Court of Appeals of Ohio, First District, Hamilton
Hamilton County Court of Common Pleas Trial No. B-1604243
Appealed From Is: Reversed and Cause Remanded
T. Deters, Hamilton County Prosecuting Attorney, and Paula E.
Adams, Assistant Prosecuting Attorney, for
of the Ohio Public Defender and Timothy B. Hackett, Assistant
State Public Defender, for Defendant-Appellant.
Following a guilty plea, defendant-appellant Thomas Carberry
was convicted of one count of gross imposition
("GSI") under former R.C. 2907.05(A)(4). He was
sentenced to 30 months in prison. At that time, both the
state and Carberry agreed that he was entitled to 175 days of
jail-time credit, and the trial court awarded him that
Carberry appealed that conviction. He contended that he was
entitled to 354 days of credit, although he had agreed with
the 175 day figure at the time. The state agreed that
Carberry was not given the proper amount of jail-time credit,
but it contended that he was only entitled to an additional
13 days of credit, for a total of 188 days. In State v.
Carberry, 1st Dist. Hamilton No. C-170095,
2018-Ohio-1060, we affirmed his conviction in most respects.
But, because the parties agreed that the award of 175 days of
credit was incorrect, we remanded the case for the trial
court to determine the proper amount of jail-time credit.
Id. at ¶ 17-20.
On remand, the trial court awarded Carberry 188 days of
credit, and he has appealed from the trial court's
judgment. In his sole assignment of error, Carberry contends
that the trial court erred when it granted him only 13
additional days of jail-time credit. He argues that he is
entitled to credit for time that he spent in juvenile
commitment before he was bound over to the common pleas
court. Therefore, he contends, he was entitled to 354 days of
credit. This assignment of error has merit, but we do not
agree that he was entitled to credit for the entire period of
First, we note that it does not matter that Carberry
originally agreed to 175 days credit. This court has stated
that a trial court commits plain error when it fails to
include the appropriate amount of jail-time credit in the
sentencing entry. State v. Washington, 1st Dist.
Hamilton No. C-140315, 2015-Ohio-1815, ¶ 9.
Former R.C.2967.191 authorized the trial court to give a
defendant 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. Thus,
prisoners must be given credit for the time they have been
confined for reasons arising out of the offense for which
they are convicted and sentenced, including the time they are
confined awaiting trial. State v. Fugate, 117 Ohio
St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, ¶ 7-8;
State v. Klein, 1st Dist. Hamilton Nos. C-040176 and
C-040224, 2005-Ohio-1761, ¶ 26. But prisoners are not
entitled to credit for any period of incarceration that
arises from facts separate from those upon which their
current sentence is based. Klein at ¶ 26.
Further, the Ohio Supreme Court has made clear that under
former R.C. 2152.18(B), a juvenile is entitled to receive
credit for the time the juvenile was confined in connection
with the delinquent-child complaint upon which an order of
commitment is based. In re D.S., 148 Ohio St.3d 390,
2016-Ohio-7369, 71 N.E.3d 223, ¶ 15. In other words,
"Judges must grant confinement credit under R.C.
2152.18(B) if the confinement stems from an original
complaint and is sufficiently linked to the adjudication of
the charges upon which the juvenile court orders
commitment." Id. at ¶ 22; In re
J.D., 5th Dist. Richland No. 17CA42, 2018-Ohio-1823,
In In re D.S., the state filed a complaint alleging
that the juvenile was delinquent for committing acts that
would have constituted two counts of aggravated robbery with
accompanying firearm specifications if committed by an adult.
All of those charges arose from a single incident.
Subsequently, the juvenile court transferred the case to the
general division of the common pleas court. The juvenile
remained in juvenile detention until his transfer to the
In the common pleas court, the state moved to dismiss the
indictment based on an agreement with the juvenile, in which
the juvenile was to plead delinquent to one count of robbery
with an accompanying firearm specification. The common pleas
court granted the motion. Upon return of the case to juvenile
court, the judge conducted an adjudicatory hearing and
accepted the juvenile's admission to the charge of
robbery with the specification. In doing so, the judge
categorized the case as "refiling, an amended filing of
what was originally filed.”
The juvenile court failed to award the juvenile credit for
any time during which he was confined before commitment. The
Ohio Supreme Court reversed, stating that the entire period
during which the juvenile was confined was in connection with
the original juvenile complaint and that he was entitled to
credit for that ...