State v. Jones

[Cite as State v. Jones, 2016-Ohio-2790.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Sheila G. Farmer, P. J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. John W. Wise, J.
-vs-
Case No. 15 CA 109
CHRISTOPHER JONES
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2004 CR 0267
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 29, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BAMBI COUCH PAGE CHRISTOPHER JONES
PROSECUTING ATTORNEY PRO SE
DANIEL M. ROGERS RICHLAND CORR. INSTITUTION
ASSISTANT PROSECUTOR Post Office Box 8107
38 South Park Street 1001 Olivesburg Road
Mansfield, Ohio 44902 Mansfield, Ohio 44905
Richland County, Case No. 15 CA 109 2
Wise, J.
{¶1} Appellant Christopher Montez Jones appeals from the decision of the Court
of Common Pleas, Richland County, imposing prison time for appellant’s violation of
community control and setting forth his jail-time credit. This appeal stems from Richland
County Court of Common Pleas case number 2004CR0267, although it is related to two
additional cases from that court. The three cases are briefly summarized in chronological
fashion as follows.
{¶2} In Case No. 2004CR0207, appellant entered a plea of guilty to one count of
forgery, a fifth degree felony (R.C. 2913.31(A)(3)). On October 1, 2008, appellant was
sentenced to one year in prison.1
{¶3} In Case No. 2004CR0267, appellant entered a plea of guilty to one count of
grand theft of a motor vehicle, a fourth degree felony (R.C. 2913.02(A)(1)); one count of
forgery, a fourth degree felony (R.C. 2913.31(A)(2)); and one count of identity fraud, a
third degree felony (R.C. 2913.49(B)(2)). On October 1, 2008, appellant was sentenced
to a total of eight years in prison.
{¶4} In Case No. 2004CR0881, appellant entered a plea of guilty to one count of
theft by deception, a fifth degree felony, in violation of R.C. 2913.02(A)(3).2 The trial court
sentenced appellant to one year in prison on this sole count.
1 The delay is attributable to appellant’s failure to appear for hearings before the trial
court on at least two occasions, resulting in the issuance of bench warrants.
2 We also note appellant was indicted in a fourth case on November 10, 2005, under
Richland County Common Pleas case number 2005CR0863. In that instance, appellant
was indicted on one count of theft, a fifth-degree felony (R.C. 2913.02(A)(2)). However,
although briefly mentioned, this fourth case does not play a significant role in our present
analysis.
Richland County, Case No. 15 CA 109 3
{¶5} No direct appeals were taken by appellant regarding the above 2008
convictions and sentences.
{¶6} On March 10, 2009, appellant filed a “motion/petition to vacate or set aside
judgment of conviction or sentence” under 2004CR0207, 2004CR0267 and
2004CR0881. The trial court overruled same on June 17, 2009. Appellant thereafter
attempted a delayed appeal to this Court, but we dismissed said appeal on September
24, 2009, under case number 09CA101.
{¶7} On May 21, 2010, appellant moved the trial court to revise and/or correct
his sentencing entries in all three of the aforesaid cases to comply with Crim.R. 32(C)
and State v. Baker (2008), 119 Ohio St.3d 197, 893 N.E.2d 163, 2008–Ohio–3330, on
the basis that in journalizing his sentences in the above cases, the trial court had failed
to properly memorialize the manner of conviction, i.e., that appellant had entered pleas
of guilty to the respective charges.
{¶8} On June 2, 2010, the trial court granted appellant's motion, issuing
amended sentencing entries to comply with Crim.R. 32(C) and the Ohio Supreme Court's
holding in Baker, supra.
{¶9} On June 17, 2010, appellant filed a notice of appeal from the June 2, 2010
resentencing entries. On March 11, 2011, this Court found appellant's pleas were not
knowingly, intelligently, and voluntarily entered, and we therefore reversed and
remanded the matter to the trial court. See State v. Jones, 5th Dist. Richland Nos.
10CA75, 10CA76, 10CA77, 2011–Ohio–1202.
{¶10} Turning our focus now to case 2004CR0267 (the matter presently being
appealed), we note on or about May 17, 2011, appellant again entered pleas of guilty to
Richland County, Case No. 15 CA 109 4
the charges of grand theft of a motor vehicle, forgery, and identity theft, and he was
thereafter sentenced to three years of community control.
{¶11} However, roughly seven months later, on December 21, 2011, appellant
appeared before the trial court for a probation violation hearing in case 2004CR0267. As
a result, the trial court sentenced appellant to a total of six years in prison (including
prison time stemming from the other three cases referenced herein). The trial court
further noted that “[j]ail credit, if any, will be granted by subsequent entry.” See Judgment
Entry, December 22, 2011, at 2.
{¶12} In a subsequent entry on December 29, 2011, the trial court credited
appellant with 152 days of jail time in 2004-CR-267. No reference was made to crediting
appellant with prior prison time.
{¶13} On January 17, 2012, appellant filed a notice of appeal as to the aforesaid
judgment entry of December 22, 2011. That case was assigned appellate case number
12CA5. Appellant filed his brief in case number 12CA5 on March 23, 2012, raising one
assignment of error involving the voluntariness of his plea.
{¶14} In the meantime, on February 21, 2012, the trial court issued an amended
journal entry in case number 2004CR0267. Appellant then filed a second appeal and
moved to amend his brief in case number 12CA5. The second appeal was assigned case
number 12CA22. We initially consolidated the cases for merit review, but then ordered
the cases separated.
{¶15} On October 5, 2012, in appellate case 12CA5, we affirmed the decision of
the trial court. See State v. Jones, 5th Dist. Richland No. 12 CA 5, 2012-Ohio-4676.
Furthermore, on October 22, 2012, in appellate case 12CA22, we concluded that
Richland County, Case No. 15 CA 109 5
appellant’s argument regarding allied offenses could have been raised on direct appeal
from the trial court's sentencing entry, and his claim in that regard was thus barred by
res judicata. See State v. Jones, 5th Dist. Richland No. 12CA22, 2012-Ohio-4957.
{¶16} In the meantime, on January 30, 2012, appellant moved the trial court for
additional jail time credit. Via a judgment entry issued on February 2, 2012, the trial court
stated it did not grant credit for time spent in prison, as that time computation is the
responsibility of the Ohio Department of Corrections. However, the trial court did grant
an additional four days of credit for appellant’s time in the Mansfield City Jail during the
month of June 2004. A review of the appellate docket indicates appellant attempted a
delayed appeal in February 2013, which we dismissed on March 11, 2013, under case
number 13CA16.
{¶17} In addition, on February 21, 2012, appellant had filed a motion for reduction
of sentence, which the trial court denied via a judgment entry issued July 11, 2012. The
trial court noted that the ODRC had recently sent appellant “a letter advising him he has
received 895 days of jail-time credit with 760 being prison time credit ***.” Id. at 1. Thus,
the trial court concluded that appellant “has already received all credit he is entitled to
***.” Id. Appellant filed an untimely appeal from that entry under case number 12CA70.
We dismissed same on August 30, 2012.
{¶18} On January 28, 2013, appellant again moved the trial court to recalculate
his prior prison credit. Via a judgment entry entered on January 30, 2013, the trial court
overruled appellant's motion, again stating it does not compute and grant credit for a
defendant’s time spent in prison. Appellant appealed, assigning as error that the trial
court had erred by refusing to properly calculate appellant's prior prison credit. On July
Richland County, Case No. 15 CA 109 6
29, 2013, this Court overruled the assigned error based on res judicata. See State v.
Jones, 5th Dist. Richland No. 13CA20, 2013-Ohio-3331.
