[Cite as State v. Haley,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, : CASE NO. CA2012-10-212 Plaintiff-Appellee, : OPINION : 10/14/2013 - vs - :

STEVEN J. HALEY, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2007-06-1023

Michael T. Gmoser, Butler County Prosecuting Attorney, Kimberly L. McManus, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Charles M. Conliff, 5145 Pleasant Avenue, Suite 18, P.O. Box 18424, Fairfield, Ohio 45018- 0424, for defendant-appellant

S. POWELL, J.

{¶ 1} Defendant-appellant, Steven J. Haley, appeals from the Butler County Court of

Common Pleas decision sentencing him to serve 12 months in prison for violating his

community control obligations. For the reasons outlined below, we affirm.

{¶ 2} On September 26, 2007, the Butler County grand jury returned an indictment

charging Haley with one count of receiving stolen property and one count of forgery, both Butler CA2012-10-212

fifth-degree felonies. After entering into a plea agreement, Haley pled guilty to forgery and

the receiving stolen property charge was merged. Following his guilty plea, the trial court

then sentenced Haley to serve a two-year period of community control. The two-year

community control sentence was to be served consecutive to his three-year prison term

resulting from an unrelated burglary conviction. Haley did not appeal from his conviction or

sentence.

{¶ 3} On November 8, 2010, the trial court was notified that Haley had allegedly

violated his community control obligations by engaging in a physical altercation with another

resident at the Community Correctional Center. After holding a hearing on the matter, the

trial court found Haley in violation of his community control obligations and sentenced him to

serve a three-year period of community control.

{¶ 4} On April 12, 2012, the trial court was once again notified that Haley had

allegedly violated his community control obligations after being indicted on charges of child

endangering and felony murder resulting from the death of James Smith, his fiancé's infant

son. Haley was subsequently found guilty of the murder and sentenced to serve an indefinite

term of 15 years to life in prison. This court recently affirmed Haley's felony murder

conviction and resulting sentence in State v. Haley, 12th Dist. Butler No. CA2012-10-211,

.

{¶ 5} On October 25, 2012, the trial court found Haley had again violated the terms of

his community control obligations as a result of his felony murder conviction. The trial court

then sentenced Haley to the maximum 12 months in prison to be served consecutive to his

indefinite term of 15 years to life resulting from his felony murder conviction. The trial court

also determined Haley was entitled to 172 days of jail time credit. Haley now appeals from

the trial court's decision, raising a single assignment of error for review.

{¶ 6} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY -2- Butler CA2012-10-212

SENTENCING HIM TO PRISON.

{¶ 7} A trial court's decision revoking community control may only be reversed if the

trial court abused its discretion. State v. Hughes, 12th Dist. Warren No. CA2002-11-124,

, ¶ 7. Whether an offender can remain on community control depends on

compliance with the community control conditions and is a decision that rests "within the

sound discretion of the court." State v. Wolpert, 12th Dist. Butler No. CA2006-10-244, 2007-

Ohio-4734, ¶ 10. Haley does not appeal from the trial court's decision revoking his

community control. Instead, Haley argues the trial court erred by sentencing him to serve 12

months in prison after revoking his community control. Haley also argues the trial court erred

by finding he was only entitled to 172 days of jail time credit. Finding no merit to either of

Haley's claims, we affirm the trial court's decision.

{¶ 8} As we recently stated in State v. Crawford, 12th Dist. Clermont No. CA2012-12-

088,

, "the standard of review set forth in R.C. 2953.08(G)(2) shall govern all

felony sentences." Id. at ¶ 6, quoting State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-

Ohio-2525, ¶ 7; see also State v. Cochran, 10th Dist. Franklin No. 11AP-408, 2012-Ohio-

5899, ¶ 52. Pursuant to R.C. 2953.08(G)(2), when hearing an appeal of a trial court's felony

sentencing decision, such as the case here, "[t]he appellate court may increase, reduce, or

otherwise modify a sentence that is appealed under this section or may vacate the sentence

and remand the matter to the sentencing court for resentencing." However, as explicitly

stated in R.C. 2953.08(G)(2), "[t]he appellate court's standard for review is not whether the

sentencing court abused its discretion."

{¶ 9} Rather, the appellate court may take any action authorized under R.C.

