State v. WyburnState v. Wyburn
Scott J. Hoffman, for appellant.
* * * * *
DECISION AND JUDGMENT
YARBROUGH, J.
{¶ 1} Defendant-appellant, Matthew Wyburn, appeals from the denial of his pro se motion for jail-time credit entered by the Lucas County Court of Common Pleas on September 13, 2010. We affirm.
{¶ 3} On January 10, 2006, Wyburn was arrested for escape, a third dеgree felony, in connection with his failure to return from work-release. He was indicted ten days later (case No. CR0200601137). On March 7, 2006, he pled no contest to this charge, was convicted and then sentenced to four years of community control, the first thirty days to be served at the Corrections Center of Northwest Ohio. The sentencing court‘s entry specified that the community control imposed in the escape case “shall be served concurrently with the community control imposed and continued at [sic] CR200502084,” the earlier breaking and entering case. The court again notified Wyburn that violating his community control would entail harsher sanctions, “including a prison term of four (4) years.”
{¶ 4} On May 16, 2007, at a community control violation hearing, Wyburn admitted to a new violation in the escape case. The trial court then revoked his
{¶ 5} On June 8, 2010, Wyburn filed a motion in the trial court “pursuant to
{¶ 6} “The trial court committed prejudicial error by failing to give him [sic] appropriate credit for time served in relation to two concurrent sentences.”
{¶ 7} Wyburn now argues that the sentencing court erred in failing to credit him with “273” days on both of the underlying convictions.1 In support of this argument, he
relies on the Ohio Supreme Court‘s holding in State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856. In Fugate, the parties agreed that the defendant had been held simultaneously on the three charges involved, two of which were new offenses committed while he was оn community control. Following Fugate‘s conviction on the new offenses, he was sentenced to prison terms that were concurrent with the time imposed for the community control violation, but the trial court applied a jail-time credit only to the latter violation. Id. at ¶ 2-5. Citing
{¶ 8}
{¶ 9} “The department of rehabilitation and correction shall reduce the stated prisоn 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, including confinement in lieu of bail while awaiting trial, * * *.” (Emphasis added.)
{¶ 11} The Fugate Court also identified
{¶ 12} “If an offender is serving two or more sentences, stated prison terms or combination thereof concurrently, the department shall independеntly reduce each sentence or stated prison term for the number of days confined for that offense. Release of the offender shall be based upon the longest definite, minimum and/оr maximum sentence or stated prison term after reduction for jail time credit.” (Emphasis added.)
{¶ 13} The state argues that Fugate‘s holding is inapposite to the facts here. We agree. It applies only to a defendant entitled to jail-time credit under
{¶ 14} In State v. Izquierdo, 6th Dist. No. L-10-1221, 2011-Ohio-286, we rejected a similar argument. The defendant there sought to have a jail-time credit of 231 days received in a 2005 conviction applied to a 2006 felonious assault conviction. In the 2006 cаse, the sentencing court ordered the defendant‘s prison term to be served concurrently with his 2005 conviction. As well, the court credited him with “100 in-custody days” for the time he was held between indictment аnd sentencing on the assault charge. Id. at ¶ 2-4. Citing
{¶ 15} “Upon review of the judgment еntries attached to appellant‘s brief, in this [2006] case appellant was given 100 days of jail time credit. In [the 2005] Lucas County case * * * appellant was given 231 days of jail time credit. Reviewing them independently, although appellant has served his sentence in the 2005 case, his sentence
{¶ 16} Similarly, Wyburn seeks to benefit here from a prospective application of the larger jail-time credit from the earlier breaking and entering conviction to the later escape conviction, merely because the sentences were made concurrent—despite the fact that he was not “held on” the escape charge in 2005. Fugate, supra, at ¶ 1. Thus, Wyburn‘s argument is without merit.
{¶ 17} Accordingly, the sole assignment of error is not well-taken.
{¶ 18} On consideration whereof, the judgment of the Lucas County Court of Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this aрpeal pursuant to App.R. 24.
JUDGMENT AFFIRMED.
Mark L. Pietrykowski, J.
JUDGE
Thomas J. Osowik, P.J.
JUDGE
Stephen A. Yarbrough, J.
CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.