[Cite as State v. Wisniewski,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 110092 v. :

MARK WISNIEWSKI, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: September 2, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-623494-A and CR-18-628167-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Patrick J. Lavelle and Jeffrey Schnatter, Assistant Prosecuting Attorneys, for appellee.

The Law Office of Jaye M. Schlachet, and Jaye M. Schlachet and Eric M. Levy, for appellant.

MARY EILEEN KILBANE, P.J.:

Defendant-appellant Mark Wisniewski (“Wisniewski”) appeals from

his conviction for involuntary manslaughter. Specifically, Wisniewski argues that

his convictions were not supported by sufficient evidence and were against the manifest weight of the evidence, and that the trial court erred in failing to award him

jail-time credit. After a thorough review of the record and law, we affirm the

judgment of the trial court.

Factual and Procedural History

The charges in this case resulted from a drug overdose on March 11,

2015. At that time, 59-year-old Jack Heaton (“Heaton” or “the victim”) was living

with his mother in Bedford, Ohio. Around 10 a.m. on March 11, 2015, Heaton’s

mother found him unresponsive in the basement of their home. She called her

daughter, also Heaton’s sister, and asked her to come over because she could not

wake Heaton up. Heaton’s sister called 911 and headed to her mother’s house.

When Heaton’s sister arrived, police and paramedics were already there. Police

prevented her from going into Heaton’s basement room and directed her to wait

upstairs with her mother.

Firefighter Stephanie Balochko (“Balochko”) responded to the scene

in her capacity as a firefighter and paramedic for the city of Bedford. Balochko found

Heaton unresponsive in a chair near a computer desk in his basement. Heaton had

no pulse, was cool to the touch, and an EKG confirmed that he was deceased. After

calling the hospital and the coroner and relaying that Heaton was deceased,

Balochko left the scene.

Officer Andrew DiMatteo (“DiMatteo”) and Lieutenant Paul

Kellerman (“Kellerman”) also responded to the scene in their capacity as police

officers in the city of Bedford. DiMatteo arrived at the home, observed Heaton slumped over in a chair in the basement, and proceeded to secure the scene.

DiMatteo remained on the scene in order to preserve evidence and secure the scene

while the medical examiner and the Cuyahoga County Heroin Involved Death

Investigation (“HIDI”) team arrived. Kellerman oversaw the investigation and

assisted in securing the scene.

Detectives Tamika Agnew (“Agnew”) and Douglas Jopek (“Jopek”)

responded to the scene in their capacity as narcotics detectives with HIDI. Agnew

oversaw the investigation and interviewing of the family members on the scene.

Jopek assisted the medical examiner on the scene, took photographs of the scene,

and collected evidence around Heaton’s body. The evidence Jopek collected

included a cell phone, a razor blade with residue, and one unfolded square of paper

with residue. The razor blade and square of paper subsequently tested positive for

heroin residue.

Justin Wilson (“Wilson”), a death investigator with the Cuyahoga

County Medical Examiner’s office, responded to the scene as well. Wilson took

photographs of evidence on the scene and also collected various pieces of evidence,

including prescription pills. Wilson also prepared a report, noting that he had

learned from family members that Heaton had a history of prescription drug abuse

and multiple suicide attempts within the last five years.

Heaton’s brother arrived at the house after his sister called him and

told him that Heaton had died. After the responding officers and paramedics had

left, and Heaton’s body had been removed from the home, Heaton’s brother went into his bedroom. He observed Heaton’s wallet on top of his bed, with his driver’s

license sitting on top of the wallet. He picked them up and put the driver’s license

inside the wallet. Upon opening the billfold of the wallet, Heaton’s brother observed

“what appeared to be some packets folded up in like a magazine page or something.”