{¶19} On October 5, 2015, the State filed a notice of hearing on an allegation of
appellant’s “probation violation,” i.e., the allegation that he had violated his community
control conditions in case 2004-CR-267. He was arraigned the next day. He then
appeared before the court with counsel for a hearing on November 4, 2015. Via a
judgment entry filed on November 16, 2015, appellant was found guilty on all counts of
the alleged probation violations, and he was sentenced to eighteen months in prison on
counts one and two of the original charges, with the sentences to run concurrently.
Furthermore, via a separate judgment entry issued on November 18, 2015, the trial court
ordered that appellant be granted 232 days of jail-time credit toward his sentence.
{¶20} Appellant filed a notice of appeal under case 2004CR0267 on December
10, 2015.3 He herein raises the following sole Assignment of Error:
{¶21} “I. THE TRIAL COURT ERRORED [SIC] BY NOT DETERMINING IF THE
APPELLANT SHOULD BE CREDITED FOR PRE-SENTENCE INCARCERATION
SERVED IN THE DEPARTMENT OF REHABILITATION AND CORRECTIONS. AS A
RESULT, APPELLANT IS ENTITLED TO IMMEDIATE RELEASE.”
3 In his brief, appellant appears to be challenging the jail-time credit decision of
November 18, 2015, even though his notice of appeal and docketing statement both
reference a non-existent entry of November 4, 2015. In the interest of justice, we will treat
appellant’s appeal as a challenge to the court’s decision of November 18, 2015, although
we also note appellant filed a new motion for jail-time credit in the trial court on January
4, 2016, despite the pendency of the within appeal.
Richland County, Case No. 15 CA 109 7
I.
{¶22} In his sole Assignment of Error, appellant maintains the trial court erred in
failing to calculate and credit his prior time for “pre-sentence incarceration” in the ODRC.
{¶23} Under the doctrine of res judicata, a defendant is generally barred from
appealing issues which were raised or could have been raised on direct appeal. See
State v. Payton, 5th Dist. Stark No. 2010CA00276, 2011-Ohio-4386, ¶ 23, citing State v.
Fischer (2012), 128 Ohio St.3d 92. We have applied the doctrine of res judicata to a jail-
time credit motion that alleges an erroneous legal determination on such credit. See
State v. Moyer, Guernsey App.No. 07 CA 18, 2008-Ohio-2166, ¶ 14, citing State v.
Chafin, Franklin App. No. 06AP-1108, 2007-Ohio-1840.
{¶24} We also recognize that R.C. 2929.19(B)(2)(g)(iii) presently provides in
pertinent part as follows:
The sentencing court retains continuing jurisdiction to correct any
error not previously raised at sentencing in making a determination 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. If the court changes
the number of days in its determination or redetermination, the court shall
cause the entry granting that change to be delivered to the department of
rehabilitation and correction without delay. ***. (Emphasis added).
{¶25} In the case sub judice, on prior occasions over the past several years the
trial court has ruled and/or noted on the record that the issue of prison time calculation
Richland County, Case No. 15 CA 109 8
would be determined by the Ohio Department of Corrections. Appellant has either failed
to timely appeal or has not successfully appealed the previous denials of his motions for
“prison time” credit. In particular, we note appellant is concerned only with the time he
served in the DRC “before he was found guilty and sentenced on 5-16-2011.” Appellant’s
Brief at 3. But the judgment entry under appeal of November 18, 2015 is almost entirely
a reiteration of the trial court’s previous calculations of jail-time credit; it makes no
changes other than to add eighty jail days for the period of 9-1-15 to 11-19-15, which is
not in the time period herein targeted by appellant.4 Under these procedural
circumstances, we hold the doctrine of res judicata bars appellant from raising this same
issue on appeal.
{¶26} Appellant's sole Assignment of Error is therefore overruled.
{¶27} For the foregoing reasons, the judgment of the Court of Common Pleas,
Richland County, Ohio, is hereby affirmed.
By: Wise, J.
Farmer, P. J., and
Gwin, J., concur.
JWW/d 0419
4 The only discrepancy we observe in this vein is the issue of the four days in 2004 in
city jail, which does not appear to have been brought forward in the judgment entry under
appeal.