State v. Bowers

[Cite as State v. Bowers, 2013-Ohio-5523.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 13 MA 82
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
JOHN BOWERS, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 10CR1355.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Paul Gains
Prosecuting Attorney
Attorney Ralph Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: John Bowers, Pro se
#621-934
Belmont Correctional Institution
P.O. Box 540
St. Clairsville, Ohio 43950
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: December 12, 2013
[Cite as State v. Bowers, 2013-Ohio-5523.]
VUKOVICH, J.
{¶1} Defendant-appellant John Bowers appeals the decision of the
Mahoning County Common Pleas Court denying his pro se motion for jail-time credit.
The issues raised in this appeal are whether the trial court correctly computed jail-
time credit and whether it correctly applied the holding of the Ohio Supreme Court in
State v. Fugate, 117 Ohio St.3d 261, 883 N.E.2d 440, 2008-Ohio-856. For the
reasons expressed below, jail-time credit was not miscalculated and Bowers’ Fugate
argument is barred by res judicata. Therefore, the judgment of the trial court is
hereby affirmed.
Statement of the Case
{¶2} On December 9, 2010, Bowers was indicted for two counts of trafficking
crack cocaine in violation of R.C. 2925.03(A)(1)(C)(4)(e) and (A)(1)(C)(4)(d), first and
second-degree felonies respectively. Bowers originally pled not guilty, however, on
January 5, 2012, Bowers changed his plea and pled guilty to the indicted offenses.
01/09/12 J.E; 01/20/12 Amended J.E. The trial court proceeded immediately to
sentencing. Bowers received 2 years for each offense and the trial court ordered the
sentences to run concurrently. 01/09/12 J.E.; 01/20/12 J.E. The trial court then gave
Bowers 11 days of credit for time served, plus any additional time awaiting
conveyance. 01/20/12 Amended J.E. Bowers did not file an appeal from his
sentence or conviction.
{¶3} On February 6, 2013, Bowers filed a pro se motion for jail-time credit.
He argued that the trial court incorrectly computed his jail time credit and that it did
not apply the jail-time credit to both charges. 02/06/13 Motion. The state answered
and asserted that the trial court properly stated the credited amount of time. 03/05/13
Motion.
{¶4} After reviewing the motions, the trial court denied the request and
stated that Bowers was entitled to 11 days credit. 04/25/13 J.E.
{¶5} Bowers appeals that decision.
Assignment of Error
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{¶6} “The trial court abused its discretion and erred in not granting all the jail-
time credit the Appellant is entitled to and failing to apply Fugate to credit each of
Appellant’s concurrent sentences.”
{¶7} Bowers’ argument can be divided into two parts. First, he contends that
the trial court did not compute the amount of jail time correctly. As aforementioned,
the trial court credited him for 11 days. Bowers contends that he spent 26 days in jail
during the pendency of the case and he should have been credited for that entire
time. His second argument concerns the Ohio Supreme Court’s decision in Fugate.
He contends that since his sentences were ordered to be served concurrently he was
entitled to credit for 26 days on each sentence for a total credit number of 52 days.
{¶8} In response to these arguments, the state asserts two positions. First,
it claims that the matter is barred by res judicata because Bowers could have filed a
direct appeal from the sentence but he did not. Second, the state asserts that even if
the merits are reached, Bowers’ argument is meritless. It claims that Fugate applies
only to multiple cases, not to multiple offenses. Thus, in this situation where there is
only one case with multiple offenses, it does not apply.
{¶9} In reviewing his arguments, we must first determine whether res
judicata has any application in this case. We have previously explained that while a
defendant may challenge mathematical errors in calculating jail-time credit by filing a
motion for correction with the trial court, and then by appealing the resulting
judgment, the proper vehicle for challenging legal errors in the imposition of jail-time
credit is via a direct appeal from the sentencing entry. State v. Mason, 7th Dist No.
10CO20, 2011–Ohio–3167, ¶ 13. Therefore, if legal errors are not raised via a direct
appeal from the sentencing entry, they are barred by res judicata. Id.; State v.
McKinney, 7th Dist. No. 12MA163, 2013-Ohio-4357, ¶ 8. The doctrine of res judicata
establishes that “a final judgment of conviction bars a convicted defendant who was
represented by counsel from raising and litigating in any proceeding except an
appeal from that judgment, any defense or any claimed lack of due process that was
raised or could have been raised by the defendant at the trial, which resulted in that
judgment of conviction, or on an appeal from that judgment.” (Emphasis deleted.)
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State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the
syllabus.
{¶10} With that law in mind, we will now look at each of his arguments in turn.
1. Computation of Jail-Time Credit
{¶11} Bowers first argument concerns an alleged mathematical error; he is
arguing that the trial court incorrectly computed jail time credit. Thus, res judicata
does not bar this claim.