2953.08(G)(2) only if the court "clearly and convincingly finds" that either: (1) "the record

does not support the sentencing court's findings under division (B) or (D) of section 2929.13,

division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised -3- Butler CA2012-10-212

Code, whichever, if any, is relevant;" or (2) "[t]hat the sentence is otherwise contrary to law."

A sentence is not clearly and convincingly contrary to law where the trial court considers the

purposes and principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12,

properly applies postrelease control, and sentences appellant within the permissible statutory

range. State v. Pearce, 12th Dist. Clermont No. CA2013-01-001,

;

State v. Elliott, 12th Dist. Clermont No. CA2009-03-020,

, ¶ 10.

{¶ 10} In making such a determination, it is "important to understand that the clear and

convincing standard used by R.C. 2953.08(G)(2) is written in the negative." State v. Lee,

12th Dist. Butler No. CA2012-09-182,

; State v. Venes, 8th Dist.

Cuyahoga No. 98682,

. "It does not say that the trial judge must have

clear and convincing evidence to support its findings."

Quite the contrary, "it is the court

of appeals that must clearly and convincingly find that the record does not support the court's

findings."

Simply stated, the language in R.C. 2953.08(G)(2) establishes an "extremely

deferential standard of review" for "the restriction is on the appellate court, not the trial

judge."

{¶ 11} In this case, Haley argues the trial court lacked "a sufficient factual basis" upon

which to impose a maximum 12-month prison term for violating his community control

obligations. In support of this claim, Haley references the fact that he had only been to

prison once, that his forgery conviction was "hardly the worst form of that offense" as it only

involved "cashing a check for $200," and that his felony murder conviction was a "shaken-

baby case" that was "neither pre-meditated or even intentional." Although not explicit, we

find Haley's arguments are nothing more than a challenge to the trial court's decision as an

abuse of discretion.

{¶ 12} However, and as previously noted, the General Assembly has specifically

stated through the passage of R.C. 2953.08(G)(2) that this court's standard for review "is not -4- Butler CA2012-10-212

whether the sentencing court abused its discretion." As a result, we are not entitled to review

the trial court's decision under the more lenient abuse of discretion standard. See, e.g.,

Crawford,

; Pearce,

; see also A.H., 2013-

Ohio-2525 at ¶ 15. Nevertheless, in the interest of justice and fairness, we will review the

trial court's decision in accordance with the applicable standard as provided by R.C.

2953.08(G)(2).

{¶ 13} After a thorough review of the record, we find the trial court's decision to

sentence Haley to the maximum 12-month prison term was supported by the record and

otherwise not contrary to law. As the record clearly indicates, Haley's 12-month sentence

was within the statutory range for a fifth-degree felony. See State v. Warren, 12th Dist.

Clermont No. CA2012-12-087,

. Moreover, the trial court explicitly

notified Haley that he would be sentenced to the maximum 12-month prison term if he was

found to have violated his community control obligations. As the trial court stated:

Sir, if you violate the terms and conditions of your community control you'll be brought back before the Court, the Court could modify, extend, or terminate your community control. If terminated, the Court will sentence you to 12 months in the Ohio Department of Rehabilitation and Corrections.

{¶ 14} The trial court also properly imposed postrelease control and sentenced Haley

only after specifically stating it had considered the circumstances of the case, the principles

and purposes of sentencing under R.C. 2929.11, and had balanced the seriousness and

recidivism factors as found in R.C. 2929.12. The trial court also included this as part of its

sentencing entry. Hayley's 12-month prison sentence, therefore, is not clearly and

convincingly contrary to law. See, e.g., State v. Gatliff, 12th Dist. Clermont No. CA2012-06-

045,

; State v. Bishop, 12th Dist. Clermont No. CA2010-08-054, 2011-

Ohio-3429, ¶ 16.

{¶ 15} Haley also argues the trial court erred by ordering his sentence to run -5- Butler CA2012-10-212

consecutive to his indefinite prison term of 15 years to life resulting from his felony murder

conviction. Pursuant to R.C. 2929.14(C), in order to impose a consecutive sentence, the trial

court must find: (1) that consecutive sentencing is necessary to protect the public from future

crime or to punish the offender; (2) that consecutive sentences are not disproportionate to the

seriousness of the offender's conduct and to the danger the offender poses to the public; and

(3) that one of the following apply:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

See State v. Smith, 12th Dist. Clermont No. CA2012-01-004,

, ¶ 21.

