State v. Bennett

[Cite as State v. Bennett, 2020-Ohio-3453.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
Nos. 108700 and 108749
v. :

TIMOTHY BENNETT, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 25, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-14-585597-A and CR-17-623346-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Andrew J. Santoli and Brandon A. Piteo,
Assistant Prosecuting Attorneys, for appellee.

Buckeye Law Office and Craig W. Smotzer; Marein &
Bradley and Mark B. Marein, for appellant.

ANITA LASTER MAYS, J.:

In this consolidated appeal, defendant-appellant, Timothy Bennett,

also known as Timothy B. Bennett, II (“Bennett”) appeals his prison sentences, and
asks this court to vacate and reverse, or modify his sentence. We affirm the trial

court’s decision.

Bennett was charged in seven separate cases, Cuyahoga C.P. Nos. CR-

12-268820, CR-13-578539, CR-14-585597, CR-15-599094, CR-15-596638, CR-15-

601642, and CR-17-623346. For the purposes of this appeal, Bennett states the trial

court erred when it sentenced him to a consecutive sentence and failed to properly

grant jail-time credit involving Cuyahoga C.P. Nos. CR-14-585597, CR-15-601642,

and CR-17-623346.

In Cuyahoga C.P. No. CR-14-585597, Bennett pleaded guilty to two

counts of trafficking, fifth-degree felonies, in violation of R.C. 2925.03; one count of

trafficking with a school yard specification, a fourth-degree felony, in violation of

R.C. 2925.03; and one count of possession, a fifth-degree felony, in violation of

R.C. 2925.11. Bennett was sentenced to 48 months of community control sanctions.

The trial court reserved a sentence of 12 months on each felony of the fifth-degree,

and 18 months for the fourth-degree felony. Each count ran consecutively for a total

of 66 months’ imprisonment. On March 26, 2015, Bennett violated his community

control sanctions. The trial court continued Bennett’s community control to

April 20, 2019, with a prior condition and modified conditions. Specifically, the trial

court added 50 community work service hours to Bennett’s conditions.

In Cuyahoga C.P. No. CR-15-601642, the state charged Bennett with

aggravated murder, murder, felonious assault, and having a weapon while under a

disability. On March 1, 2017, upon the recommendation of the prosecutor, the trial
court dismissed the charges without prejudice. Bennett was arrested in December

2015, and was in custody until the charges were dismissed.

In Cuyahoga C.P. No. CR-17-623346, Bennett pleaded guilty to one

count of involuntary manslaughter, a third-degree felony, in violation of

R.C. 2903.04(B); and one count of having a weapon while under disability, a third-

degree felony, in violation of R.C. 2923.12. Bennett was sentenced to a 36-month

sentence on the involuntary manslaughter count and both counts merged for the

purposes of sentencing. The court also ordered Bennett to receive 209 days of jail-

time credit on this sentence.

After the imposition of the sentence in Cuyahoga C.P. No. CR-17-

623346, the trial court found Bennett in violation of his community control in

Cuyahoga C.P. No. CR-14-585597. The court terminated his community control and

imposed prison sentences on all counts with four of the sentences to run

consecutively and one sentence to run concurrently for an aggregate of 54 months’

imprisonment. The trial court also ran the 54-month sentence consecutively in

Cuyahoga C.P. No. CR-14-585597 to the 36-month prison sentence in Cuyahoga C.P.

No. CR-17-623346, for a total of 90 months’ imprisonment. The trial court credited

Bennet with 1,191 days for jail-time credit, for a total of 1400 jail-time credit days on

both sentences.

Bennett assigns three errors for our review, as a result of this

sentence, arguing that
 I. The trial court erred when it imposed discretionary consecutive
sentences [in cases Cuyahoga C.P. Nos. CR-14-585597 and CR-
17-623346] without supporting its findings as required by
R.C. 2929.14 with evidence and facts from the record;

II. The trial court erred in violation of appellant[’]s right to equal
protection by not crediting him with the time he served in jail
before sentencing in the instant cases and to his sentence as a
whole; and

III. The trial court erred by not crediting defendant-appellant with
982 days of jail-time credit as of the day of sentencing [in
Cuyahoga C.P. Nos. CR-15-601642].