{¶12} The trial court’s amended sentencing judgment entry states, “Credit for
eleven (11) days for time already served shall be applied plus any additional time
awaiting conveyance.” 01/20/12 J.E. As aforementioned, Bowers claims that he was
in jail on these charges for a total of 26 days. Specifically, he contends that he was
in jail from January 15, 2011 to January 26, 2011 and from January 5, 2012 to
January 18, 2012. Given the date of the indictment and the bond entries in the case,
the 11 days from January 15, 2011 to January 26, 2011 is when Bowers was being
held in jail awaiting release on bond. The trial court correctly credited him for these
11 days. Sentencing occurred on January 5, 2012. That date to January 18, 2012 is
the additional time he was awaiting conveyance to prison. The trial court’s judgment
clearly indicates that the Ohio Adult Parole Authority is to give Bowers credit for the
time he served while awaiting conveyance. The Ohio Department of Rehabilitation
and Corrections’ website indicates that he was admitted into Belmont Correctional
Institute on January 18, 2012. Furthermore, it indicates that his release date is
December 13, 2013. Therefore, it is clear that the Ohio Adult Parole Authority
followed the trial court’s order and did give Bowers credit for the time he served while
awaiting conveyance to prison. Consequently, there is no error in the computation of
credit for time served. Bowers’ argument to the contrary lacks merit.
2. Application of Fugate
{¶13} This leads us to Bowers’ second argument that the trial court
misapplied the Fugate holding. We have previously held that the argument that the
court misapplied the Fugate holding is a purely legal argument and should have been
raised in a direct appeal. McKinney, 2013-Ohio-4357, ¶ 8 (however, we still
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continued to determine if Fugate was misapplied). Accordingly, the argument is
barred by res judicata. Id.{¶14} Even if the matter was not barred by res judicata, given the facts of this
case, it must be concluded that the trial court did not misapply Fugate. In Fugate, the
offender was found guilty of theft and burglary in Case No. 05CR4367. In Case No.
05CR1414 he was on community control for a previous conviction of receiving stolen
property. Following the indictment in 05CR4367, the probation department moved to
revoke his community control. A hearing on that motion was held immediately before
sentencing Fugate on the new charges. The probation officer informed the court that
Fugate had over 200 days of jail-time credit. The prosecutor argued that the jail-time
credit should only be applied to the sentence for violating the community control. The
court imposed a prison term of 12 months for the community-control violation, noting
a jail-time credit of 213 days. The court also stated that the sentence was to run
concurrently with the sentences to be imposed for the burglary and theft convictions
in the new case. The court then imposed a two-year prison term for the burglary
conviction and a six month term for the theft offense. Those terms were ordered to be
concurrent with each other and concurrent with the sentence for the community
control violation. However, no jail-time credit was allowed for the burglary and theft
convictions. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, ¶ 3-6.
{¶15} Fugate appealed and argued that he should have received jail-time
credit of 213 days toward each of his concurrent prison terms. The Ohio Supreme
Court agreed and stated in the syllabus, “When a defendant is sentenced to
concurrent prison terms for multiple charges, jail-time credit pursuant to R.C.
2967.191 must be applied toward each concurrent prison term.” Id. at syllabus.
{¶16} In reaching that determination, the Court noted that jail-time credit is
governed by R.C. 2967.191 and the Ohio Administrative Code. It explained that Ohio
Adm.Code 5120–2–04(F) applies to concurrent sentences, while Ohio Administrative
Code 5120-2-04(G) applies to consecutive sentences. Provision (F) specifically
provides that “[i]f an offender is serving two or more sentences, stated prison terms
or combinations thereof concurrently, the adult parole authority shall independently
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reduce each sentence or stated prison term for the number of days confined for that
offense.” Conversely, provision (G) provides that for consecutive terms, jail-time
credit is to be applied only once. After noting these provisions, the Court then
explained:
Thus, * * * when concurrent prison terms are imposed, courts do
not have the discretion to select only one term from those that are run
concurrently against which to apply jail-time credit. R.C. 2967.191
requires that jail-time credit be applied to all prison terms imposed for
charges on which the offender has been held. If courts were permitted
to apply jail-time credit to only one of the concurrent terms, the practical
result would be, as in this case, to deny credit for time that an offender
was confined while being held on pending charges. So long as an
offender is held on a charge while awaiting trial or sentencing, the
offender is entitled to jail-time credit for that sentence; a court cannot
choose one of several concurrent terms against which to apply the
credit.
Fugate at ¶ 11-12.
{¶17} Given the holding in Fugate, Bowers is correct that he is entitled to 11
days credit on each charge. That said, there is no indication that he was not given
credit for 11 days on each charge. The trial court’s judgment entry did not state that
he was only entitled to 11 days on one of the charges. Although Fugate dealt with
multiple offenses in one case, the focus was on the multiple cases and those
sentences running concurrent. When there are multiple cases where the sentences
are run concurrent, it is necessary to state in each case that the credit is given in
each case. However, where there is only one case with multiple offenses, when the
trial court states that the sentences are to run concurrent and generally states that an
offender is entitled to so many days of jail-time credit, that statement applies to all
charges unless otherwise specified. Furthermore, given that his release date is
December 13, 2013 and the fact that he was sentenced on January 5, 2012, it is
clear that 11 days plus the number of days awaiting conveyance was applied to both
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sentences. Or in other words, there is no evidence here that jail-time credit was not
given on both charges.
{¶18} Therefore, even if Bowers’ Fugate argument was not barred by res
judicata, we could not find that there was a misapplication of the Fugate holding.
Conclusion
{¶19} For the foregoing reasons, the judgment of the trial court denying the
motion for jail-time credit is hereby affirmed.
Donofrio, J., concurs.
DeGenaro, P.J., concurs.