceration that arises from facts separate
and apart from those on which the current sentence is based.” State v. Lynn, 3d
Dist. No. 15-06-16, 2007-Ohio-3344, ¶8, citing State v. Logan (1991), 71 Ohio
App.3d 292, 300.
{¶19} Furthermore, this Court has previously found in State v. Eaton, 3d
Dist. No. 14-04-53, 2005-Ohio-3238, ¶¶10-11, that a defendant is not entitled to
jail-time credit for time incarcerated in another county for unrelated offenses. See,
also, State v. McWilliams (1998), 126 Ohio App.3d 398, 401; State ex rel. Moss v.
Subora (1987), 29 Ohio St.3d 66.
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{¶20} In the case sub judice, Daughenbaugh was serving three separate
sentences for unrelated offenses that occurred in three separate counties. The
sentences imposed by Hancock and Seneca Counties were ordered to be served
concurrently with the sentence in Wyandot County; however, Hancock and Seneca
Counties’ imposition of their sentences concurrent with Wyandot County’s
sentence in no way altered Wyandot County’s sentence. Hancock and Seneca
Counties could not also require Wyandot County to impose its sentence concurrent
with the sentences in those counties. Accordingly, when Daughenbaugh was
granted judicial release by all three counties, and then subsequently chose to return
to prison and serve the remainder of his sentences in Hancock and Seneca
Counties, Wyandot County’s sentence was not also running, as it had not
reimposed its sentence, and its sentence was not concurrent to Hancock and
Seneca Counties. Consequently, the trial court was not obligated to grant
Daughenbaugh jail-time credit for his time served while reincarcerated on the
Hancock and Seneca County cases.
{¶21} Furthermore, not granting Daughenbaugh jail-time credit for his
Hancock and Seneca County reincarceration is consistent with the this Court’s
prior findings on jail-time credit and a defendant’s entitlement to jail-time credit
pursuant to R.C. 2967.191. As we have previously found, a defendant is not
entitled to jail-time credit for time incarcerated in another county for unrelated
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offenses, and, additionally, R.C. 2967.191 only entitles a defendant to jail-time
credit for confinement “arising out of the offense for which [he] was convicted
and sentenced.” Here, Daughenbaugh was only reincarcerated on the Hancock
and Seneca County cases, not the Wyandot county case, thereby precluding his
entitlement to jail-time credit in Wyandot County for the reincarceration.
{¶22} Daughenbaugh argues that a defendant’s entitlement to jail-time
credit is unqualified when sentences are ordered to be served concurrently. In
support of his proposition, he cites to the syllabus in State v. Fugate, 117 Ohio
St.3d 261, 2008-Ohio-256, which states that “[w]hen 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.” However, Fugate
is clearly distinguishable from the case at bar.
{¶23} In Fugate, the defendant was on community control for a prior
conviction of receiving stolen property, and was subsequently arrested on charges
of burglary and theft, for which he was later convicted and also found to have
violated the terms of community control. The trial court imposed a two-year
prison term for his burglary and theft convictions, and a concurrent twelve-month
prison term for his community control violation, but only granted him jail-time
credit for his community control violation sentence, despite the fact that he had
been held after his arrest on both the community control violation and the burglary
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Case No. 16-09-05
and theft offenses at the same time, with both offenses arising out of the same
county. On appeal, the Supreme Court of Ohio found that the defendant was
entitled to jail-time credit for both the community control violation sentence and
the sentence for his burglary and theft convictions, as the prison terms were
ordered to be served concurrently, and he was confined on both the community
control offense and the burglary and theft offenses.
{¶24} Here, unlike the defendant in Fugate, Daughenbaugh was serving
prison time on sentences from multiple jurisdictions, and he was reincarcerated
only on the Hancock and Seneca County offenses, not Wyandot County.
Therefore, we find Fugate to be inapposite and to not entitle Daughenbaugh to
jail-time credit in Wyandot County for his reincarceration.
{¶25} Consequently, we find that the trial court did not err in failing to
grant Daughenbaugh jail-time credit for time served after his reincarceration on
his sentences in Hancock and Seneca Counties, and we find that the trial court was
correct in only granting Daughenbaugh 211 days of jail-time credit.
{¶26} Accordingly, we overrule Daughenbaugh’s first assignment of error.
Assignment of Error No. II
{¶27} In his second assignment of error, Daughenbaugh argues that he was
denied effective assistance of counsel. Specifically, he asserts that his trial
counsel’s failure to provide the trial court with the sentencing entries in Hancock
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and Seneca Counties indicating that his sentences in those cases were ordered to
be served concurrently to his sentence in Wyandot County resulted in the trial
court’s failure to appropriately apply jail-time credit to his sentence.
{¶28} An ineffective assistance of counsel claim requires proof that trial
counsel’s performance fell below objective standards of reasonable representation
and that the defendant was prejudiced as a result. State v. Bradley (1989), 42 Ohio
St.3d 136, paragraph two of syllabus. To show that a defendant has been
prejudiced by counsel’s deficient performance, the defendant must prove that there
exists a reasonable probability that, but for counsel’s errors, the outcome at trial
would have been different. Id. at paragraph three of syllabus. “Reasonable
probability” is a probability sufficient to undermine confidence in the outcome of
the trial. State v. Waddy (1992), 63 Ohio St.3d 424, 433, superseded by
constitutional amendment on other grounds as recognized by State v. Smith, 80
Ohio St.3d 89, 103, 1997-Ohio-355.
{¶29} Furthermore, the court must look to the totality of the circumstances
and not isolated instances of an allegedly deficient performance. State v. Malone,
2d Dist. No. 10564, 1989 WL 150798. “Ineffective assistance does not exist
merely because counsel failed ‘to recognize the factual or legal basis for a claim,
or failed to raise the claim despite recognizing it.’” Id., quoting Smith v. Murray
(1986), 477 U.S. 527, 535.
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{¶30} Here, we have found that Daughenbaugh was not entitled to jail-time
credit on the reimposition of his sentence in Wyandot County for the time he
served in Hancock and Seneca Counties following his reincarceration.
Consequently, Daughenbaugh’s trial counsel’s performance was not deficient for
failing to provide the trial court with the sentencing entries from Hancock and
Seneca Counties, and no prejudice resulted.
{¶31} Accordingly, we overrule Daughenbaugh’s second assignment of
error.
{¶32} Having found no error prejudicial to the appellant herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and SHAW, J.J., concur.
/jnc
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