State v. Humphrey ( 2012 )

[Cite as State v. Humphrey, 2012-Ohio-1826.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
State of Ohio, : Case No. 12CA3318
Plaintiff-Appellee, : DECISION AND
JUDGMENT ENTRY
v. :
Jeffrey W. Humphrey, : RELEASED 04/16/12
Defendant-Appellant. :
{¶ 1} After reviewing the notice of appeal filed in this matter, we issued an order
directing Appellant Jeffrey W. Humphrey to file a memorandum addressing whether the
entry appealed from is a final appealable order. Humphrey has filed a memorandum
arguing that the trial court’s entry overruling his motion for jail time credit is a final
appealable order, and the State of Ohio has filed a memorandum arguing that it is not.
After reviewing the memoranda and the relevant law, we hereby DISMISS this appeal
because the entry appealed from is not a final appealable order.
I.
{¶ 2} Humphrey pled no contest and was found guilty of complicity to breaking and
entering in violation of R.C. 2923.03, a fifth degree felony; possession of criminal tools in
violation of R.C. 2923.24, a fifth degree felony; and tampering with evidence in violation of
R.C. 2921.12, a third degree felony. The Ross County Court of Common Pleas sentenced
Humphrey to 12 months in prison for both complicity to breaking and entering and
possession of criminal tools. The court also sentenced Humphrey to five years
incarceration for the tampering with evidence conviction. The trial court ordered that all
sentences be served concurrently and awarded 21 days of jail time credit as of February
Ross App. No. 12CA3318 2
16, 2010, along with future custody days while Humphrey awaited transportation to the
appropriate state institution. The sentencing entry was journalized on March 5, 2010.
{¶ 3} Humphrey filed a timely notice of appeal challenging the trial court’s denial of
his motion to suppress and failure to merge allied offenses of similar import, but did not
challenge the trial court’s calculation of his jail time credit. We affirmed the judgment of
the trial court. State v. Humphrey, 4th Dist. No. 10CA3150, 2010-Ohio-5950. However,
the Supreme Court of Ohio accepted Humphrey’s discretionary appeal, vacated our
judgment on the second assignment of error, and remanded the case for application of
State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. State v.
Humphrey, 128 Ohio St.3d 397, 2011-Ohio-1426, 944 N.E.2d 1172. Upon remand, we
again affirmed the judgment of the trial court. State v. Humphrey, 4th Dist. No.
10CA3150, 2011-Ohio-5238.
{¶ 4} On January 19, 2012, Humphrey filed a motion for jail time credit asserting
that he should have been credit for an additional 122 days he was held in the Ross County
Jail from September 11, 2009 to March 10, 2010. The trial court overruled this motion and
it is from this entry that Humphrey appeals.
II.
{¶ 5} Pursuant to R.C. 2949.08(B),
The record of the person’s conviction shall specify the total
number of days, if any, that the person was confined for any
reason arising out of the offense for which the person was
convicted and sentenced prior to delivery to the jailer,
administrator, or keeper under this section. The record shall be
used to determine any reduction of sentence under division (C)
of this section.
R.C. 2967.191 mandates the department of rehabilitation and correction to reduce a
prisoner’s sentence “by the total number of days that the prisoner was confined for any
Ross App. No. 12CA3318 3
reason arising out of the offense for which the prisoner was convicted and sentenced[.]”
The trial court is responsible for calculating the amount of jail time credit and including it in
the sentencing entry. State v. Keith, 9th Dist. No. 08CA9362, 2009-Ohio-76, citing State
ex rel. Rankin v. Ohio Adult Parole Auth., 98 Ohio St.3d 476, 2003-Ohio-2061, 786 N.E.2d
1286, at ¶ 7.
{¶ 6} Because the number of days of jail time credit a defendant is entitled to must
be stated in the trial court’s sentencing entry, any challenge to that calculation must be
made on appeal from the trial court’s entry imposing sentence. Rankin at ¶ 10. Although
Humphrey appealed his conviction, he did not challenge the trial court’s jail time credit
calculation. The doctrine of res judicata bars a litigant from raising any issue, claim, or
defense that could have been previously raised but was not. See State v. Chafin, 10th
Dist. No. 06AP-1108, 2007-Ohio-1840, at ¶ 11. Having failed to raise this issue on direct
appeal, Humphrey is barred by the doctrine of res judicata from raising this issue at this
time.
{¶ 7} More importantly, the trial court’s entry denying Humphrey’s motion for jail
time credit is not a final appealable order. It is well established that an order must be final
before it can be reviewed by an appellate court. See Section 3(B)(2), Article IV of the
Ohio Constitution. See, also, General Acc. Ins. Co. v. Insurance Co. of North American,
44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989). If an order is not final and appealable, then
an appellate court has no jurisdiction to review the matter and must dismiss the appeal.
Lisath v. Cochran, 4th Dist. No. 92CA25, 1993 WL 120627 (Apr. 15, 1993); In re Christian,
4th Dist. No. 1507, 1992 WL 174718 (July 22, 1992).
{¶ 8} R.C. 2505.02 defines a final order as “[a]n order that affects a substantial
right in an action that in effect determines the action and prevents a judgment,” or “[a]n
Ross App. No. 12CA3318 4
order that affects a substantial right made in a special proceeding or upon a summary
application in an action after judgment.” R.C. 2505.02(B)(1) and (B)(2). Humphrey had no
substantial right to have his final sentencing entry, setting forth his jail time credit,
reconsidered. Therefore, the trial court’s denial of his motion for jail time credit did not
affect a substantial right. See State v. Keith, 9th Dist. No. 08CA9362, 2009-Ohio-76 (trial
court’s entry recalculating jail time credit was nullity because trial court cannot reconsider
its final judgment so appeal was not from a final appealable order); State v. Lemaster, 4th
Dist. No. 02CA20, 2003-Ohio-4557 (denial of motion to correct and/or modify sentence
was not final appealable order because no substantial right to have sentence modified);
State v. Tully, 5th Dist No. 2001CA313, 2002-Ohio-1290 (denial of request for jail time
credit was not final appealable order).
{¶ 9} We note that a trial court may amend the jail time credit awarded in its final
sentencing entry to correct a clerical mistake or a mathematical error pursuant to Crim.R.
36. See State v. McLain, 6th Dist. No. L-07-1164, 2008-Ohio-481, and State v. Chafin,
10th Dist. No. 06AP-1108, 2007-Ohio-1840. And, a trial court’s denial of a motion to
correct jail time credit may be a final appealable order if the trial court refuses to correct a
clerical mistake or mathematical error in calculating jail time. McLain at ¶ 11. However,
because Humphrey is seeking credit for a category of time, we determine that he is
making a substantive claim for jail time credit rather than seeking to correct a calculation
error by the trial court. See Chafin at ¶ 12.
III.
{¶ 10} We conclude that Humphrey should have appealed the trial court’s
calculation of his jail time credit on direct appeal. Because the trial court’s entry denying
his motion for jail time credit is not a final appealable order, we do not have jurisdiction to
Ross App. No. 12CA3318 5
consider this appeal from that entry. Therefore, we DISMISS this appeal.
{¶ 11} The clerk shall serve a copy of this order on all counsel of record at their last
known addresses. The clerk shall serve appellant by certified mail, return receipt
requested. If returned unserved, the clerk shall serve appellant by ordinary mail. SO
ORDERED.
Abele, P.J. & McFarland, J.: Concur.
FOR THE COURT
________________________________
William H. Harsha
Administrative Judge