He took the packets upstairs, showed his mother and sister, and then called the

Bedford Police Department. Kellerman arrived at the home and retrieved the wallet

and the packets from Heaton’s brother. Kellerman took the evidence back to the

police station and delivered it to Detective Shawn Klubnik (“Klubnik”), the property

officer for the Bedford Police Department. Kellerman informed Klubnik that the

wallet was suspected to contain drugs. Klubnik looked inside the wallet, found the

packets that were suspected to contain drugs, and put the packets into a narcotics

envelope and sealed it. Subsequently, Detective Agnew retrieved the evidence from

the Bedford police and submitted it to the Cuyahoga County forensics lab.

The two packets were subjected to forensic testing and it was

determined that they contained heroin and they tested positive for Wisniewski’s

DNA. No DNA testing was done on the square of paper that tested positive for

heroin residue. Additionally, as part of the investigation in this case, Detective

Agnew went through Heaton’s cell phone. She observed 54 telephone calls between

Heaton and a number that belonged to Wisniewski in March 2015. The last phone

call before Heaton’s death was a 23-second phone call on March 10, 2015, the day

before Heaton died. The deputy medical examiner, David Dolinak, M.D., (“Dolinak”),

ultimately determined that Heaton died as a result of acute heroin, clonazepam,

amphetamine, and fluoxetine toxicity, and the death was deemed accidental.

As a result of Heaton’s death and the subsequent investigation, 0n

September 17, 2018, a Cuyahoga County Grand Jury indicted Wisniewski on the

following five counts, relating to events that took place on March 11, 2015: Count 1,

involuntary manslaughter in violation of R.C. 2903.04(A), with corrupting another

with drugs and/or drug trafficking listed as the predicate offense; Count 2,

corrupting another with drugs in violation of R.C. 2925.02(A)(3); Count 3,

trafficking in violation of R.C. 2925.03(A)(1); Count 4, trafficking in violation of R.C.

2925.03(A)(2); and Count 5, drug possession in violation of R.C. 2925.11(A).

Wisniewski pleaded not guilty to these charges and was appointed counsel.

On March 21, 2019, Wisniewski filed a motion captioned “Defendant

Invokes Right to Self-representation.” At a hearing on April 8, 2019, the court

discussed the right to counsel with Wisniewski, informed him of the charges and

potential penalties he was facing, and advised him as to the perils of representing

himself at trial. The court confirmed that Wisniewski was waiving his right to

counsel knowingly, intelligently, and voluntarily, and appointed standby counsel.

Over the next year, multiple pretrial hearings were held and discovery

was exchanged. On June 16, 2020, Wisniewski filed a motion to dismiss for lack of

speedy trial. On July 20, 2020, the state filed a response to that motion. On August 18, 2020, the court held a hearing on Wisniewski’s motion to dismiss and ultimately

denied that motion.

Between August 18 and September 15, 2020, Wisniewski filed

multiple pretrial motions. On September 29, 2020, prior to trial, the court heard

arguments and ruled on these motions. In connection with the arguments on his

motions, Wisniewski stipulated that the papers found at the scene, but not the

heroin inside them, came from him. He also stipulated as to the expert reports

identifying the drugs found at the scene as heroin.

Wisniewski waived his right to a jury trial, and the case proceeded to

a bench trial on September 29, 2020. Heaton’s sister and brother both testified as

to the events surrounding their brother’s March 2015 death. They both testified that

Heaton had struggled with drug and alcohol addiction since high school. The

responding officers, detectives, and medical examiner testified at trial as to the

events described above.

At the close of the state’s case, Wisniewski objected to photographs of

the two packets found in Heaton’s wallet, as well as the packets themselves, on the

basis that they were not found by police on the scene and there was a break in the

chain of custody. The court overruled this objection and the exhibits were admitted

into evidence. Wisniewski then renewed his motion to dismiss based on a violation

of his speedy trial rights, and the court denied that motion. Finally, Wisniewski

moved for a Crim.R. 29 dismissal of all counts, arguing that the state failed to prove

that he sold heroin to Heaton. The state opposed this motion. The court denied Wisniewski’s motion. Wisniewski did not present any evidence, and he chose not to

testify. The parties made their closing arguments.

On October 8, 2020, the court returned a verdict of guilty on the

involuntary manslaughter, corrupting another with drugs, and drug possession

counts, as well as one of the drug trafficking counts, in violation of R.C.