I. Consecutive Sentences

A. Standard of review

In Bennett’s first of assignment of error, he argues that the trial court

erred when it sentenced him to consecutive sentences without supporting its

findings as required by R.C. 2929.14.

When reviewing felony sentences, we apply the standard of review set
forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, 21-23. Under R.C.
2953.08(G)(2), an appellate court may increase, reduce, or modify a
sentence, or it may vacate the sentence and remand for resentencing,
only if it clearly and convincingly finds either (1) the record does not
support certain specified findings, or (2) the sentence imposed is
contrary to law.

A sentence is “contrary to law” if the sentence falls outside the
statutory range for the particular degree of offense, the trial court fails
to consider the purposes and principles of felony sentencing set forth
in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12 for
individual sentence, or the trial court fails to make the findings
required by R.C. 2929.14(C) for the imposition of consecutive
sentences. State v. Wilkins, 8th Dist. Cuyahoga No. 107982, 2019-
Ohio-4061, ¶ 20, 31-33. A matter is “clear and convincing” if it
“‘produce[s] in the mind of the trier of facts a firm belief or conviction
as to the facts sought to be established.’” Id. at ¶ 20, quoting Cross v.
 Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of
the syllabus.

State v. Jackson-Williams, 8th Dist. Cuyahoga Nos. 108516 and 108611, 2020-

Ohio-1118, ¶ 61-62.

B. Whether the Trial Court Erred when it Imposed
Discretionary Sentences without Supporting its
Fındings as Required by R.C. 2929.14 with Evidence
from the Record

In order for the trial court to impose consecutive sentences under

R.C. 2929.14(C)(4), the trial court must find that consecutive sentences are

necessary to protect the public from future crime or to punish the offender, that such

sentences are not disproportionate to the seriousness of the conduct and to the

danger the offender poses to the public, and that at least one of the following also

applies:

(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 postrelease 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.

R.C. 2929.14(C)(4).
 The trial court must make the findings in open court and on the

record at the sentencing hearing in order to comply with R.C. 2929.14(C)(4).

Meaning, “‘the [trial] court must note that it engaged in the analysis’ and that it ‘has

considered the statutory criteria and specifie[d] which of the given bases warrants

its decision.’” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659,

¶ 26, quoting State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999).

We, as the reviewing court, must be able to discern that the record

supports the trial court’s findings. State v. Davis, 8th Dist. Cuyahoga No. 102639,

2015-Ohio-4501, ¶ 21, citing Bonnell at ¶ 29. A trial court is not, however, required

to state its reasons for its findings, nor is it required to give a rote recitation of the

statutory language, “provided that the necessary findings can be found in the record

and are incorporated in the sentencing entry.” Bonnell at ¶ 37.

Bennett argues that the trial court erred when it ordered Bennett to

serve consecutive sentences in Cuyahoga C.P. No. CR-14-585597 and did not

support its findings as required by R.C. 2929.14(C)(4). The trial court stated,

In [Cuyahoga C.P. No. CR-14-]585597, the defendant is found in
violation of the community control in that case because of the plea and
conviction in [Cuyahoga C.P. No. CR-17-]623346. The [c]ommunity
[c]ontrol will be terminated. As to each of the three felonies of the
fifth-degree, he will receive 12 months. Felony of the fourth-degree,
18 months. A total of 54 months. Those will all run consecutive. It’s
necessary to protect the public and punish the offender and it’s not
disproportionate, and the harm is so great or unusual that a single
term does not adequately reflect the seriousness of the conduct.

(Tr. 117.)
 This court addressed a distinctly similar issue in State v. Rosario, 8th

Dist. Cuyahoga No. 106119, 2018-Ohio-1203. The appellant argued that the court

failed to make the mandatory findings necessary for imposing consecutive sentences

under R.C. 2929.14(C)(4). In that case, the trial court stated, at sentencing, “[t]he

court further finds that consecutive sentences in this case [are] necessary to protect

the public from future crime or to punish the offender and that consecutive

sentences are not disproportionate to the seriousness of the offender’s conduct, to

the danger the offender poses to the public.” Id. at ¶ 14. Like Bennett, the appellant

in Rosario also committed crimes while on community control, and the trial court

found it necessary to impose consecutive sentences. In Rosario, this court held that

“the court made the proper statutory findings to impose consecutive sentences and

that these findings are supported by evidence in the record.” Id. at ¶ 15.

