State v. DeVore

2019 Ohio 4034

• Court: Ohio Court of Appeals
• Decided: September 30, 2019
• Docket: 19-COA-12
• Status: Published

Opinion

[Cite as State v. DeVore, 2019-Ohio-4034.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J. -vs- Case No. 19-COA-012 ADAM M. DEVORE

Defendant-Appellee O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Ashland County Court of Common Pleas, Case No. 17-CRI-002

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 30, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHRISTOPHER R. TUNNELL ADAM M. DEVORE Ashland County Prosecuting Attorney State I.D. A704-923 Richland Correctional Institute COLE F. OBERLI P.O. Box 8107 Assistant Prosecuting Attorney 1001 South Olivesburg Road 110 Cottage Street Mansfield, Ohio 44901 Ashland, Ohio 44805 Ashland County, Case No. 19-COA-012 2

Hoffman, J. {¶1} Appellant Adam Devore appeals the judgment entered by the Ashland

County Common Pleas Court denying his motion to correct jail time credit. Appellee is

the state of Ohio.

STATEMENT OF THE CASE1

{¶2} On January 12, 2017, the Ashland County Grand Jury indicted appellant on

one count of rape in violation of R.C. 2907.02(A)(2), one count of abduction in violation

of R.C. 2905.02(A)(2), and one count of domestic violence in violation of R.C. 2919.25(A).

Following jury trial in the Ashland County Common Pleas Court, Appellant was acquitted

of rape, but convicted of abduction and domestic violence. The trial court sentenced

appellant to 36 months in prison on the abduction conviction and to 36 months in prison

on the domestic violence conviction, to be served consecutively to one another for an

aggregate prison sentence of 72 months.

{¶3} At sentencing, the trial court noted Appellant had 413 days of jail time credit.

The State informed the court 180 of those days were served pursuant to a sentence on

an unrelated misdemeanor assault case. The trial court accordingly gave Appellant 233

days of jail time credit.

{¶4} This Court affirmed the judgment of conviction and sentence, and the Ohio

Supreme Court denied Appellant’s appeal. State v. Devore, 5th Dist. Ashland No. 18-

COA-011, 2018-Ohio-4189, ¶¶ 40-41, appeal not allowed, 154 Ohio St.3d 1502, 2019-

Ohio-345, 116 N.E.3d 155, ¶¶ 40-41 (2019), and appeal not allowed, 155 Ohio St.3d

1 A rendition of the facts is unnecessary to our resolution of the issues raised in this appeal, but can be found in this Court’s opinion on direct appeal of Appellant’s conviction and sentence. See State v. Devore, 5th Dist. Ashland No. 18-COA-011, 2018-Ohio-4189. Ashland County, Case No. 19-COA-012 3

1457, 2019-Ohio-1759, 122 N.E.3d 217, ¶¶ 40-41 (2019), reconsideration denied, 156

Ohio St.3d 1467, 2019-Ohio-2892, 126 N.E.3d 1177, ¶¶ 40-41 (2019). Appellant’s motion

to reopen his appeal pursuant to App. R. 26(B) was also denied by this Court.

{¶5} On April 4, 2019, Appellant filed a motion for jail time credit. He argued the

court made a mathematical error in giving him 233 days of jail time credit, rather than 413

days. The trial court overruled the motion, finding the Ashland Municipal Court sentenced

Appellant to 180 days in jail on January 23, 2017, as a result of an assault conviction in

an unrelated case, and Appellant was not entitled to credit toward time served in the

instant case for those 180 days served.

{¶6} It is from the April 9, 2019, judgment of the Ashland County Common Pleas

Court Appellant prosecutes his appeal, assigning as error:

THE TRIAL COURT VIOLATED DEVORE’S DUE PROCESS AND

EQUAL PROTECTION RIGHTS UNDER THE FIFTH AND FOURTEENTH

AMENDMENTS OF THE U.S. CONSTITUTION WHEN THE TRIAL

COURT FAILED TO CONDUCT A HEARING FOR THE PURPOSES OF A

LEGAL DETERMINATION REGARDING JAIL-TIME CREDIT, AND

FAILED TO CREDIT AN ADDITIONAL 180 DAYS OF JAIL-TIME CREDIT

TO THE 233 DAYS ALREADY CREDITED, FOR A TOTAL OF 413 DAYS

OF JAIL-TIME CREDIT.

{¶7} Under the doctrine of res judicata, a final judgment and conviction bars a

convicted defendant who was represented by counsel from raising and litigating in any Ashland County, Case No. 19-COA-012 4

proceeding, except an appeal from that judgment, any defense or claimed lack of due

process that was raised or could have been raised by the defendant at trial, which resulted

in that judgment of conviction, or on appeal from that judgment. State v. Szefck, 77 Ohio

St.3d 93, 95, 1996–Ohio–337, 671 N.E.2d 233; State v. Perry, 10 Ohio St.2d 175, 180,

226 N.E.2d 104 (1967). The doctrine of res judicata has also been held to apply to a jail-

time credit motion alleging an erroneous legal determination on jail time credit. See, State

v. Chafin, 10th Dist. Franklin No. 06AP–1108, 2007–Ohio–1840; State v. Lomack, 10th

Dist. Franklin No. 04AP–648, 2005–Ohio–2716, ¶12. Issues regarding jail-time credit are

properly addressed on direct appeal. State ex rel. Rankin v. Ohio Adult Parole Authority,

98 Ohio St.3d 476, 479, 2003–Ohio–2061, 786 N.E.2d 1286, State ex rel. Jones v.

O'Connor, 84 Ohio St.3d 426, 1999–Ohio–470, 704 N.E.2d 1223; State v. Walker, 5th

Dist. Muskingum No. CT2007–0062, 2007–Ohio–6624.

{¶8} While it is true a defendant may appeal a trial court's denial of a post-

conviction motion to correct jail time credit, an appeal is available only if the trial court

refused to correct a clerical mistake or a mathematical error in calculating time. State v.

Allen, 5th Dist. Ashland No. 12-COA-003, 2012-Ohio-1599, ¶ 15. A claim jail time credit

was denied because days were not properly classified as arising under the instant offense

is a substantive claim which must be brought to the trial court's attention before

sentencing or raised on direct appeal. Id. Substantive claims are barred by res judicata.

Id.

{¶9} Appellant was represented by counsel on direct appeal, and failed to raise

the issue of improper calculation of jail time credit. Although Appellant now claims his

argument involves a mathematical error, it is clear from the trial court’s entry and the Ashland County, Case No. 19-COA-012 5

transcript of sentencing the trial court classified 180 days of jail time as time served under

an unrelated case. This is a substantive claim, not a claim of mathematical or clerical

error. Therefore, Appellant’s claim is barred by res judicata.

{¶10} Further, we find no error in the trial court’s denial of 180 additional days of

jail time credit. As noted by the court, these days were served based on a sentence from

the Ashland Municipal Court on an unrelated assault conviction. Time spent serving a jail

sentence in an unrelated case will not be credited toward another felony case, even if the

felony was pending at the time of the service of the jail sentence. State v. Morris, 5th

Dist. Tuscarawas No. 2017AP080025, 2018-Ohio-830, ¶19.

{¶11} The assignment of error is overruled.

{¶12} The judgment of the Ashland County Common Pleas Court is affirmed.

By: Hoffman, J. Gwin, P.J. and Baldwin, J. concur