2925.03(A)(1). The court found Wisniewski not guilty of drug trafficking in violation

of R.C. 2925.03(A)(2).

On October 20, 2020, the court held a sentencing hearing. The court

heard statements from Wisniewski, the assistant prosecuting attorney, and Heaton’s

sister. The state acknowledged that the involuntary manslaughter, corrupting

another with drugs, and drug possession counts would merge for sentencing and

elected to proceed with sentencing on the involuntary manslaughter charge. The

court sentenced Wisniewski to 11 years on the involuntary manslaughter charge and

12 months on the drug possession charge, to be served concurrently, for a total

sentence of 11 years. At sentencing, the court stated that it intended to credit

Wisniewski for the time he spent in custody during the pendency of the case. The

state argued that because Wisniewski was already serving a sentence related to an

involuntary manslaughter conviction from Summit County stemming from a heroin

overdose, he would not be entitled to jail-time credit for the time spent in custody

awaiting trial in the instant case. The court stated that it would take the issue under

advisement and indicate its decision on jail-time credit in the sentencing journal

entry. In the October 20, 2020 sentencing journal entry, the court described

the sentence imposed on the involuntary manslaughter charge, but neglected to

include the sentence imposed on the drug possession charge. A separate journal

entry issued the same day read:

At the time of sentencing, the state opposed the court’s granting of jail- time credit to the defendant as he was incarcerated on another, unrelated case — Summit County Case No. CR-2017-09-3481-A (“Summit County Case”). The state relies on the decision of the Ohio Supreme Court in State v. Cupp,

,

, which held that: “A defendant is not entitled to jail time credit for pre- sentence detention time when held on bond if, during the same period of time, he is serving a sentence on an unrelated case.” Id. at ¶24. The court finds the state’s argument persuasive on this issue and awards defendant no jail credit on this case prior to today’s entry.

On November 13, 2020, Wisniewski appealed.

On April 20, 2021, this court sua sponte remanded the case to the trial

court to issue a nunc pro tunc sentencing entry to correct the omission of the

sentence on the drug possession charge. On April 30, 2021, the trial court issued a

nunc pro tunc entry correcting the error in its original sentencing journal entry.

Wisniewski presents three assignments of error for our review:

I. The evidence was insufficient to sustain a conviction for involuntary manslaughter through either predicate offense. The resulting conviction deprived appellant Wisniewski of procedural and substantive due process of law as guaranteed by the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.

II. Appellant Wisniewski’s conviction for involuntary manslaughter for drug trafficking or corrupting another with drugs is against the manifest weight of the evidence. This deprived appellant of due process of law as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Ohio Constitution.

III. The trial court erred in violation of Appellant’s right to equal protection or otherwise [erred] where it did not award credit for time served pending sentencing in Appellant’s Summit County Case.

Legal Analysis

I. Sufficiency of the Evidence

In Wisniewski’s first assignment of error, he argues that the state

presented insufficient evidence to sustain his involuntary manslaughter conviction.

Specifically, he argues the state failed to present sufficient evidence that Wisniewski

was guilty of either drug trafficking or corrupting another with drugs. Without

sufficient evidence of either of the possible predicate offenses for the involuntary

manslaughter charge, Wisniewski argues that the involuntary manslaughter

conviction should be vacated.

A sufficiency challenge requires a court to determine whether the

state has met its burden of production at trial and to consider not the credibility of

the evidence but whether, if credible, the evidence presented would sustain a

conviction. State v. Thompkins,

,

(1997).

The relevant inquiry is whether, after viewing the evidence in a light most favorable

to the prosecution, any rational trier of fact could have found the essential elements

of the crime proven beyond a reasonable doubt. State v. Jenks,

,

(1991), citing Jackson v. Virginia,

,

,

(1979). “Proof of guilt may be made by circumstantial evidence, real evidence,

and direct evidence, or any combination of the three, and all three have equal

probative value.” State v. Rodano,

,

, ¶ 35 (8th

Dist.), quoting State v. Zadar, 8th Dist. Cuyahoga No. 94698,

, ¶ 18.