Although the trial court did not state verbatim that the “sentences are

not disproportionate to the seriousness of the conduct and to the danger the

offender poses to the public,” this court previously held that

“I do not find it’s disproportionate,” and “similar language has been
deemed sufficient to constitute a finding that consecutive sentences
are not disproportionate to the seriousness of a defendant’s conduct
and to the danger he poses to the public. See State v. Greene, 8th Dist.
Cuyahoga No. 100542, 2014-Ohio-3713, ¶ 6 (finding the statement, “it
is not a disproportionate sentence,” to be sufficient, but barely, under
R.C. 2929.14(C)(4)).

State v. Moore, 2014-Ohio-5135, 24 N.E.3d 1197, ¶ 25 (8th Dist.).

The record in this instant case demonstrates that Bennett violated his

community control sanctions twice, was found guilty of additional criminal offenses
in four other cases since being placed on community control sanctions, and

committed offenses after more stricter sanctions were placed on him. In light of

Bennett’s criminal history, the findings are supported by the evidence in the record.

Consistent with our decision in Rosario, we overrule the appellant’s first assignment

of error and find that the trial court did not err when it sentenced Bennett to serve

his sentences consecutively.

II. Jail-Time Credit

A. Standard of review

Bennett’s assigned errors raise issues with his sentencing. “An

appellate court must conduct a meaningful review of the trial court’s sentencing

decision. State v. Johnson, 8th Dist. Cuyahoga No. 97579, 2012-Ohio-2508, ¶ 6,

citing State v. Hites, 3d Dist. Hardin No. 6-11-07, 2012-Ohio-1892.” State v.

Williams, 8th Dist. Cuyahoga No. 105903, 2018-Ohio-1297, ¶ 8.

R.C. 2953.08(G)(2)(a) compels appellate courts to modify or vacate
sentences if they find by clear and convincing evidence that the record
does not support any relevant 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 Code.” See State v.
Belew, 140 Ohio St.3d 221, 2014-Ohio-2964, 17 N.E.3d 515, ¶ 12
(Lanzinger, J., dissenting from the decision to dismiss the appeal as
having been improvidently accepted) (“R.C. 2953.08(G)(2)
repudiates the abuse-of-discretion standard in favor of appellate
review that upholds a sentence unless the court of appeals clearly and
convincingly finds that the record does not support the trial court’s
findings”).

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22.
 B. Whether the Trial Court Erred in Violation of
Appellant’s Right to Equal Protection by not Crediting
him with the Time he Served in Jail Before Sentencing
in the Instant Cases and to his Sentence as a Whole

In two separate assignments of error, Bennett argues that the trial

court erred by applying his jail-time credit incorrectly. In the second assignment of

error, Bennett contends that the trial court erred by applying his jail-time credit to

separate sentences instead of on the whole sentence. The trial court granted Bennett

209 days on Cuyahoga C.P. No. CR-17-623346 and 1191 days on Cuyahoga C.P.

No. CR-14-585597, which is reflected in each of the journal entries.

Bennett was credited for the time he spent in jail prior to the

sentencing on the cases. The cases do not overlap and are unrelated.

Time spent in confinement, either prison or jail, for unrelated cases
or awaiting trial and sentencing on an unrelated case cannot be
counted towards another case. The Ohio Supreme Court highlighted
this point in State v. Cupp, 156 Ohio St.3d 207, 2018-Ohio-5211, 124
N.E.3d 811, ¶ 23. There, it ruled that “[a] defendant is not entitled to
jail-time credit while held on bond if, at the same time, the defendant
is serving a sentence on an unrelated case.” Id. at the syllabus.

State ex rel. McPherson v. Chambers-Smith, 8th Dist. Cuyahoga No. 109131,

2020-Ohio-193, ¶ 12.

