[Cite as State v. Dailey,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY

STATE OF OHIO, CASE NO. 8-10-01

PLAINTIFF-APPELLEE,

v.

WILLIAM R. DAILEY, OPINION

DEFENDANT-APPELLANT.

Appeal from Logan County Common Pleas Court Trial Court No. CR 09-03-0043

Judgment Affirmed

Date of Decision: October 4, 2010

APPEARANCES:

Marc S. Triplett, for Appellant

Daniel J. LaRoche, for Appellee Case No. 8-10-01

PRESTON, J.

{¶1} Defendant-appellant, William R. Dailey (hereinafter “Dailey”),

appeals the Logan County Court of Common Pleas’ judgment dismissing his

motion to suppress and its judgment entry of sentence. For the reasons that

follow, we affirm.

{¶2} This case stems from the events that took place on January 10, 2009,

in Bellefontaine, Ohio. On that particular day, Brad Stafford (hereinafter

“Stafford”) was working at the Wal-Mart store in Bellefontaine, Ohio, in the asset

protection department. (June 17, 2009 Tr. at 28). One of Stafford’s duties was to

deter theft by walking through the store dressed in an inconspicuous manner,

observe customers, and, if necessary, apprehend shoplifters. (Id. at 30). Around

5:30 p.m. that day, Stafford observed Dailey in the store’s electronics department,

located at the back of the store, walk up to a display of DVDs, pick up several

DVDs, and then start walking towards the front of the store. (Id. at 29-31, 52).

Stafford followed Dailey, who was still holding the stack of DVDs, until he briefly

lost sight of him for a few moments; however, when Dailey re-emerged, he was no

longer holding the DVDs. (Id.). Then Stafford observed Dailey take a computer

off a nearby shelf, place it in his shopping cart, and head to the exit of the store at

an accelerated pace. (Id.). As a result, Stafford started chasing after Dailey. (Id.).

An employee at the front of the store yelled at Dailey in an attempt to stop him,

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and Stafford eventually reached Dailey at the store’s sliding doors. (Id. at 33). At

that point, Dailey turned around and attempted to elbow Stafford, and a physical

altercation ensued between the two individuals, at which point Dailey ended up

grabbing Stafford’s neck. (Id.). Eventually, Stafford grabbed Dailey’s jacket in

an attempt to detain him, but after swaying back and forth and turning around

several times, Dailey managed to turn the jacket inside out and slip out of its arms,

and took off running. (August 7, 2009 at 5-7).

{¶3} After Dailey left the scene, Stafford went back inside with the coat

and set off the store’s anti-theft device at the store’s entrance. (Id. at 8). Stafford

looked through the coat and discovered several DVDs and a cell phone. (Id.).

{¶4} Officer Jason Lapp of the Bellefontaine Police Department

responded to the incident. (August 7, 2009 Tr. at 15). He talked to Stafford about

what had happened and was given the jacket and the cell phone. (Id.). Officer

Lapp tried to turn on the cell phone, but it died immediately, so Stafford provided

him a charger from the store. (Id. at 15-16). After re-charging the cell phone,

Officer Lapp was able to locate the contact information stored in the cell phone’s

directory and made a call to one of the contacts. (Id. at 15-16). Officer Lapp

spoke to a woman, and through the course of their conversation, was able to obtain

enough information regarding the identification of the cell phone’s owner. (Id. at

17). Officer Lapp used this information to obtain a photograph of Dailey, which

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was shown to Stafford, who identified him as the person who had taken the DVDs

and assaulted him. (Id. at 14).

{¶5} On March 10, 2009, the Logan County Grand Jury indicted Dailey

on one count of robbery in violation of R.C. 2911.02(A)(2), a felony of the second

degree, and one count theft in violation of R.C. 2913.02(A)(1), a felony of the fifth

degree. Dailey appeared before the Logan County Court of Common Pleas for

arraignment on March 13, 2009, and the trial court granted a recognizance bond to

him. Counsel was appointed and the matter was continued to March 16, 2009, at

which time Dailey appeared and entered pleas of not guilty to each count of the

indictment.

{¶6} On June 17, 2009, the trial court held an evidentiary hearing on

Dailey’s motion to suppress the identification testimony of Mr. Stafford. The

parties did not dispute that Officer Lapp had shown Mr. Stafford a single

photograph which contained Dailey’s picture. Ultimately, the trial court overruled

the motion.

