State v. McKinney

[Cite as State v. McKinney, 2013-Ohio-4357.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 12 MA 163
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
JERMAINE McKINNEY )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 06 CR 16
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Jermaine McKinney, Pro se
#A520-677
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901
JUDGES:
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: September 30, 2013
[Cite as State v. McKinney, 2013-Ohio-4357.]
WAITE, J.
{¶1} Pro se Appellant Jermaine McKinney appeals the judgment of the
Mahoning County Court of Common Pleas partially sustaining his motion for jail-time
credit after he pleaded guilty and was sentenced on seven counts of felonious
assault against a peace officer. The court granted Appellant 263 days of credit, but
Appellant believes it should have been 1,200 days because he was in jail from the
date of his arrest on January 1, 2006, until the date he entered his guilty plea and
was sentenced on April 16, 2009. In support, Appellant cites State v. Fugate, 117
Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, which stands for the proposition
that: “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. Appellant contends he was given a
concurrent sentence in this case and in a separate murder case in Trumbull County,
and that he should be given 1,200 days credit in both cases for all the time he was
incarcerated in both cases
{¶2} Appellee contends that the issue raised in this appeal is a purely legal
question and not a matter of simply correcting a mathematical error in applying jail-
time credit, and as such, the matter should have been raised in a direct appeal and is
now res judicata. Appellee asserts that Appellant was also being held in Trumbull
County on separate murder charges while this case was being prosecuted. He was
arrested on January 1, 2006, for the Trumbull County murders, and was convicted
and sentenced to two terms of life imprisonment without parole on December 11,
2006. Appellee contends that Appellant was not entitled to credit in the instant case
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for the time he spent in jail or prison for the unrelated Trumbull County case.
Appellee is correct. The argument raised by Appellant is a purely legal argument,
and in fact, Appellant misinterprets the legal issues resolved in the Fugate case.
Fugate does not explain how to calculate jail-time credit. It explains how jail-time
credit is applied when concurrent sentences are imposed. Appellant is trying to
challenge the court's method of calculating jail-time credit, but he cites no relevant
legal support as to why the court's calculation was erroneous. Appellee correctly
cites to Ohio law that a defendant is not entitled to jail-time credit for incarceration
arising from a different criminal offense. Further, since Appellant could have raised
this legal argument in a direct appeal and did not, the matter is res judicata. The
judgment of the trial court is affirmed.
Background
{¶3} On January 1, 2006, Appellant was arrested for shooting at peace
officers while he was at large for the murders of Rebecca Cliburn and Wanda
Rollyson. Fourteen charges of felonious assault were filed against him in
Youngstown Municipal Court. On January 10, 2006, he was bound over to the
Mahoning County Grand Jury under Mahoning County Case No. 2006CR16. Just
prior to this, on January 6, 2006, a nine-count indictment was issued against him in
Trumbull County Case No. 05-CR-948. He was charged with aggravated murder and
numerous other charges. He was tried and convicted by jury in Trumbull County on
November 6, 2006. He was sentenced on December 11, 2006, to two terms of life
imprisonment without parole for the two murders, ten years in prison for aggravated
burglary, ten years for aggravated robbery, ten years for kidnapping, and eight years
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for aggravated arson, all to be served consecutively. He was later sent to the
Mansfield Correctional Institution to serve out his prison term.
{¶4} On July 25, 2007, the Mahoning County Clerk of Courts received a
notice of untried indictments from the Mansfield Correctional Institution pertaining to
Mahoning County Criminal Case No. 2006CR16. The clerk notified the Mahoning
County Prosecutor. On August 30, 2007, Appellant was indicted in Mahoning County
on fourteen counts of felonious assault against a peace officer, along with
corresponding firearm specifications. On April 16, 2009, Appellant entered a plea of
guilty to seven counts of felonious assault against a peace officer, R.C. 2903.11(A)(2)
and (D)(1)(a), and the remaining charges and the firearm specifications were
dismissed. On April 16, 2009, Appellant was sentenced to seven years in prison on
the felonious assault charges, to be served concurrently with the sentence in
Trumbull County Case No. 05-CR-948. He was awarded 180 days of jail-time credit.
{¶5} On October 27, 2010, Appellant filed a motion for jail-time credit. His
theory that he was due to receive more jail-time credit was based on State v. Fugate.
The state opposed the motion. The court overruled the motion on January 23, 2012.
An order overruling a motion for jail-time credit is generally not a final appealable
order. State v. Carter, 7th Dist. No. 09 MA 10, 2009-Ohio-6251, ¶9.
{¶6} Appellant filed a second motion for jail-time credit on June 22, 2012,
once again referencing Fugate. The court partially granted the motion on August 13,
2012. The court awarded Appellant 263 days of jail-time credit. This appeal
followed. Since the court actually granted the second motion for jail-time credit, this
order was final and appealable.
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ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
BY NOT GIVEN [SIC] THE APPELLANT CREDIT FOR ALL TIME
WHICH HE SPENT IN CONFINEMENT AWAITING A FINAL
DISPOSITION OF HIS CASE IN State v. Jermaine McKinney,
Mahoning County Court of Common Pleas Case No. 06-CR-16 WHICH
TIME BEGAN ON JANUARY 1, 2006 AND ENDED ON APRIL 16, 2009
AND WHICH EQUALS TWELVE-HUNDRED (1200) DAYS AS
MANDATED BY R.C. 2967.191 IN VIOLATION OF APPELLANT'S
RIGHT TO DUE PROCESS AND EQUAL PROTECTION OF THE LAW
AS GUARANTEED BY THE 14TH AMENDMENT TO THE UNITED
STATES CONSTITUTION
{¶7} Appellant argues that his sentence in this matter was ordered to be
served concurrently with the sentence in Trumbull County Case No. 05-CR-948.
