State v. Phillips , 2016 Ohio 5194 ( 2016 )

[Cite as State v. Phillips, 2016-Ohio-5194.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 16 MA 0003
V. )
) OPINION
KEITH PHILLIPS, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 2009 CR 921
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
Ralph M. Rivera
Assistant Prosecutor
21 W. Boardman St. 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant Keith Phillips
#581-830
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 44302
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Carol Ann Robb
Dated: July 26, 2016
[Cite as State v. Phillips, 2016-Ohio-5194.]
DONOFRIO, P.J.
{¶1} Defendant-appellant, Keith Phillips, appeals from a Mahoning County
Common Pleas Court judgment denying his motion for jail time credit.
{¶2} On September 3, 2009, a Mahoning County Grand Jury indicted
appellant on one count of felonious assault, a second-degree felony in violation of
R.C. 2903.11(A)(2)(D), with an accompanying firearm specification, and one count of
having a weapon while under disability, a third-degree felony in violation of R.C.
2923.13(A)(2)(B).
{¶3} Appellant entered a guilty plea on February 3, 2010, to the charges in
the indictment. The trial court sentenced appellant to five years on the felonious
assault charge and five years on the having a weapon under disability charge, to run
concurrently. It also sentenced him to three years on the firearm specification to be
served prior to and consecutive to the other sentences for a total prison term of eight
years. The court also ordered that appellant’s sentence in this case was to be served
concurrently with his sentence in another case (2008-CR-754). Appellant was given
credit for 173 days along with future days in custody awaiting transport. Appellant
did not file a direct appeal.
{¶4} On February 18, 2014, appellant filed a pro-se “motion to vacate
conviction due to subject-matter jurisdiction.” The trial court denied appellant’s
motion. Appellant appealed to this court. We treated appellant’s motion as an
untimely postconviction petition and affirmed the trial court’s judgment. State v.
Phillips, 7th Dist. No. 14 MA 34, 2014-Ohio-5309, ¶ 20, reconsideration denied, 7th
Dist. No. 14 MA 342015-Ohio-69, ¶ 20, appeal not allowed, 143 Ohio St. 3d 1405,
2015-Ohio-2747, 34 N.E.3d 133, ¶ 20, reconsideration denied, 143 Ohio St. 3d 1468,
2015-Ohio-3733, 37 N.E.3d 1252, ¶ 20.
{¶5} On January 5, 2015, appellant filed a pro-se motion for jail-time credit.
On December 1, 2015, the trial court overruled that motion. Appellant filed a timely
notice of appeal on January 4, 2016.
{¶6} Appellant, still acting pro-se, now asserts a single assignment of error
that states:
-2-
THE TRIAL COURT ERRED BY NOT DETERMINING THE
NUMBER OF DAYS OF CONFINEMENT OWED AND INCLUDING
THAT NUMBER INTO AN ENTRY SENT TO ORDC [sic].
{¶7} Appellant argues the trial court incorrectly calculated his amount of jail
time credit. He claims this was plain error. Appellant asserts the trial court correctly
determined the amount of days he was confined prior to sentencing. But he claims
the court failed to give him credit for the days he was held after sentencing,
presumably awaiting transport to prison. He also claims he was not given credit for
the 90 days he spent in the county jail in case 2008-CR-754.
{¶8} Plaintiff-appellee, the State of Ohio, asserts appellant’s assignment of
error is barred by the doctrine of res judicata.
{¶9} Pursuant to R.C. 2967.191, the department of rehabilitation and
correction shall reduce a prisoner’s prison term by the total number of days the
prisoner was confined for any reason arising out of the offense for which the prisoner
was convicted and sentenced, including confinement while awaiting transportation to
the place where the prisoner is to serve the prison term. It is up to the trial court to
calculate the actual number of days of jail-time credit. State ex rel. Rankin v. Ohio
Adult Parole Auth., 98 Ohio St. 3d 476, 2003-Ohio-2061, 786 N.E.2d 1286, ¶ 7.