{¶7} On August 7, 2009, the trial court conducted another evidentiary

hearing on Dailey’s second motion to suppress the data contained in his cell phone

that he argued had been obtained by an improper warrantless search. The trial

court overruled his second motion to suppress.

{¶8} On September 30, 2009, Dailey entered into a plea agreement with

the State, whereby he entered a no contest plea to an amended charge of robbery

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(reduced to a felony of the third degree), while State dismissed the theft count.

After entering a no contest plea, the trial court found him guilty, revoked his

recognizance bond, and set the matter for sentencing. On November 2, 2009, a

sentencing hearing was held and the trial court imposed a two-year prison

sentence, which was to run concurrently to a prison sentence Dailey was then

serving on a community control violation imposed by the Marion County Court of

Common Pleas. The trial court also denied Dailey’s motion to grant him jail-time

credit for the entire time he had been in custody since his January 10, 2009 arrest;

however, the trial court did grant him jail-time credit for the time he had been

incarcerated since entering his no contest plea and having his recognizance bond

revoked.

{¶9} The trial court filed its judgment entry of sentence on November 10,

2009, but because of an error, the trial court issues its Nunc Pro Tunc judgment

entry of sentence on December 22, 2009.

{¶10} Dailey now appeals and raises two assignments of error.

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S MOTION TO SUPPRESS THE WARRANTLESS SEARCH OF THE DATA IN HIS CELL PHONE.

{¶11} In his first assignment of error, Dailey argues that the trial court

erred when it denied his motion to suppress the warrantless search of the data in

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his cell phone. The State responds by arguing that Dailey lacks standing to object

to the search of his cell phone since he voluntarily abandoned it at the scene.

{¶12} A review of the denial of a motion to suppress involves mixed

questions of law and fact. State v. Burnside,

, 2003-Ohio-

5372,

. At a suppression hearing, the trial court assumes the role

of trier of fact and, as such, is in the best position to evaluate the evidence and the

credibility of witnesses. See State v. Carter (1995),

,

. When reviewing a ruling on a motion to suppress, deference is given

to the trial court’s findings of fact so long as they are supported by competent,

credible evidence. Burnside,

, at ¶8. With respect to the trial

court’s conclusions of law, however, our standard of review is de novo and we

must decide whether the facts satisfy the applicable legal standard. State v.

McNamara (1997),

,

.

{¶13} In this particular case, the trial court overruled Dailey’s motion to

suppress and found that “[t]he Defendant’s constitutional rights were not violated

by the police in using the information in the cell phone to identify the Defendant

since the Defendant abandoned the cell phone.” (Aug. 13, 2009 JE at 3). After

reviewing the record and the applicable law, we agree with the trial court’s

decision.

{¶14} The Fourth and Fourteenth Amendments to the United States

Constitution generally prohibit warrantless searches and seizures, and any

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evidence that is obtained during an unlawful search or seizure will be excluded

from being used against the defendant. Mapp v. Ohio (1961),

,

,

. At a suppression hearing, the State bears the

burden of establishing that a warrantless search and seizure falls within one of the

exceptions to the warrant requirement, and that it meets Fourth Amendment

standards of reasonableness. Xenia v. Wallace (1988),

,

, at paragraph two of the syllabus; State v. Kessler (1978),

,

; City of Maumee v. Weisner (1999),

,

, citing 5 LaFave, Search and Seizure (3 Ed. 1996),

Section 11.2(b).

{¶15} Nevertheless, “[i]t has long been settled that ‘[a] defendant has no

standing under the Fourth Amendment to the United States Constitution to object

to a search and seizure of property that he has voluntarily abandoned’.” State v.

Russell, 2nd Dist. No. 21458,

, quoting State v. Freeman

(1980),

,

, paragraph two of the syllabus. The

Ohio Supreme Court has further explained:

‘Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts. All relevant circumstances existing at the time of the alleged abandonment should be considered. Police pursuit or the existence of a police investigation does not of itself render abandonment involuntary. The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so

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that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.’

Freeman,

, quoting United States v. Colbert (C.A.5, 1973),

, internal citations omitted. The State also bears the burden of

establishing, by a preponderance of the evidence, that the defendant abandoned the

property at issue. State v. Dennis,

,

,

, citing State v. Dubose,

,

,

.

{¶16} In this particular case, we believe that it was clear that Dailey

voluntarily abandoned his cell phone when he slipped out of his coat and left it

and its contents behind in order to escape being detained by a Wal-Mart store

employee. When Stafford reached Dailey at the Wal-Mart sliding doors, Dailey

turned around and tried to elbow him in the face. A physical altercation ensued

between the two, which eventually spilled into the store’s parking lot. At one

point, Stafford grabbed Dailey’s jacket, but Dailey managed to maneuver his way

out of the jacket and quickly ran off, leaving his jacket in Stafford’s possession.