Appellant contends that, under State v. Fugate, a defendant is entitled to have jail-
time credit applied to all related concurrent sentences. Fugate held that: “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. Appellant interprets Fugate to mean that all the time he spent
in jail or prison, from the time he was arrested on January 1, 2006, until the day he
was sentenced on April 16, 2009, should be applied to his sentence in this case.
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Appellant believes this amounts to 1,200 days. The trial court awarded him 263
days. Thus, Appellant concludes that he is owed the remaining 937 days.
{¶8} Appellee argues that the issue under review in this appeal is res
judicata because it could have been raised in the direct appeal of his conviction and
sentence. 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.) State v. Perry, 10 Ohio St.2d 175, 226
N.E.2d 104 (1967), paragraph nine of the syllabus. We have held that “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. 10 CO 20, 2011-
Ohio-3167, ¶13. Appellant's theory in this appeal is that, pursuant to State v. Fugate,
if it were correctly applied, he should have been awarded 1,200 days of jail-time
credit. Since this is a purely legal argument, Appellant should have raised it on direct
appeal. This issue is now res judicata and cannot be raised in a subsequent appeal.
{¶9} Even if the matter was not res judicata, Appellant's argument is not
persuasive. The issue under review in Fugate was whether jail-time credit that was
awarded in a probation revocation case should also be calculated towards
defendant’s sentence in the corresponding criminal case that prompted the probation
revocation in the first place. In Fugate, the defendant was on community control after
being convicted of receiving stolen property. He was later charged with theft and
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burglary. Probation revocation charges were filed in the earlier case because Fugate
committed a crime while serving community control sanctions. He was later
convicted of the theft and burglary charges, and he was sentenced in both cases at
the same time. He was sentenced to 12 months in prison for the community control
violation, with 213 days jail-time credit given. He was sentenced to two years in
prison on the theft and burglary charges, and no jail-time credit was given. The
sentences were ordered to be served concurrently. Fugate at ¶3.
{¶10} The issue in Fugate was whether the 213 days of jail-time credit should
also have been applied in his second case because his prison terms were ordered to
be served concurrently. Fugate was primarily attempting to interpret and correctly
apply R.C. 2967.191, which states that “[t]he department of rehabilitation and
correction shall reduce the stated prison term of a prisoner * * * by the total number of
days that the prisoner was confined for any reason arising out of the offense for
which the prisoner was convicted and sentenced, including confinement in lieu of bail
while awaiting trial * * *.” Id. at ¶12, 22. In Fugate, the defendant was being held in
jail simultaneously awaiting sentencing for both probation revocation and theft and
burglary. Thus, there was no question that he was confined in lieu of bail awaiting
trial on both cases simultaneously.
{¶11} The Fugate Court ruled for the defendant that, pursuant to R.C.
2967.191, the 213 days should have been applied to both cases. Fugate held that:
“When a defendant is sentenced to consecutive terms, the terms of imprisonment are
served one after another. Jail-time credit applied to one prison term gives full credit
that is due, because the credit reduces the entire length of the prison sentence.
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However, when a defendant is sentenced to concurrent terms, credit must be applied
against all terms, because the sentences are served simultaneously. If an offender is
sentenced to concurrent terms, applying credit to one term only would, in effect,
negate the credit for time that the offender has been held. To deny such credit would
constitute a violation of the Equal Protection Clause. Therefore we hold that 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 ¶22.
{¶12} A number of courts, including this Court, have concluded that Fugate
does not explain how to calculate jail-time credit. Instead, it serves only to explain
how to apply such credit to concurrent or consecutive sentences once it is calculated.
State v. Maynard, 10th Dist. No. 08AP-43, 2008-Ohio-3829, ¶18; State v. Mason, 7th
Dist. No. 10 CO 20, 2011-Ohio-3167, ¶16; State v. Dailey, 3d Dist. No. 8-10-01,
2010-Ohio-4816, ¶28. Fugate did not negate the basic principle that “a defendant is
not entitled to jail-time credit for time incarcerated in another county for unrelated
offenses.” State v. Daughenbaugh, 3d Dist. No. 16-09-05, 2009-Ohio-3823, ¶19.
Further, it is apparent that once Appellant was convicted and sentenced in the
Trumbull County murder case on December 11, 2006, he was no longer being
confined in lieu of bail in the instant case. He was confined in prison due to his
murder conviction. Thus, Appellant was not entitled to anything even remotely
approaching 1,200 days of jail-time credit in this case. At most, he may be entitled to
time from the day of arrest (January 1, 2006) until the date he began serving his
prison term for murder (December 11, 2006). Appellant presents no reason to
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question the trial court’s calculation of 263 days of jail-time credit, and we will
presume that the calculation was correct.
{¶13} Whether under the principle of res judicata, or because Appellant
misinterprets the Fugate case on which he relies in support of this appeal, Appellant's
assignment of error must be overruled. Appellant should have raised the legal
argument regarding his jail-time credit in a direct appeal after he was sentenced in
2009, but he did not. Thus, the matter is res judicata. Additionally, Fugate does not
explain how to calculate jail-time credit and is inapplicable to Appellant's situation.
Fugate explains only the application of jail-time credit once it is calculated, and it is
clear that Appellant does not correctly interpret how to calculate jail-time credit.
There is no reversible error in this case, and the judgment of the trial court is
affirmed.
Vukovich, J., concurs.
DeGenaro, P.J., concurs in judgment only.