Although circumstantial evidence and direct evidence have obvious differences,

those differences are irrelevant to the probative value of the evidence, and

circumstantial evidence carries the same weight as direct evidence.

citing State

v. Cassano, 8th Dist. Cuyahoga No. 97228,

. Further,

circumstantial evidence is not only sufficient, “‘but may also be more certain,

satisfying, and persuasive than direct evidence.’”

quoting State v. Hawthorne,

8th Dist. Cuyahoga No. 96496,

, quoting Michalic v. Cleveland

Tankers, Inc.,

, 330

,

(1960).

Wisniewski was charged with involuntary manslaughter in violation

of R.C. 2903.04(A), which provides that “no person shall cause the death of another

* * * as a proximate result of the offender’s committing or attempting to commit a

felony.” In the indictment, the involuntary manslaughter charge alleged that

Heaton’s death was the proximate result of Wisniewski committing or attempting to

commit the felony offense of corrupting another with drugs and/or drug trafficking.

Wisniewski was also charged separately with corrupting another with drugs in

violation of R.C. 2925.02(A)(3) and drug trafficking in violation of R.C.

2925.03(A)(1). The state argued at trial, and the court in announcing its verdict agreed, that the evidence showed that Wisniewski committed both predicate

offenses.

R.C. 2925.02(A)(3), corrupting another with drugs, provides that no

person shall knowingly “[b]y any means, administer or furnish to another or induce

or cause another to use a controlled substance, and thereby cause serious physical

harm to the other person, or cause the other person to become drug dependent.”

R.C. 2925.02(B) provides that division (A)(3) “does not apply to manufacturers,

wholesalers, licensed health professionals authorized to prescribe drugs, owners of

pharmacies, and other persons whose conduct is in accordance” with various

specific chapters of the Revised Code.

R.C. 2925.03(A)(1), drug trafficking, provides that no person shall

knowingly “[s]ell or offer to sell a controlled substance or a controlled substance

analog.” Pursuant to R.C. 2925.01(A), the word “sale” in association with drug

trafficking shall be given the same meaning as “sale” in R.C. 3719.01(U), which

“includes delivery, barter, exchange, transfer, or gift * * *.” Like the corrupting

another with drugs statute, R.C. 2925.03(B)(1) provides that R.C. 2925.03 does not

apply to “manufacturers, licensed health professionals authorized to prescribe

drugs, pharmacists, owners of pharmacies, and other persons whose conduct is in

accordance with” various specific chapters of the Revised Code.

Wisniewski relies on the exemptions in R.C. 2925.02(B) and

2925.03(B)(1) and argues that the state was required to prove that he was not a

licensed health professional or otherwise. Wisniewski argues that because a defendant’s belonging to one of the excluded groups in the statutory exemptions is

not an affirmative defense, it was instead an essential element of the offenses that

the state of Ohio had to prove beyond a reasonable doubt at trial. This argument

fundamentally misinterprets the relevant statutes.

The exemptions in R.C. 2925.02(B) and 2925.03(B)(1) provide that

the offenses of corrupting another with drugs and drug trafficking do not apply to

certain licensed professionals who are complying with applicable statutory or

regulatory requirements. State v. Nucklos,

,

,

. The Ohio Supreme Court in Nucklos held that when the state

prosecutes an otherwise exempt licensed health professional for one of these

offenses, noncompliance with applicable statutory or regulatory requirements is an

essential element of the offense that the state must prove beyond a reasonable

doubt, and not an affirmative defense.

Wisniewski relies on Nucklos for his

assertion that proving whether a defendant falls into one of the exempt categories is

an element of the offense and not an affirmative defense. This reliance is misplaced.

In Nucklos, because the defendant was a licensed health professional pursuant to

R.C. 2925.03(B)(1), the state was required to prove that Nucklos had engaged in

statutory or regulatory noncompliance in order to secure a drug trafficking

conviction. The court in Nucklos determined that the defendant was not required

to establish that he had complied with relevant statutory or regulatory

requirements; rather, the state was required to prove his noncompliance beyond a

reasonable doubt.