{¶10} Prior to the enactment of R.C. 2929.19(B)(2)(g)(iii), a defendant was
able to challenge mathematical errors in calculating jail-time credit by filing a motion
for correction with the trial court and by appealing the trial court’s judgment, but if the
defendant sought to challenge a legal error in the imposition of jail-time credit, he was
required to file a direct appeal from the sentencing entry or be barred by the doctrine
of res judicata. State v. Mason, 7th Dist. No. 10 CO 20, 2011-Ohio-3167, ¶ 13.
{¶11} But on September 28, 2012, the legislature enacted R.C.
2929.19(B)(2)(g)(iii), which provides in part:
The sentencing court retains continuing jurisdiction to correct any
error not previously raised at sentencing in making a determination
-3-
under division (B)(2)(g)(i) of this section. The offender may, at any time
after sentencing, file a motion in the sentencing court to correct any
error made in making a determination under division (B)(2)(g)(i) of this
section, and the court may in its discretion grant or deny that motion.
(Emphasis added.)
{¶12} Some courts still apply the doctrine of res judicata to bar a defendant’s
appeal from a judgment on his motion for jail-time credit on a claim that he was
denied credit due to a legal error. See, State v. Kilgore, 2d Dist. No. 26478, 2015-
Ohio-4717. But this court has recognized that with the enactment of R.C.
2929.19(B)(2)(g)(iii), a sentencing court has continuing jurisdiction on the matter of
jail-time credit errors. State v. Norris, 7th Dist. No. 14 MO 7, 2014-Ohio-5833, ¶ 19.
{¶13} Moreover, the Ohio Supreme Court recently commented on this issue in
determining that a judgment denying a defendant's motion to correct jail-time credit
for days spent incarcerated prior to indictment was a final, appealable order. State v.
Thompson, Slip Opinion 2016-Ohio-2769. The Court stated:
Prior to the enactment of R.C. 2929.19(B)(2)(g)(iii), an offender
was able to seek correction of an error made in determining jail-time
credit only on direct appeal. * * * Motions to correct errors made in
determining jail-time credit that were filed outside the time allowed for
appeal were barred by the doctrine of res judicata. * * *
Pursuant to R.C. 2929.19(B)(2)(g)(iii), an offender can file a
motion to correct an error in determining jail-time credit “at any time
after sentencing” and the sentencing court has authority to correct any
error in determining jail-time credit that was “not previously raised at
sentencing.”
(Internal citations omitted); Id. at ¶ 11-12.
{¶14} Thus, appellant’s argument is not barred by the doctrine of res judicata
as the state alleges. Therefore, we will consider the merits of appellant’s argument.
-4-
{¶15} Appellant claims the trial court failed to give him credit for the days he
was held in jail after sentencing.
{¶16} But the trial court’s judgment specifically states that appellant is granted
173 days of jail-time credit as of the date of sentencing “along with future custody
days while Defendant awaits transportation to the appropriate State institution.”
(February 3, 2010 Judgment Entry). Thus, the trial court ordered that appellant was
entitled to credit for any days he was held in jail awaiting transportation to prison.
There is no indication on the record that appellant did not receive credit for those
days. All we have are appellant’s self-serving statements in his appellate brief that
he did not receive the proper credit.
{¶17} Appellant also claims the trial court did not give him credit for the 90
days he spent in the county jail for case 2008-CR-754.
{¶18} In its sentencing entry, the trial court stated that appellant was to serve
his prison term concurrent with his sentence in case 2008-CR-754. (February 3,
2010 Judgment Entry). In case 2008-CR-754, the court sentenced appellant to 90
days in jail and five years of community control. Once again, there is no indication on
the record that appellant did not receive the proper credit in this case. We cannot
rely on appellant’s mere allegations that he did not receive the appropriate credit.
{¶19} Accordingly, appellant’s sole assignment of error is without merit.
{¶20} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Waite, J., concurs.
Robb, J., concurs.