State v. McCuller

[Cite as State v. McCuller, 2013-Ohio-1351.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99045
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CHARLES D. McCULLER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-048254, CR-048919, and CR-052011
BEFORE: E.A. Gallagher, J., Keough, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: April 4, 2013
FOR APPELLANT
Charles D. McCuller, pro se
Inmate #482-821
Grafton Correctional Institution
2500 S. Avon Belden Rd.
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} This cause came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1.
{¶2} Defendant-appellant Charles D. McCuller appeals pro se from the
judgment of the trial court denying his motion to vacate a void sentence. McCuller
argues that the trial court erred in failing to include jail-time credit in its sentencing
journal entry and that the state of Ohio violated his constitutional protections against
double jeopardy. Finding no merit to the instant appeal, we affirm the judgment of the
trial court.
{¶3} The instant appeal covers three separate convictions in the lower court:
CR-048254, in which the court sentenced McCuller to 5-15 years for attempted rape and
felonious assault; CR-048919, where the trial court sentenced McCuller to 7-25 years for
one count of rape; and CR-052011 in which the trial court sentenced McCuller to 7-25
years on one count of rape. McCuller did not directly appeal any of the three
convictions.
{¶4} On March 27, 1996, the trial court granted McCuller’s motion for jail-time
credit and credited him with 79 days in CR-052011, 91 days in CR-048254 and 89 days
in CR-048919. Years later, on June 21, 2010, McCuller moved the trial court to vacate
a void sentence. The basis for McCuller’s motion was the trial court’s initial failure to
credit him with his time of pretrial confinement in its original sentencing entries. The
state opposed the motion and, on September 11, 2012, the trial court denied McCuller’s
motion.
{¶5} McCuller appeals, raising the following two assignments of error:
Assignment of Error I
The trial court erred by not including jail-time credit in its sentencing
journal Entry contrary to statutory mandates.
Assignment of Error II
The Trial Court erred to the prejudice of Defendant-Appellant and in
violation of Defendant-Appellant’s [sic] [to] not be twice put in jeopardy
conferred by Article I, Section 10 of the Constitution of the State of Ohio
and the Fifth and the Fourteenth Amendments to the United States
Constitution, which as a result the trial court lacked subject matter
jurisdiction in the Second Instance.
{¶6} In his first assigned error, McCuller argues that his originally imposed
sentences were void because they did not contain credit for pretrial confinement. We
disagree. In Trice v. Dept. of Rehab. & Corr., Ct. of Cl. No. 2007-04028,
2007-Ohio-5162, the Ohio Court of Claims reviewed the prior and current versions of
Crim.R. 32.2, Ohio Adm. Code 5120-2-04(B) and R.C. 2967.191, 2949.08(C), and
2949.12, which provide for the mandatory crediting of pretrial confinement. Upon
reviewing the above-mentioned code sections, the court determined “that the omission of
a finding of jail-time credit does not render plaintiff’s sentencing entry void * * *.” Id.Further, any alleged error in failing to credit McCuller with his earned jail time was
corrected in the ruling on McCuller’s own motion in 1996.
{¶7} McCuller did not appeal the lack of jail-time credit via direct appeal after
his original sentence was imposed nor did he appeal the court’s 1996 nunc pro tunc
journal entry crediting him with his days of confinement.
{¶8} In his second assigned error, McCuller improperly raises new issues for the
first time that were not previously raised for consideration before the trial court. In his
appellate brief, McCuller argues, for the first time, that the adjudicatory hearing held in
juvenile court prior to his transfer to the general division violated the state of Ohio and
United States Constitutions’ protections against double jeopardy.
{¶9} Because McCuller did not raise these issues in the trial court, these
arguments have been waived. See State v. Gripper, 10th Dist. No. 10AP-1186,
2011-Ohio-3656, ¶11, citing State v. Burge, 88 Ohio App.3d 91, 93, 623 N.E.2d 146(10th Dist.1993); State v. Comen, 50 Ohio St.3d 206, 211, 553 N.E.2d 640 (1990).
Therefore, we find McCuller waived the second argument that he now attempts to make
because it was not raised in the trial court.
{¶10} McCuller’s first and second assignments of error are overruled.
{¶11} The judgment of the trial court is 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. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
EILEEN T. GALLAGHER, J., CONCUR