{¶ 16} The trial court is not required to give reasons explaining these findings, nor is

the court required to recite any "magic" or "talismanic" words when imposing consecutive

sentences. State v. Hubbard, 10th Dist. Franklin No. 11AP-945,

, ¶ 86; State

v. Jones, 8th Dist. Cuyahoga No. 99230,

. However, it must be clear

from the record that the trial court actually made the required statutory findings. State v.

Williams, 12th Dist. Warren No. CA2012-08-080,

.

{¶ 17} In ordering Haley's 12-month prison sentence to run consecutive to his

indefinite 15-year-to-life prison term, the trial court explicitly stated:

The Court will find that consecutive terms are necessary to adequately protect the public and to punish the Defendant and -6- Butler CA2012-10-212

are not disproportionate. Will find that the Defendant committed crimes while on community control. Further, the Court will find that the Defendant's criminal history shows that consecutive terms are needed to protect the public.

The trial court later memorialized these findings within its sentencing entry.

{¶ 18} As can be seen, the record clearly establishes that the trial court properly

complied with the dictates of R.C. 2929.14(C)(4) when imposing consecutive sentences. See

State v. Oren, 12th Dist. Madison No. CA2012-05-010,

; State v.

Dillon, 12th Dist. Madison No. CA2012-06-012,

. The trial court,

therefore, did not err by imposing consecutive sentences in this matter.

{¶ 19} Finally, Haley argues the trial court erred in calculating his jail time credit.

Specifically, Haley argues he was entitled to an additional 204 days of jail time credit "for the

period he was held in jail on both his probation violation and the pending murder

indictment[.]" We disagree.

{¶ 20} "The equal protection clause requires that all time spent in jail prior to trial and

prior to commitment must be credited to the prisoner's sentence." State v. Reeves, 10th Dist.

Franklin No. 09AP-493,

, ¶ 23, citing State v. Fugate,

,

, ¶ 7. The trial court makes the factual determination as to the number of

days of confinement that a defendant is entitled to have credited toward his sentence. State

v. Rarden, 12th Dist. Butler Nos. CA2008-08-185 to 187 and CA2008-08-189 to 191, 2009-

Ohio-5637, ¶ 10, citing State ex rel. Rankin v. Ohio Adult Parole Auth.,

,

, ¶ 7. To that end, pursuant to R.C. 2967.191, a prison term shall be

reduced "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[.]"

{¶ 21} "Although the principle of crediting time served seems fairly simple on its face,

in practice, it can be complicated when, inter alia, the defendant is charged with multiple

-7- Butler CA2012-10-212

crimes committed at different times, or when the defendant is incarcerated due to a probation

violation." State v. Chafin, 10th Dist. Franklin No. 06AP-1108,

.

However, such as the case here, an offender is not entitled to jail time credit for any period of

incarceration that arose from facts which are separate and apart from those on which his

current sentence is based. State v. DeMarco, 8th Dist. Cuyahoga No. 96605, 2011-Ohio-

5187, ¶ 10; State v. Williams,

(2d Dist. 1998). "This means that

there is no jail-time credit for time served on unrelated offenses, even if that time served runs

concurrently during the pre-detention phase of another matter." State v. Maddox, 8th Dist.

Cuyahoga No. 99120,

; see, e.g., State v. Bradford,

,

, ¶ 7 (12th Dist.) (finding prisoner was not entitled to any additional jail

time credit as he was confined on unrelated charges "and was not being held solely on the

robbery offense for which he was convicted and sentenced").

{¶ 22} Moreover, it is undisputed Haley's 12-month prison sentence was ordered to

run consecutive to his indefinite 15-year-to-life sentence imposed for his felony murder

conviction. As noted by the Ohio Supreme Court in Fugate:

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.

at ¶ 22.

{¶ 23} Due to the consecutive nature of his sentences, Haley was not entitled to an

additional 204 days of jail time credit resulting from his community control violation. Instead,

the additional jail time he served was properly credited to his indefinite 15-year-to-life prison

sentence resulting from his felony murder conviction. In turn, contrary to Haley's claims

otherwise, he was not denied any jail time credit for which he was entitled. The trial court,

therefore, did not err in refusing to provide Haley with an additional 204 days of jail time

-8- Butler CA2012-10-212

credit. Accordingly, having found no error in the trial court's sentencing decision, Haley's

single assignment of error is overruled.

{¶ 24} Judgment affirmed.

HENDRICKSON, P.J., and RINGLAND, J., concur.

-9-