At no time thereafter did Dailey request his jacket or any of its contents be

returned to him.

{¶17} Dailey claims that he did not voluntarily abandon his cell phone

because his relinquishment of his coat was the result of the restraints placed upon

him by Stafford. We disagree and fail to see how being restrained by Stafford

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rendered his decision to leave his jacket and its contents behind involuntary. In

fact, it seems rather clear that in an attempt to escape being detained by the store

employee, Dailey deliberately chose to leave his jacket and its contents behind.

As a result, we find that he no longer retained a reasonable expectation of privacy

with regards to the cell phone, and that the subsequent search of the data in his cell

phone was reasonable.

{¶18} Nevertheless, Dailey argues that the warrantless search of his phone

was in violation of his constitutional rights. In support of his argument, Dailey

cites to State v. Smith,

,

,

, in

which the Supreme Court considered whether a warrantless search of a cell

phone’s data subsequent to a search incident to arrest was a violation of a

defendant’s Fourth Amendment right against unreasonable searches and seizures.

For purposes of a Fourth Amendment analysis, the Supreme Court specifically

rejected the idea that cell phones are similar to closed containers, and recognized

that an individual has more of a privacy interest in the contents of a cell phone

than an individual would have in an address book or pager. Smith, 2009-Ohio-

6426, at ¶¶20-24. Ultimately, the Court held that, “[t]he warrantless search of data

within a cell phone seized incident to a lawful arrest is prohibited by the Fourth

Amendment when the search is unnecessary for the safety of law-enforcement

officers and there are no exigent circumstances.”

at syllabus.

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{¶19} Dailey claims that since he had not voluntarily abandoned his cell

phone, he still had a reasonable expectation of privacy and, as a result of Smith,

the police had to first obtain a warrant in order to conduct a search of his cell

phone. However, even if we were to find that Dailey had not voluntarily

abandoned his cell phone, we believe that the facts of the Smith case are

distinguishable from the present case.

{¶20} First of all, the manner in which law enforcement obtained the cell

phones in the two cases differ significantly. In Smith, the police had seized the

defendant’s cell phone as a result of arresting him. Id. at ¶3. Here, Dailey’s cell

phone was possessed as a result of him leaving his coat behind in an attempt to

escape being apprehended by a Wal-Mart employee. Second, the basis for the

warrantless search conducted on the defendant’s cell phone in Smith was

completely different than the basis for the warrantless search in this case. In

Smith, the State argued that the search had been lawful because it had been

performed as a search incident to an arrest. Id. at ¶11. Here, the State argued, and

the trial court found, that Dailey had no standing to object to a warrantless search

of his cell phone because he had left it behind while he was fleeing the scene of

the incident.

{¶21} Furthermore, we note that while the Supreme Court pointedly

disagreed with the State’s position that a warrantless search of a cell phone

conducted as a search incident to arrest was permissible under the Fourth

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Amendment, its ruling was not so broad as to cover every search conducted on cell

phones seized by law enforcement. Rather, it specifically noted that “there may be

some instances in which a warrantless search of a cell phone is necessary to

identify a suspect.” Id. at ¶27. We believe that voluntary abandonment is a prime

example of when a warrantless search of a cell phone may be conducted since it is

clear that a defendant lacks standing to object to a search and seizure of property

that he has voluntarily abandoned. Therefore, we believe that the trial court’s

decision to overrule Dailey’s motion to suppress the warrantless search of the data

in his cell phone was reasonable given the facts presented, and, legally correct

given the applicable law.

{¶22} Dailey’s first assignment of error is, therefore, overruled.

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S MOTION FOR ADDITIONAL JAIL TIME CREDIT.

{¶23} In his second assignment of error, Dailey argues that the trial court

erred when it limited Dailey’s jail-time credit to only the time between the date of

his no contest plea (when the trial court revoked his personal recognizance bond)

and the sentencing hearing. In particular, Dailey claims that jail-time credit should

have been applied to his Logan County sentence for time he served on his re-

incarceration in Marion County for a community control violation when his Logan

County sentence was to be served concurrently with his Marion County sentence.

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{¶24} “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,

, quoting

State v. Eaton, 3d Dist. No. 14-04-53,

. See, also, State v.

Fair (2000),

,

.