Nowhere in Nucklos, or any other case reviewed by this court, has the Ohio Supreme Court interpreted either the drug trafficking or corrupting

another with drugs statutes to require the state to prove that the defendant is not a

licensed health professional in order to prosecute them for those offenses. This

interpretation reads an additional element into both offenses, and we decline to

adopt this interpretation here. Further, heroin is not a legal drug; therefore, the

statutory exemption in R.C. 2925.03(B)(1) is inapplicable. R.C. 2925.03(C)(6).

Our review of the record shows that the state presented sufficient

evidence of the essential elements of each offense. Here, with respect to corrupting

another with drugs, the state was required to prove beyond a reasonable doubt that

Wisniewski knowingly, by any means, furnished heroin to Heaton and thereby

caused him serious physical harm. While Wisniewski is correct that there is no

direct evidence that Wisniewski provided Heaton with the heroin he ingested

immediately prior to his death, there is ample circumstantial evidence.

The state presented evidence that Heaton was buying drugs from a

long-time friend who lived in his neighborhood in the form of testimony from

Heaton’s sister. The state also presented evidence that Heaton and Wisniewski were

in regular phone contact, including a phone call the day before Heaton’s death.

Evidence found at the scene included three similar packets of magazine-like paper.

Two of these packets were unopened, contained heroin, and tested positive for

Wisniewski’s DNA. Wisniewski conceded that the packets — but not the heroin

inside — came from him. The third packet was opened, had creases showing that it

had been folded in the same way as the other packets, and contained heroin residue. No DNA testing had been done on the third packet. This evidence, when viewed in

a light most favorable to the state, established that Wisniewski provided Heaton

with heroin, satisfying the first element of the corrupting another with drugs charge.

The corrupting another with drugs offense also required the state to

establish that by furnishing the victim with drugs, the defendant caused the victim

serious physical harm. R.C. 2925.02(A)(3). Here, the state presented evidence that

Heaton died as a result of acute heroin toxicity. This fatal overdose obviously

constitutes serious physical harm. Additionally, this court has previously held that

heroin carries a substantial risk of overdose and death, and is generally a serious

and deadly drug that causes physical harm every time it is administered. State v.

Price,

,

, ¶ 54 (8th Dist.). Therefore, the state

presented sufficient evidence to support the charge of corrupting another with

drugs.

With respect to the drug trafficking charge, the state was required to

prove beyond a reasonable doubt that Wisniewski knowingly sold or offered to sell

heroin to Heaton. In addition to the physical evidence described above, the state

presented evidence that Heaton had known the person he was purchasing drugs

from for years and lived in the same neighborhood as this person; likewise, the

evidence at trial established that Wisniewski had known him for years and lived

around the corner from him. Taking into consideration Wisniewski’s stipulation

that he was “the source of the packaging material” that contained the heroin, and

viewing all of the evidence in the light most favorable to the state, it is reasonable to infer through circumstantial evidence that Wisniewski engaged in drug trafficking.

Therefore, the state presented sufficient evidence to support the drug trafficking

charge.

Having determined that both of the possible predicate offenses for

involuntary manslaughter were supported by sufficient evidence, we also conclude

that the involuntary manslaughter charge was supported by sufficient evidence. To

establish that Heaton committed involuntary manslaughter, the state was required

to prove beyond a reasonable doubt that he caused Heaton’s death as a proximate

result of either corrupting another with drugs or drug trafficking.

