STATE OF OHIO v. EUGENE W. GALL
Appellate Case Nos. 26114 and 26115
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
Rendered on the 29th day of April, 2016.
[Cite as State v. Gall, 2016-Ohio-2748.]
Attorney for Plaintiff-Appellee
AMY E. FERGUSON, Atty. Reg. No. 0088397, 130 West Second Street, Suite 1818, Dayton, Ohio 45402
Attorney for Defendant-Appellant
{¶ 1} Defendant-appellant, Eugene W. Gall, appeals from the decision of the Montgomery County Court of Common Pleas declining to award him any days of jail-time credit. For the reasons outlined below, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} This matter dates back to the late 1970’s when Gall was convicted of multiple felony offenses in several different jurisdictions. In October 1978, Gall was convicted and sentenced to death in Boone County, Kentucky, after he was found guilty of raping and murdering a 12-year-old girl. Shortly thereafter, Gall pled guilty in Grant County, Kentucky, to charges of attempted murder and wanton endangerment. As a result of that conviction, Gall received an aggregate 10-year prison sentence that was ordered to run concurrently with his death sentence.
{¶ 3} While his Kentucky cases were pending, Gall was indicted in Montgomery County, Ohio, for the rape and kidnapping of a 15-year-old girl in Case No. 78-CR-602. Following his Kentucky convictions, Gall was extradited to Ohio to be tried for those offenses. Thereafter, Gall was also indicted in Montgomery County for the kidnapping, rape, and aggravated murder of a 14-year-old girl in Case No. 79-CR-84. On May 18, 1979, Gall pled guilty as charged in both cases and was sentenced to an aggregate prison term of 14-50 years in Case No. 78-CR-602 and life in prison in Case No. 79-CR-84. The sentences were ordered to run consecutively to each other and consecutively to the sentences Gall received in Kentucky. The trial court did not make any finding regarding
{¶ 4} After receiving his Montgomery County sentences, Gall was tried and convicted for the rape, attempted rape, and aggravated robbery of three children in Greene County, Ohio. Following that conviction, the trial court imposed an aggregate prison term of 19-65 years that was ordered to run consecutively to the sentences he received in Montgomery County and Kentucky. Gall was then sent back to Kentucky to begin serving his sentences there.
{¶ 5} Approximately 20 years later, on October 30, 2000, the United States Sixth Circuit Court of Appeals granted a writ of habeas corpus filed by Gall. In doing so, the Sixth Circuit determined that pervasive errors at trial led to an unconstitutional conviction in the Boone County case for which Gall was sentenced to death. Gall v. Parker, 231 F.3d 265 (6th Cir.2000). The Sixth Circuit further determined that double jeopardy prevented Kentucky from retrying him on the Boone County charges. Id. Thereafter, Gall’s Boone County conviction was nullified and directed to be expunged from his record. Gall v. Scroggy, E.D. Ky. No. 2:87-56-DCR, 2008 WL 9463883 (Dec. 4, 2008).
{¶ 6} On November 13, 2001, Gall was extradited to Ohio to begin serving his Montgomery County sentences. According to the State, on September 27, 2013, the Ohio Bureau of Sentence Computation (OBSC) notified the State that it had calculated Gall’s jail-time credit and credited him with 5,807 days as a result of the time he served in Kentucky on the invalidated Boone County conviction. Specifically, the State alleges that the OBSC gave Gall jail-time credit from December 1985, the date Gall completed his 10-year sentence for the Grant County offenses, through November 13, 2001. Although the OBSC’s notice of jail-time credit is not part of the record, Gall does not
{¶ 7} In response to the OBSC’s notice, on November 27, 2013, the State filed a motion in Montgomery County Case Nos. 78-CR-602 and 79-CR-84 for an order requesting the trial court to properly calculate the amount of jail-time credit Gall should be awarded, if any. In the motion, the State argued that it is the responsibility of the trial court, not the OBSC, to calculate jail-time credit. The State also argued that the OBSC’s calculation was incorrect because
{¶ 8} Gall now appeals from the trial court’s decision awarding him no days of jail-time credit, raising three assignments of error for review.
First Assignment of Error
{¶ 9} Gall’s First Assignment of Error is as follows:
A RECALCULATION OF JAIL TIME CREDIT SHOULD HAVE NEVER OCCURRED.