{¶25} R.C. 2967.191 governs a defendant’s right to jail-time credit, and, in

pertinent part, provides:

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 * * *.

Thus, a defendant is only entitled to jail-time credit for confinement that is related

to the offense for which he is being sentenced. State v. Daughenbaugh, 3d Dist.

No. 16-09-05,

, citing Pitts,

; State v.

Brooks, 9th Dist. No. 05CA008786,

.

{¶26} On appeal, Dailey claims that he is entitled to additional jail-time

credit for the entire time he had been in custody since his January 10, 2009 arrest.

However, as the statute explicitly states, a defendant is only entitled to “the total

number of days that the prisoner was confined for any reason arising out of the

offense for which the prisoner was convicted or sentenced.” Here, Dailey was

never confined because of this offense until after he entered his no contest plea.

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On March 10, 2009, the Logan County Grand Jury indicted Dailey on one count of

robbery in violation of R.C. 2911.02(A)(2), a felony of the second degree, and one

count theft in violation of R.C. 2913.02(A)(1), a felony of the fifth degree. Due to

Dailey’s current re-incarceration in Marion County, he was ordered to be brought

before the Logan County court on March 13, 2009, for arraignment. Dailey

appeared before the Logan County Court of Common Pleas for arraignment, and

the trial court subsequently granted him a recognizance bond. Despite the

recognizance bond, Dailey was returned to prison since he was serving time for a

community control violation out of Marion County. Nevertheless, with respect to

the Logan County case, at that point in the proceedings, Dailey was not yet being

“confined for any reason arising out of the offense.”

{¶27} Moreover, although Daily seems to suggest that his Marion County

sentence for his community control violation “arose out of the offense for which

he was convicted or sentenced” in Logan County, it is clear that the two offenses

are not related under the definition of R.C. 2967.191. State v. Bainter, 6th Dist.

No. OT-08-002,

, quoting State v. Mitchell, 6th Dist. Nos. L-

05-1122, L-05-1123,

(“Generally, after an arrest for a

community control violation, any days in confinement count only toward the

sentence for the offense for which the community control violation was

imposed.”). However, we acknowledge that Dailey was entitled to some jail-time

credit, but it was not until September 30, 2009 when Dailey entered his no contest

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plea and the trial court revoked his recognizance bond, consequently confining

Dailey on the Logan County offenses. Moreover, at the sentencing hearing, the

trial court granted Dailey the appropriate amount of jail-time credit for the time he

spent confined from his no contest plea to when his sentence was imposed.

Nevertheless, with respect to any additional jail-time credit Dailey may believe he

is entitled to receive, because he was not confined any time prior to entering his no

contest plea on the Logan County offenses, he was not entitled to any additional

jail-time credit.

{¶28} Notwithstanding the above, Dailey claims that he was entitled to jail-

time credit for the time he spent in custody on the Marion County community

control violation. This is because his sentence in this Logan County case was

ordered to be served concurrently with the Marion County sentence, and that his

community control violation was based on his conduct in Logan County. In

support of his position, Dailey cites to the State v. Fugate,

,

,

. In Fugate, the Ohio Supreme Court held that

“when a defendant is sentenced to concurrent terms, credit must be applied against

all terms, because the sentences are served simultaneously.” Id. at ¶22. However,

this holding only applies when the defendant is actually entitled to the jail-time

credit pursuant to R.C. 2967.191, or, more clearly stated, when the defendant is

being held on each charge. State v. Parsley, 10th Dist. No. 09AP-612, 2010-Ohio-

1689, ¶50, citing Fugate,

, at ¶12, 18 (“So long as an offender is

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held on a charge while awaiting trial or sentencing, the offender is entitled to jail-

time credit[.] * * * Fugate was indeed held in custody on [each charge] and is

therefore entitled to jail-time credit against each concurrent prison term.”). See,

also, State v. Maynard, 10th Dist. No. 08AP-43,

(noting that

the parties conceded in Fugate that he was held on each charge). Again, Dailey

was not held in custody on the Logan County offenses until his recognizance bond

was revoked when he entered his no contest plea. Thus, Fugate is inapplicable.

Since Dailey received jail-time credit equal to the amount of time he spent in

custody between entering his no contest plea and the imposition of his sentence, he

received all the jail-time credit he was entitled to receive under the statute.

Therefore, the trial court did not err in denying his motion for additional jail-time

credit.

{¶29} Dailey’s second assignment of error is, therefore, overruled.

{¶30} 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, P.J., and ROGERS, J., concur.

/jnc

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