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When Concurrent Sentences Are Imposed, Pretrial Jail Time Must Be Counted Against Each Sentence

2006-2289.  State v. Fugate, Slip Opinion No. 2008-Ohio-856.
Franklin App. No. 06AP-298, 2006-Ohio-5748.  Judgment reversed and cause remanded.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2008/2008-Ohio-856.pdf

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(March 6, 2008) In a decision announced today, the Supreme Court of Ohio ruled that when a criminal defendant is sentenced to concurrent prison terms for multiple charges, state law requires that credit for days the defendant served in jail in lieu of bond while awaiting trial must be counted against each of the concurrent sentences. The Court’s 7-0 decision was authored by Justice Judith Ann Lanzinger.

The case involved criminal defendant Daniel Fugate of Columbus, who spent 213 days in jail in lieu of bond while awaiting trial on charges of burglary and theft. The Franklin County Court of Common Pleas found Fugate guilty on both counts and sentenced him to two years in prison on the burglary charge and six months on the theft charge. The trial court also found that Fugate’s burglary and theft convictions violated the terms of his community control from a prior conviction, and sentenced him to a one-year prison term for the probation violation. The court ordered that the three sentences be served concurrently (at the same time). However, the trial judge credited all of the 213 days Fugate had been in jail awaiting trial toward his one-year sentence for violating probation, and zero days of his “time served” against the two-year burglary and theft sentence.

Fugate appealed. On review, the 10th District Court of Appeals rejected his claim that his pretrial jail time must be credited against each ofhis concurrent sentences, and affirmed the action of the trial court.  Fugate sought Supreme Court review of the lower court rulings, and the justices agreed to hear arguments in the case.

In today’s unanimous decision, the justices reversed the judgment of the 10th District and remanded the case for resentencing with Fugate’s 213 days of pretrial jail time to be credited against each of his concurrent sentences.

Writing for the Court, Justice Lanzinger said the requirement that all of a defendant’s pretrial jail time must be subtracted from the total days to be served after conviction is based on federal and state case law interpreting the “equal protection” provisions of the U.S. and Ohio constitutions. She cited multiple court decisions holding that the punishment imposed on criminal defendants who cannot afford to post bond must be no different than that imposed on offenders who remain free until trial because they have the resources to make bail. 

Justice Lanzinger wrote: “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 ...’  The Ohio Administrative Code provides additional details regarding when a prisoner is entitled to jail-time credit and how to calculate a prison term, taking the credit into account. Most relevant to the question before us is Ohio Adm.Code 5120-2-04(F), which states that ‘[i]f an offender is serving two or more sentences, stated prison terms or combination thereof concurrently, the adult parole authority shall independently reduce each sentence or stated prison term for the number of days confined for that offense.’ ... The Administrative Code provides a different rule for calculating jail-time credit for offenders serving consecutive terms. In such cases, the code instructs that jail-time credit be applied only once, to the total term. See Ohio Adm.Code 5120-2-04(G).”

Applying those provisions to Fugate’s case, Justice Lanzinger concluded: “When a defendant is sentenced to consecutive terms, the terms of imprisonment are served one after another. Jail-time credit applied to one prison term gives full credit that is due, because the credit reduces the entire length of the prison sentence. However, when a defendant is sentenced to concurrent terms, credit must be applied against all terms, because the sentences are served simultaneously. If an offender is sentenced to concurrent terms, applying credit to one term only would, in effect, negate the credit for time that the offender has been held. To deny such credit would constitute a violation of the Equal Protection Clause. Therefore we hold that when 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.” 

While all six other justices joined Justice Lanzinger’s opinion, Justice Evelyn Lundberg Stratton also entered a separate concurrence emphasizing the equal protection doctrine underlying the Court’s holding. She cited several court decisions barring the imposition of unequal sentences on defendants based solely on their economic ability to post bond before trial.

“If the offender is sentenced to concurrent terms, applying credit to only one term would cancel out the credit for time that the offender had been held. For example, here the court applied 213 days of jail-time credit to the shorter term of concurrent imprisonment. This rendered the jail-time credit meaningless because it left the greater sentence undiminished,” wrote Justice Stratton. “Under the court of appeals’ holding, if two equally culpable codefendants are found guilty of multiple offenses and receive identical concurrent sentences, they would serve very different actual periods of incarceration if one had been able to post bond and the other had not. A poor criminal defendant should not spend more time in prison than his wealthier counterpart simply because he has less money. For the reasons stated above, I concur in the majority’s decision to reverse the judgment of the court of appeals and remand the cause.”

Paul Skendelas, 614.719.886, for Daniel Fugate.

Kimberly M. Bond, 614.462.3555, for the State of Ohio and Franklin County prosecutor’s office.