Wisniewski argues that the evidence was insufficient to show that

Heaton’s death was the proximate result of either offense here. Specifically, he

argues that Heaton’s abuse of prescription pills could have caused his death. We

disagree. The deputy medical examiner, Dolinak, testified that the cause of Heaton’s

death was acute heroin, clonazepam, amphetamine, and fluoxetine toxicity, and that

the manner of death was accidental. Although Dolinak testified that Heaton

appeared to be abusing prescription drugs, he also testified that even without the

other drugs, the heroin toxicity would have been sufficient to result in Heaton’s

death. Further, he testified that the specific levels of heroin metabolites found in

Heaton’s blood were consistent with levels he has seen in fatal heroin overdoses, and

that other characteristics of Heaton’s body were characteristic of fatal heroin

overdoses. Therefore, the state presented sufficient evidence of proximate causation

required for the involuntary manslaughter charge. For the foregoing reasons, we find that Wisniewski’s convictions were supported by sufficient evidence.

Therefore, we overrule his first assignment of error.

II. Manifest Weight of the Evidence

In his second assignment of error, Wisniewski argues that his

convictions were against the manifest weight of the evidence. Unlike a challenge to

the sufficiency of the evidence, a manifest weight challenge attacks the quality of the

evidence and questions whether the state met its burden of persuasion at trial. State

v. Hill, 8th Dist. Cuyahoga No. 99819,

, citing State v. Bowden,

8th Dist. Cuyahoga No. 92266,

, ¶ 13. In our manifest weight

review of a bench trial verdict, we recognize that the trial court is serving as the

factfinder. Accordingly, to warrant reversal from a bench trial under a manifest

weight of the evidence claim, this court must review the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of the witnesses, and

determine whether in resolving conflicts in evidence, the trial court clearly lost its

way and created such a manifest miscarriage of justice that the judgment must be

reversed and a new trial ordered. State v. Bell, 8th Dist. Cuyahoga No. 106842,

, citing State v. Strickland,

, 2009-Ohio-

3906,

(8th Dist.)

In support of his manifest weight argument, Wisniewski argues that

Heaton was suicidal and abused multiple prescription opiates. He emphasizes both

the presence of other drugs in Heaton’s system and the trial court’s reference to the

other drugs in rendering its verdict. Wisniewski also reiterates his arguments regarding the alleged dearth of evidence that he actually provided Heaton with

heroin. To the extent that Wisniewski reiterates his arguments regarding whether

or not he actually provided Heaton with heroin, we find these arguments to be

without merit for the reasons articulated in our discussion above.

Wisniewski characterizes Heaton’s death as an opiate overdose and

not specifically a heroin overdose. He points to one particular exchange with

Dolinak, in which Dolinak was asked, with respect to one particular compound, if

there was any way of telling if that compound was from heroin or from other opiates,

and Dolinak confirmed that there was not. Viewing this exchange in the greater

context of Dolinak’s testimony, however, we are not persuaded by Wisniewski’s

argument. Dolinak testified that heroin was the primary cause of Heaton’s death as

follows:

DEFENSE: As you stated, the cause of death was acute heroin, clonazepam, amphetamine, and fluoxetine toxicity, correct?

DOLINAK: That’s right.

DEFENSE: Can you say for sure if any one of those caused the death more than the other?

DOLINAK: I can single out the heroin as being the main factor here, and the others just provided some contributory toxicity.

DEFENSE: So can you say for sure that without the other drugs he would have died?

DOLINAK: I think so, yes.

DEFENSE: You can say that positively?

DOLINAK: Yes. While Wisniewski asserts that Heaton still might have died even if he had not taken

heroin, nothing in the record supports this assertion. Likewise, the possibility that

Heaton may have committed suicide is undermined by the record and ultimately has

no bearing on our manifest weight analysis. The manner of death was determined

to be accidental, and even if Heaton had intended to commit suicide, he did so using

heroin he purchased from Wisniewski. As stated above, it was foreseeable that

heroin would cause serious physical harm or death. Because this was not the

exceptional case in which the trial court lost its way, we conclude that Wisniewski’s

convictions are not against the manifest weight of the evidence. Wisniewski’s

second assignment of error is overruled.

III. Jail-Time Credit

In his third assignment of error, Wisniewski argues that the trial court

erred in failing to award him credit for time served pending his sentence in a

separate case from Summit County.

