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State of Ohio v. Matthew Wyburn

October 14, 2011

STATE OF OHIO APPELLEE
v.
MATTHEW WYBURN APPELLANT



Trial Court No. CR0200601137

The opinion of the court was delivered by: Yarbrough, J.

Cite as State v. Wyburn,

DECISION AND JUDGMENT

{¶1} Defendant-appellant, Matthew Wyburn, appeals from the denial of his pro se motion for jail-time credit entered by the Lucas County Court of Common Pleas on September 13, 2010. We affirm.

{¶2} The pertinent facts are not in dispute. In May 2005, Wyburn was indicted on one count of breaking and entering, a fifth degree felony in violation of R.C. 2911.13(A) (case No. CR0200502084). In August 2005, he pled no contest to that charge, was convicted and sentenced to three years of community control. The sentencing court directed that Wyburn would serve the first four months at the Correctional Treatment Facility and, following his release there, the next two months in the Lucas County work-release program. The court informed Wyburn that any violation of the terms of his community control would lead to more restrictive sanctions, including a 12-month prison term.

{¶3} On January 10, 2006, Wyburn was arrested for escape, a third degree felony, in connection with his failure to return from work-release. He was indicted ten days later (case No. CR0200601137). On March 7, 2006, he pled no contest to this charge, was convicted and then sentenced to four years of community control, the first thirty days to be served at the Corrections Center of Northwest Ohio. The sentencing court's entry specified that the community control imposed in the escape case "shall be served concurrently with the community control imposed and continued at [sic] CR200502084," the earlier breaking and entering case. The court again notified Wyburn that violating his community control would entail harsher sanctions, "including a prison term of four (4) years."

{¶4} On May 16, 2007, at a community control violation hearing, Wyburn admitted to a new violation in the escape case. The trial court then revoked his community control in that case and in the earlier breaking and entering case. On the escape conviction the court imposed the four-year prison term, "to be served concurrent to sentence imposed in CR-05-2084 [the breaking and entering conviction] for a total incarceration period of 4 (four) years." It granted 73 days of jail-time credit on the escape conviction. On the same date, in the sentencing entry on the breaking and entering conviction, the court imposed an 11-month prison term "to be served concurrent to sentence imposed in CR-06-1137." The court's entry credited Wyburn with the 277 days he was held in jail on that offense. Both entries also stipulated that he receive credit for any "future custody days while [awaiting] transportation" to prison.

{¶5} On June 8, 2010, Wyburn filed a motion in the trial court "pursuant to Ohio Criminal Rule 36 to correct the clerical error in the record," claiming entitlement to an alleged credit of "204" custody days on the escape conviction. The court later denied this motion. In this appeal Wyburn assigns the following error:

{¶6} "The trial court committed prejudicial error by failing to give him [sic] appropriate credit for time served in relation to two concurrent sentences."

{¶7} Wyburn now argues that the sentencing court erred in failing to credit him with "273" days on both of the underlying convictions.*fn1 In support of this argument, he relies on the Ohio Supreme Court's holding in State v. Fugate, 117 Ohio St.3d 261, 2008- Ohio-856. In Fugate, the parties agreed that the defendant had been held simultaneously on the three charges involved, two of which were new offenses committed while he was on community control. Following Fugate's conviction on the new offenses, he was sentenced to prison terms that were concurrent with the time imposed for the community control violation, but the trial court applied a jail-time credit only to the latter violation. Id. at ¶ 2-5. Citing R.C. 2967.191, the Supreme Court ruled that "defendants who are sentenced to concurrent prison terms are entitled to have jail-time credit applied toward all prison terms for charges on which they were held." Id. at ¶ 1.

{¶8} R.C. 2967.191 states, in relevant part:

{¶9} "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, including confinement in lieu of bail while awaiting trial, * * *." (Emphasis added.)

{¶10} This statute "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 * * * 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." Fugate at ¶ 12. (Emphasis added.) In other words, a defendant is entitled to jail-time credit only for confinement that is related to the offense for which he is being sentenced. State v. Dailey, 3d Dist. No. 8-10-01, 2010-Ohio-4816, ¶ 25; State v. Mitchell, 6th Dist. L-05-1122, 2005-Ohio-6138, ¶ 8.

{ΒΆ11} The Fugate Court also identified Ohio Adm.Code 5120-2-04(F) as bearing on a prisoner's entitlement to ...


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