{¶ 10} Under his First Assignment of Error, Gall contends the OBSC correctly calculated his jail-time credit at 5,807 days and that the trial court erred in recalculating
{¶ 11} “
The 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, confinement for examination to determine the prisoner’s competence to stand trial or sanity, confinement while awaiting transportation to the place where the prisoner is to serve the prisoner’s prison term * * *.
(Emphasis added.)
{¶ 12} “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.” Fugate, 117 Ohio St.3d 261, at ¶ 9. Section (A) of OAC 5120-2-04 provides language similar to that of
The department of rehabilitation and correction shall reduce the minimum and maximum sentence, where applicable, the definite sentence or the stated prison term of an offender by the total number of days that the
offender was confined for any reason arising out of the offense for which he was convicted and sentenced, including confinement in lieu of bail while awaiting trial, confinement for examination to determine his competence to stand trial or sanity, confinement in a community-based correctional facility and program or district community-based correctional facility and program, where applicable, and confinement while awaiting transportation to the place where he is to serve his sentence.
(Emphasis added.)
{¶ 13} Section (I) of OAC 5120-2-04 also provides that:
If an offender receives a sentence, or stated prison term to this department consecutive to or concurrent with a sentence in an institution in another state or a federal institution, no action will be taken towards considering him for parole or otherwise terminating his sentence, or stated prison term until the offender is either electronically or physically committed to the custody of this department. At that time, the offender’s minimum and maximum, definite sentence or stated prison term shall be reduced pursuant to this rule by the total number of days confined for the crime as certified by the court and the sheriff.
(Emphasis added.)
{¶ 14} “Although the [department of rehabilitation and correction] has a mandatory duty pursuant to
{¶ 15} “As this court has previously stated, by its very terms
{¶ 16} In support of his claim that he should receive jail-time credit as calculated by the OBSC, Gall cites two cases that were decided when the original version of
The Adult Parole Authority upon proper certification by the trial judge of time served, in the journal entry of sentence and upon recommendation of the trial judge may reduce the minimum sentence of a prisoner by the number of days the prisoner was confined at the county jail or workhouse or confined at a state facility for a presentence examination * * * after a verdict or plea of guilty and before commitment.
Workman v. Cardwell, 338 F.Supp. 893, 901 (N.D.Ohio 1972).
{¶ 17} Noticeably absent from this version of the statute is the “arising out of the offense” language that is included in the current version. However, effective March 23, 1973,
{¶ 18} The first case cited by Gall, McNary v. Green, 12 Ohio St.2d 10, 230 N.E.2d 649 (1967), held that “time served under a conviction which is subsequently vacated and not reimposed should be credited to a prior existing sentence which was not running during the period the accused was in custody under the vacated sentence.” Id. at 12. In McNary, the defendant was convicted for grand larceny in 1957, sentenced to prison, and then released on parole in 1959. Id. at 10-11. Two years later, in 1961, the defendant was convicted for a second grand larceny offense, declared a parole violator, and sent back to prison. Id. at 11. Thereafter, the defendant was released on parole two more times and violated his parole each time.
During the time defendant was in custody under his invalid conviction, he could have been at large on parole for his 1957 conviction with his sentence running thereon, or if he had violated his parole, he could have been in custody serving his time on the 1957 conviction. In either event, his 1957 sentence would have been running and by now would have expired.
Id. at 12.
{¶ 20} In following McNary, the Supreme Court stated in State ex rel. Moon v. Ohio Adult Parole Auth., 22 Ohio St.2d 29, 257 N.E.2d 740 (1970) that there is a “general disinclination of this state to permit a criminal to be incarcerated for a period of time for which he receives no credit.” Id. at 31. The court in Moon also cited the original version of
In
R.C. 2967.191 , the General Assembly has permitted the Adult Parole Authority to reduce any sentence by the number of days the criminal was incarcerated in a county jail or state processing facility subsequent to a guilty verdict or guilty plea, but prior to the commencement of the sentence. In [McNary] this court held that time served under a sentence subsequently vacated must be credited to a prior existing sentence.
Id.
{¶ 22} In following McNary, the Seventh District Court of Appeals held that the defendant in Preston should be given credit for the time he served on the invalid charge and said credit should go toward the armed robbery sentence. Id. at 335. Specifically, the court stated that: “when a person has served time in a penal institution on an invalid charge as a habitual criminal, time served in the penal institution on such invalid charge should be credited to the pending valid charge whose sentence was vacated and set aside pursuant [to statute].” Id.
{¶ 23} McNary and Preston are distinguishable from the present case in that the defendants in those cases requested jail-time credit for time served on unrelated sentences that were imposed by Ohio courts, not courts of another state. In addition, these cases were decided under the original version of
{¶ 24} After
{¶ 25} In Dawn, the defendant was convicted of burglary in Clermont County, Ohio, and was imprisoned for the offense in 1971 and 1972. Id. at 43. In November 1972, the burglary conviction was reversed on appeal and the defendant was released from prison. Id. Two years later, in 1974, the defendant was convicted of stealing two paintings in Hamilton County, Ohio, and was sentenced to serve up to five years in prison. Id. At sentencing, the defendant argued that he should be able to receive credit on his sentence in Hamilton County for his time served on the invalidated burglary charge. Id.
{¶ 26} The trial court denied the defendant any such credit and the First District Court of Appeals affirmed the decision, holding that
{¶ 27} Similarly, in State v. Jones, 6th Dist. Wood No. WD-98-013, 1998 WL 352296 (June 26, 1998), a defendant committed multiple crimes in Wood County, Ohio, in 1985 and was sentenced to serve an indefinite prison term of up to five years. Id. at *1. The defendant was released after five years and was thereafter convicted of another offense in Lucas County, Ohio, for which he began serving a prison term. Id. At some point in time, the trial court in Wood County determined that the defendant’s 1985 sentence was impermissible by statute, and amended it to be a definite term of two years. Id. Since the defendant had already served five years, he requested the trial court in Wood County to credit the extra time he served in prison toward the sentence he was currently serving in Lucas County. Id. The trial court, however, refused to credit the extra time served and the defendant appealed. In relying on
{¶ 28} Also, in State v. Stewart, 8th Dist. Cuyahoga No. 92790, 2009-Ohio-5700, a defendant convicted of possession of heroin requested jail-time credit for time served on a prior, unrelated 11-month prison sentence that was modified and eliminated on appeal due to delayed execution of the sentence. The trial court denied the defendant any credit for time served on the prior sentence even though it was eliminated. Id. at ¶ 4. The Eighth District Court of Appeals affirmed the trial court’s decision based on
{¶ 29} While the facts of Dawn, Jones, and Stewart are not identical to the facts of the instant case, they nevertheless support the notion that the invalidation of Gall’s prior, unrelated sentence in Kentucky does not render the time served for that invalid sentence creditable under
{¶ 30} It is also important to note that “[t]ime served pursuant to an unrelated prior conviction does not arise out of a subsequent conviction even though a detainer is in effect during the period of incarceration.” State ex rel. Larkins v. Ohio Adult Parole Auth., 10th Dist. Franklin No. 89AP-1348, 1991 WL 16140, * 1 (Feb. 8, 1991). In other words, the fact that Ohio had a detainer in effect while Gall was serving his sentence in Kentucky, does not mean that the Kentucky sentence arose from the Ohio offenses for purposes of
{¶ 31} A distinguishable scenario with respect to detainers is demonstrated in State v. Walker, 2d Dist. Montgomery No. 16599, 1998 WL 214604 (May 1, 1998). In Walker, the defendant was already serving a prison sentence in Montana when he was sentenced for crimes committed in Ohio. Id. at *1. The Ohio trial court ordered the defendant’s sentence to be served consecutive to Montana’s sentence, issued a detainer,
{¶ 32} Thereafter, the defendant in Walker was returned to Ohio where he filed a request for jail-time credit for the three-year period of time in which he spent in Montana awaiting to be returned to Ohio during the habeas proceedings. Id. The trial court denied his request, and we reversed that decision on the basis that the defendant’s continued confinement in Montana was not the result of the Montana convictions, but due to the detainer that was in place while he was challenging the detainer, which arose from his Ohio convictions. Id. at *2.
{¶ 33} The present case is distinguishable from Walker because Gall was not released on parole in Kentucky nor was he being held in confinement solely due to Ohio’s detainer. Rather, during the 5,807 days at issue, Gall was in prison serving his Kentucky conviction that was unrelated to his Ohio offenses. The fact that he challenged the Kentucky conviction and ultimately succeeded in having it vacated does not mean that his time served in Kentucky arose from the Ohio offenses simply because there was an Ohio detainer in place. Rather, the 5,807 days he was confined in Kentucky arose solely from his invalidated Kentucky conviction. Therefore, pursuant to
{¶ 34} In reaching this decision, we note that there is a body of federal case law
{¶ 35} However, the foregoing case law is distinguishable in that it involves convictions imposed by courts of the same sovereign. In addition, “the decisions of federal courts constitute persuasive authority only and are not binding on this court.” State v. Prom, 12th Dist. Butler No. CA2004-07-174, 2005-Ohio-2272, ¶ 22, citing State v. Burnett, 93 Ohio St.3d 419, 422-424, 755 N.E.2d 857 (2001). “ ‘There is no rule requiring the Supreme Court of Ohio, in its interpretation of the statutory law of Ohio, to follow the decisions of the Supreme Court of the United States under any and all circumstances[.]’ ” State v. Huffman, 131 Ohio St. 27, 39-40, 1 N.E.2d 313 (1936), quoting McNary v. State, 128 Ohio St. 497, 191 N.E. 733 (1934), paragraph three of the syllabus. Accord Sacksteder v. Senney, 2d Dist. Montgomery No. 24993, 2012-Ohio-4452, ¶ 38 (“we are not bound by decisions of the United States Supreme Court that do not involve federal statutory and constitutional law”); Reygaert v. Palmer, 2d Dist. Montgomery No. 9296, 1986 WL 1340, *4 (Jan. 29, 1986) (“this court is not bound by either federal or foreign state case law”).
{¶ 36} Accordingly, pursuant to the terms of
{¶ 37} Gall’s First Assignment of Error is overruled.
Second Assignment of Error
{¶ 38} Gall’s Second Assignment of Error is as follows:
THE REMOVAL OF 5,807 DAYS OF JAIL TIME CREDIT VIOLATED DOUBLE JEOPARDY, AND MR. GALL’S RIGHT TO DUE PROCESS UNDER THE 6TH AND 14TH AMENDMENTS.
{¶ 39} Under his Second Assignment of Error, Gall contends he was denied due process of law because he did not receive the State’s jail-time credit motion, which resulted in him being deprived of notice of the motion, an opportunity to submit a response to the motion, the ability to confer with legal counsel regarding the motion, and a hearing on the matter. In addition, Gall contends his right to be protected from double jeopardy was violated given that his Kentucky sentence was invalidated. We find no merit in either of Gall’s claims.
{¶ 40} “Due process of law, as guaranteed both by Section 1 of the Fourteenth Amendment to the United States Constitution and by Article I, Section 16 of the Ohio Constitution, encompasses, at a minimum, notice and an opportunity to be heard.” State v. Crews, 179 Ohio App.3d 521, 2008-Ohio-6230, 902 N.E.2d 566, ¶ 9 (2d Dist.), citing State v. Edwards, 157 Ohio St. 175, 178, 105 N.E.2d 259 (1952). “ ‘A criminal defendant’s right to counsel arises out of the [S]ixth [A]mendment, and includes the right to appointed counsel when necessary.’ ” State ex rel. Jenkins v. Stern, 33 Ohio St.3d 108, 110, 515 N.E.2d 928 (1987), quoting Potashnick v. Port City Constr. Co., 609 F.2d
{¶ 41} We have held that due process of law entitles a defendant to a hearing on his objection that he or she is entitled to additional jail-time credit. State v. Ayers, 2d Dist. Montgomery No. 25489, 2013-Ohio-4234, ¶ 8, citing State v. Nunez, 2d Dist. Montgomery No. 21495, 2007-Ohio-1054, ¶ 20. However, “a trial court is not required to conduct an evidentiary hearing on the trial court’s factual determination as to the number of days of confinement that a defendant is entitled to have credited toward his sentence absent a sufficient objection by a defendant to the court’s jail time credit order.” (Emphasis added) Nagy, 2d Dist. Greene No. 2003CA21, 2003-Ohio-6903 at ¶ 21. Furthermore, where a trial court possesses the necessary facts to calculate jail- time credit, a hearing is not required. Ayers at ¶ 12. A hearing is only required “where the court does not have the necessary information to calculate jail credit.” Id.
{¶ 42} As mentioned under the First Assignment of Error, “jail time credit is not appropriate [under
{¶ 44} Following these submissions, Gall then filed pro se objections to the State’s motion on January 7, 2014. Gall’s objections amounted to various legal arguments, including that the court did not have jurisdiction to calculate jail-time credit, the State lacked standing to file its motion requesting a jail-time credit calculation, that res judicata barred the State from filing the motion, and that he was entitled to 5,807 days of jail-time credit because the Kentucky death sentence was invalidated. However, Gall did not argue that under
{¶ 45} After Gall filed his objections and other various motions, the trial court held a hearing on January 28, 2014, during which Gall was represented by appointed counsel. At the inception of the hearing, the court briefly advised the parties that the defendant’s jail-time credit objections had been denied. Gall’s counsel advised that he was not aware that the State had filed a jail-time credit motion since he was not appointed as counsel at that time. Gall’s counsel then advised the court that he was going to review
{¶ 46} Having reviewed the record, we find that even if Gall did not initially receive notice of the State’s jail-time credit motion, he eventually received the motion on December 4, 2013, and responded to it through his pro se objections that were denied by the trial court. The record also indicates that Gall had the opportunity to discuss the State‘s motion and his objections with his appointed counsel, and that his counsel indicated that he would review the matter. The trial court also gave Gall’s counsel an opportunity to file a motion for reconsideration on the jail-time credit issue, but no such motion was ever filed. Based on these facts, we fail to see how Gall was deprived of notice, an opportunity to be heard, or his right to counsel.
{¶ 47} We also find no error in the trial court’s failure to hold a hearing on Gall’s objections, as there was sufficient information in the record for the trial court to calculate jail-time credit without a hearing. Like Ayers, the record indicates that the prison time Gall served in Kentucky was for an unrelated case, which cannot be credited towards his Ohio sentences under the terms of
{¶ 48} Gall’s claim asserting a double jeopardy violation also lacks merit. “The
{¶ 49} Gall’s Second Assignment of Error is overruled.
Third Assignment of Error
{¶ 50} Gall’s Third Assignment of Error is as follows:
THE STATE WAS BARRED BY RES JUDICATA FROM FILING TO RECALCULATE JAIL TIME CREDIT AND THUS HAD NO STANDING.
{¶ 51} Under his Third Assignment of Error, Gall contends that res judicata bars the trial court from recalculating his jail-time credit because all issues regarding sentencing were addressed in the termination entries from 1979, and the State failed to raise the issue of jail-time credit when his Montgomery County convictions were first appealed. In other words, Gall believes the State was improperly permitted to relitigate the issue of jail-time credit by filing its jail-time credit motion. We disagree.
{¶ 52} “ ‘Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any
{¶ 53} In State v. Coyle, 2d Dist. Montgomery No. 23450, 2010-Ohio-2130, we concluded that res judicata does not apply when the trial court did not specify the number of days of jail-time credit in its termination entry. Id. at ¶ 10. We stated that:
The number of days Defendant had spent in confinement for purpose of any reduction of his sentence to which Defendant would be entitled pursuant to
R.C. 2967.191 was not a point or fact in issue in the prior criminal action between these same parties that was terminated by the November 30, 1998 judgment of conviction and sentence. Rather, it was a matter collateral to the judgment of conviction and sentence the court journalized. Furthermore, the court therein did not pass upon whether Defendant had spent any time at all in confinement. The court instead omitted any finding regarding that point or fact when it left blank the open space in its preprinted “Termination Entry.” Had the court entered “0” or “none” before the word “days,” then Defendant‘s current claim would be barred by res judicata, but the court made no such finding. Defendant’s claim for jail-time credit, or the number of days he spent in confinement for purposes ofR.C. 2967.191 , in the motion he filed on March 16, 2009, is therefore not barred by res judicata.
{¶ 54} The present case is analogous to Coyle in that the trial court did not make any finding with respect to jail-time credit at sentencing and left a blank space on the termination entries where the court was supposed to indicate the amount of jail-time credit to be applied. Accordingly, we find no merit to Gall’s claim that res judicata prevented the State from requesting the trial court to calculate his jail-time credit.
{¶ 55} Gall’s Third Assignment of Error is overruled.
Conclusion
{¶ 56} Having overruled all three of Gall’s assignments of error, the judgment of the trial court is affirmed.
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HALL, J., concurs.
FROELICH, J., concurring:
{¶ 57} As noted in the main opinion, several federal courts have held that when there are multiple consecutive sentences imposed at separate times, upon the invalidation of the earlier sentence, the second, valid consecutive sentence is deemed to run from the date it was imposed. See, e.g., United States ex rel. McKee v. Maroney, 264 F.Supp. 684, 688 (M.D.Pa.1967) (if a person is serving a void sentence, and is sentenced on another charge to run consecutive to the void sentence, he should be credited for the time served under the void sentence from the date of the imposition of the valid sentence); Johnson v. Henderson, 455 F.2d 983 (5th Cir.1972) (where defendant served one third of 10-year sentence, was paroled, then was convicted of burglary for
{¶ 58} In Sancinella v. Henderson, 380 F.Supp. 1393 (N.D.Ga.1974), affirmed, 502 F.2d 784 (5th Cir.1974), the Appellant argued that he should receive credit for time served on a conviction that had been vacated on appeal. The Appellant was sentenced for conspiracy in January of 1964 to twelve years in prison; that conviction was reversed on appeal in August 1964. He was later (December 1964) indicted for a different conspiracy and in August of 1967 was sentenced to thirteen years in prison. The court examined the indictments and found it was “clear that the [second] conspiracy * * * did not overlap with the [first, overturned] conspiracy * * * and, hence, relates to a different violation of the United States Code.” Id. at 1394. The trial court reviewed 18 U.S.C. § 3568, which provided, in part, that “[t]he Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts, for which sentence was imposed” (emphasis added) and held that the time spent on the vacated sentence was not spent “in connection with the first offense” and denied credit. Id. at 1395.
{¶ 59} Regardless of the “in connection with” language of 18 U.S.C. § 3568, the Sancinella court went on to note that “even if the offenses are technically unrelated, credit is allowed on a subsequent sentence for time served on invalid sentence when service of
{¶ 60} In Meadows, while the defendant was on parole, he was arrested for a Dyer Act (interstate transportation of a stolen motor vehicle) offense; a parole violation warrant was issued, but not executed. He was convicted and sentenced on the Dyer Act charge, but that conviction was reversed and the charge was dismissed. On the same day as the reversal, the parole violation warrant was executed and the defendant began serving the time remaining on his first sentence. In a habeas petition, the defendant sought credit for the time spent in custody on the invalidated Dyer Act conviction.
{¶ 61} The Fifth Circuit addressed the “delayed commencement” principle and held that “[h]ad it not been for the intervention of the Dyer Act sentence, the commencement of service of the remainder of his earlier sentence would have been advanced.” Id. Accordingly, the court held that the appellant’s preexisting, valid sentence should be credited with the time served on the invalid conviction. Id.
{¶ 62} The Supreme Court of Ohio’s decision in McNary, supra, appears to follow the “delayed commencement” principle. The McNary court explained that during the time the defendant was in custody for his invalid conviction, his sentence for his valid conviction could have been running. Id. at 12. In other words, the prison time served
{¶ 63} The Fourth Circuit described three scenarios where credit for time served under a vacated sentence could arise. Miller v. Cox, 443 F.2d 1019 (4th Cir.1971). First, the original conviction is set aside and the defendant is retried and resentenced for the same offense; credit should be allowed. Id. at 1020. Second, after a conviction and sentence is invalidated, the defendant commits a separate offense; the defendant cannot “bank time” or have a “line of credit for future crimes” and any time on the invalid sentence is not credited on the second offense.
{¶ 64} Third, the situation presented here, when the defendant is serving consecutive sentences and the first one is invalidated after being partially served, the State must credit the sentence remaining to be served on the valid conviction with the time served under the voided conviction. The court stated that “[c]ommon sense and fundamental fairness require that under such circumstances the state should not ignore the period of imprisonment under the invalid sentence when an appropriate remedy [i.e., to adjust the administrative records of the prison authorities so that service on the remaining valid sentences would commence at an earlier date] is so readily available.” Id. at 1021. In such a situation, it has been held, failing to credit a defendant would “abuse due process, shock the judicial conscience and effect the imposition of cruel and unusual punishment under the eighth amendment.” Goodwin, 418 F.2d at 868. Accord Maroney, 264 F.Supp. at 688.
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