STATE OF OHIO v. DAVID MCCOY
CASE NO. CA2020-12-127
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
3/28/2022
[Cite as State v. McCoy, 2022-Ohio-995.]
Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael Greer, Assistant Prosecuting Attorney, for appellee.
Repper-Pagan Law, Ltd., and Christopher J. Pagan, for appellant.
M. POWELL, P.J.
{¶ 1} Appellant, David McCoy, appeals his conviction and sentence in the Butler County Court оf Common Pleas for sexual battery.
{¶ 2} On November 20, 2019, appellant was indicted on two counts of sexual battery in violation of
{¶ 3} The Butler County Case proceeded to a jury trial in October 2020. On October 16, 2020, the jury found appellant guilty on both counts. During a sentencing hearing on Novembеr 23, 2020, the trial court indicated it was granting appellant 263 days jail-time credit on each sexual battery count, sentenced appellant to 48 months in prison on Count 1 and 54 months in prison on Count 2, and ordered that the prison terms be served consecutively for an aggregate 102-month prison term. The trial court‘s sentencing entry was journalized on November 30, 2020. It granted appellant 263 days jail-time credit only on Count 2.
{¶ 4} Appellant now appeals, raising three assignments of error.
{¶ 5} Assignment of Error No. 1:
{¶ 6} THE COURT ERRED IN ITS JAILTIME-CREDIT CALCULATION.
{¶ 7} Appellant challenges the trial court‘s calculation of his jail-time credit, raising two issues. Specificаlly, appellant argues he is entitled to an additional 109 days jail-time credit for the time he was held in the Hamilton County jail between November 20, 2019, the day he was indicted and a warrant was issued for his arrest in the Butler County Case, and March 6, 2020, the day he was released from the Hamilton County jail on an OR bond and transported to the Butler County jail in the Butler County Case. Appellant further argues he must be resentenced because although the trial court granted appellant 263 days jail-time credit on each sexual battery count during the sentencing hearing, the sentencing entry
{¶ 8} The Equal Protection Clause and Ohio‘s sentencing statutes require that all time spent in jail prior to trial and prior to commitment must be credited to a prisoner‘s sentence. State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, ¶ 7. The Ohio Legislature codified this principle within
{¶ 9} When a defendant is sentenced to concurrent prison terms for multiple charges, “courts do not have the discretion to select only one term from those that are run concurrently against which to apply jail-time credit.” Fugate at ¶ 12.
{¶ 10} Conversely, “[w]hen 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 sentenсe.” Fugate, 2008-Ohio-856 at ¶ 22. Therefore, where prison terms are imposed consecutively, jail-time credit shall be applied only once, to the total term. Id. at ¶ 10; State v. Soupe, 12th Dist. Butler No. CA2021-06-059, 2021-Ohio-4114, ¶ 15. “A defendant sentenced to consecutive sentences on multiple charges does not have the right to multiply his single period of pretrial confinement by the number of convictions entered against him.” State v. Salmons, 3d Dist. Union No. 14-19-02, 2019-Ohio-3541, ¶ 30.
{¶ 11} Due to the consecutive nature of his sentences, appellant was only entitled to
{¶ 12} We further find that appellant was not entitled to an additional 109 days jail-time credit for the time he was held in the Hamilton County jail between November 20, 2019, the day he was indicted and a warrant was issued for his arrest in the Butler County Case, and March 6, 2020, the day he was released from the Hamilton County jail on an OR bond аnd transported to the Butler County jail.
{¶ 13} 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. Edmonds, 12th Dist. Warren No. CA2014-03-045, 2015-Ohio-2733, ¶ 12. This principle is reflected in
{¶ 14} Appellant is not entitled to jail-time credit for the time he was incarcerated in the Hamilton County jail between November 20, 2019, and March 6, 2020, because he was not incarcerated by reason of the Butler County Case during that period of time. Rather,
{¶ 15} Appellant‘s first assignment of error is sustained in part and overruled in part.
{¶ 16} Assignment of Error No. 2:
{¶ 17} THE COURT ERRED BY ISSUING A CONSECUTIVE-SENTENCING JUDGMENT THAT DIFFERED FROM THE CONSECUTIVE-SENTENCE FACTORS PRONOUNCED AT THE HEARING.
{¶ 18} Appellant argues he is entitled to resentencing because although the sentencing entry sets forth all the mandatory consecutive sentencing findings under
{¶ 19} An appellate court generally reviews felony sentences under
{¶ 20} Pursuant to
(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 , or2929.18 of the Revised Code, or was under post-releаse 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 оf 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 thе public from future crime by the offender.
{¶ 21} “In order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by
{¶ 22} As noted above, there are two components to the proportionality finding under
[T]he Court is going to run Counts I and II consecutive to one another. The Court herein makes the findings under [R.C.] 2929.14(C)(4), that consecutive sentences are necessary to protect the public from future crime and necessary to punish the offender. The Court further indicates consecutive sentences are not disproportionate to the seriousness of the conduct.
In this case, obviously, this was done and impregnation of the stepdaughter wаs done, and the danger posed to the party. I‘ll further indicate that the three and four - that‘s two of the offenses were committed as part of one or more (indiscernible) of conduct, and the harm caused by the multiple was so great and unusual that no single prison term can adequately reflect the seriousness of the conduct as well as the history of criminal conduct demonstrates consecutive sentence is necessary to protect the public from future crime.
{¶ 23} In its subsequent sentencing entry, the trial court made all the findings required by
{¶ 24} “[C]ase law shows that appellate courts have been fairly deferential to the trial court when reviewing the transcript of a sеntencing hearing to determine whether the trial court has made the findings required by
{¶ 25} Upon reviewing the transcript of the sentencing hearing, we find that the trial court‘s statement thаt “consecutive sentences are not disproportionate to the seriousness of the conduct,” followed by the statement, “this was done and impregnation of the stepdaughter was done, and the danger posed to the party” plainly indicate that the trial court considerеd proportionality with respect to both the seriousness of appellant‘s conduct and the danger he posed to the public. See Hollis. We therefore conclude that at sentencing, the trial court found not only that consecutive sentences are not disproportionate to the seriousness of appellant‘s conduct but also that consecutive sentences are not disproportionate to the danger appellant poses to the public. See Richards; State v. Bland, 10th Dist. Franklin Nos. 19AP-826 and 19AP-827, 2020-Ohio-4662 (noting that while no “talismanic incantation” of the words of
{¶ 26} Appellant‘s second assignment of error is overruled.
{¶ 27} Assignment of Error No. 3:
{¶ 28} IT IS UNCONSTITUTIONAL UNDER THE OHIO EQUAL PROTECTION CLAUSE TO CRIMINALIZE CONSENSUAL SEXUAL CONDUCT BETWEEN A STEPPARENT AND AN ADULT STEPCHILD UNDER
{¶ 30} Appellant failed to challenge the constitutionality of
{¶ 31} Because appellant‘s constitutional challenge was clearly apparent and available at the time of his trial, we decline to address it for the first time on appeal. State v. McCuller, 12th Dist. Butler No. CA2005-07-192, 2007-Ohio-348, ¶ 28; State v. Colon, 8th Dist. Cuyahoga No. 103504, 2016-Ohio-3462, ¶ 13.
{¶ 32} Appellant‘s third assignment of error is overruled.
S. POWELL and HENDRICKSON, JJ., concur.