This court reviews the trial court’s determination as to the amount of

jail-time credit under the “clearly and convincingly” contrary-to-law standard. State

v. Claggett, 8th Dist. Cuyahoga No. 108742,

, citing State v.

Perkins, 11th Dist. Lake Nos. 2018-L-084 and 2018-L-098,

.

It is Wisniewski’s burden to establish that the trial court erred in its award of jail-

time credit.

citing State v. Haworth, 11th Dist. Portage Nos. 2019-P-0047, 2019-

P-0048, and 2019-P-0049,

, ¶ 29, citing State v. Corpening, 2019-

Ohio-4833,

, ¶ 27 (11th Dist.) R.C. 2967.191(A) provides, in relevant part, that the department of

rehabilitation and correction “shall reduce the 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.”

On March 7, 2018, Wisniewski was sentenced in Summit County Case

No. CR-2017-09-3481 to eight years in prison for charges unrelated to the instant

case. At that time, Wisniewski was credited with 149 days of jail-time credit for the

time in jail awaiting trial and sentence in Summit County.

Wisniewski was indicted in the instant case on September 17, 2018,

at which point he was serving his sentence for the Summit County case. On October

20, 2020, Wisniewski was sentenced in this case to 11 years, to be served

concurrently with the Summit County case, with no credit for time served. Because

the sentence in this case was longer than the Summit County sentence, the 11-year

sentence in this case subsumed the Summit County sentence. Wisniewski argues

that this improperly eliminated his 149 days of jail-time credit.

The state correctly points out that Wisniewski is not entitled to jail-

time credit for time served awaiting trial in the instant case because he was

simultaneously serving a sentence on an unrelated case. State v. Cupp,

,

,

. Wisniewski is not arguing that he

is entitled to jail-time credit for the time between his September 2018 indictment

and October 2020 sentence, however. Instead, he is arguing that he should still be entitled to the 149 days of jail-time credit prior to being sentenced in his Summit

County case.

The practice of awarding jail-time credit, although now covered by

state statute, has its roots in the Equal Protection Clauses of the Ohio and United

States Constitutions. State v. Fugate,

,

,

. Because the Equal Protection Clause does not tolerate disparate

treatment of defendants based on their economic status, the United States Supreme

Court has repeatedly struck down rules and practices that discriminate against

defendants based solely on their ability to pay fines and fees.

Wisniewski relies heavily on Fugate, in which the Ohio Supreme

Court addressed the application of jail-time credit where a defendant is sentenced

to concurrent as opposed to consecutive sentences:

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.

Fugate at ¶ 22. In Fugate, however, the defendant was held on each of the charges

before his sentencing, and thus was entitled to a reduction of each concurrent prison

term. Wisniewski’s case is more akin to State ex rel. Rankin v. Mohr, in

which the Ohio Supreme Court found that the Ohio Department of Rehabilitation

and Correction “had no duty to reduce [a prisoner’s] 13-year sentence by the number

of days that the prisoner was confined for other crimes before he received the 13-

year sentence.” State ex rel. Rankin v. Mohr,

,

,

, ¶ 2. The court went on to say that the fact that the 13-year sentence

was ordered to be served concurrently with his prior sentences did not affect the

determination that the prisoner was not entitled to a reduction of his 13-year

sentence.

Therefore, applying this rationale to Wisniewski, neither the fact that

he served 149 days for his Summit County crimes before he received his 11-year

sentence in the instant case nor the fact that the trial court here ordered his 11-year

sentence to be served concurrently with his eight-year Summit County sentence

does not entitle Wisniewski to a reduction of his 11-year sentence. Further, the court

in Rankin specifically found that the holding in Fugate did not require a different

result because in Fugate, the defendant was held on each of the charges before his

sentencing, and he was thus entitled to a reduction of each concurrent prison term.

For these reasons, the trial court appropriately declined to award Wisniewski

jail-time credit. Wisniewski’s third assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded to

the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

MARY EILEEN KILBANE, PRESIDING JUDGE

LISA B. FORBES, J., and EMANUELLA D. GROVES, J., CONCUR