R.C. 2967.191 requires the Ohio Department of Rehabilitation and

Correction to “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.” In State v. Fugate, 117 Ohio St.3d 261,

2008-Ohio-856, 883 N.E.2d 440, the Ohio Supreme Court noted that “[w]hen a
defendant is sentenced to consecutive terms, the terms of imprisonment are served

one after another, [and] 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.” The

important point is that the consecutive sentence is reduced by the full amount of

jail-time credit. Neither R.C. 2967.191 nor Fugate prohibit a court from dividing the

full amount of jail-time credit between two or more case numbers. The only

requirement is that the defendant’s aggregate sentence be reduced by the full

amount of jail-time credit.

Bennett cites Zanders v. Anderson, 10th Dist. Franklin No. 03AP-

888, 2004-Ohio-5160, and State v. Whitaker, 4th Dist. Ross No. 02CA2691, 2003-

Ohio-3231, for the proposition that the jail-time credit must be applied to the whole

sentence rather than on separate individual sentences. However, neither of these

cases support this proposition. They hold, as the Ohio Supreme Court held in

Fugate, that the defendant is entitled to a reduction of his entire consecutive

sentence by the full amount of jail-time credit. In Whitaker, the defendant sought

to have the full amount of jail-time credit applied separately to multiple convictions,

which would have resulted in application of multiple times the full amount of jail-

time credit. In rejecting this argument, the Whitaker court explained that “Whitaker

is not entitled to multiple jail-time credit.” Id. at ¶ 9.

The trial court in this case applied the full amount of jail-time credit

to the entire sentence by dividing the full amount of credit between two cases. It

reduced the aggregate sentence by the full amount of jail-time credit as required by
R.C. 2967.191. Therefore, the trial court did not err in dividing jail-time credit

between the two cases because Bennett effectively received the full amount of credit

on the aggregate sentence.

In Bennett’s third assignment of error,1 he argues that the trial court

erred in applying 209 days of jail-time credit in Cuyahoga C.P. No.CR-17-623346.

Bennett contends that he was in custody in Cuyahoga C.P. No. CR-601642 from

December 1, 2015, until April 10, 2017, for a total of 497 days. Bennett also contends

that Cuyahoga C.P. No. CR-601642 was dismissed in 2017, he was reindicted in

Cuyahoga C.P. No. CR-623346 and arrested on February 7, 2018. Bennett contends

that he was in Cuyahoga County custody until June 18, 2019, for a total of 498 days.2

(Appellant’s brief at p. 3.) Bennett contends that the trial court erred by not granting

him 982 days of jail-time credit.

Bennett seemed to ask for credit on Cuyahoga C.P. No. CR-15-

601642, a case where he was charged in a five-count indictment. However, upon the

recommendation from the prosecutor, the court dismissed the case without

prejudice. The mandatory language of R.C. 2967.191 requires that the trial court

calculate credit for any time of incarceration that arises out of the offense for which

Bennett was convicted and sentenced. State v. Gregory, 108 Ohio App.3d 264, 670

N.E.2d 547 (1st Dist.1995). See also R.C. 2967.191. Bennett was not convicted or

1Sole assignment of error from Bennett’s consolidated case in 8th Dist. Cuyahoga
No. 108749.

2 The total days in brief equal 995 days. However, Bennett’s assignment of error
request 982 days. Using the sentencing date of June 5, 2019 would total 982.
sentenced in CR-15-601642, and therefore, he is not eligible to receive jail-time

credit on that case.

However, Bennett was awarded a total of 1,400 days in jail-time

credit; 209 days in Cuyahoga C.P. No. CR-17-623346 and 1,191 days in Cuyahoga

C.P. No. CR-14-585597. The trial court already included the 982 days Bennett is

requesting in its award of 1,191 days in Cuyahoga C.P. No. CR-14-585597. Bennett

cannot be awarded an additional 982 days in Cuyahoga C.P. No. CR-17-623346. As

previously stated, the trial court can apply the jail-time credit to separate cases as

long as the full-time credit is awarded. The trial court, in this case, awarded the full

amount of 1,400 days of jail-time credit by awarding 209 days in one case and 1,191

days in the other case.

Therefore, Bennett’s second and third assignments of error are

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

Rule 27 of the Rules of Appellate Procedure.

_________________________________
ANITA LASTER MAYS, JUDGE

EILEEN T. GALLAGHER, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR