State v. Humphrey

2012 Ohio 1826

• Court: Ohio Court of Appeals
• Decided: April 16, 2012
• Docket: 12CA3318
• Status: Published

Opinion

[Cite as State v. Humphrey, 2012-Ohio-1826.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY

State of Ohio, : Case No. 12CA3318

Plaintiff-Appellee, : DECISION AND JUDGMENT ENTRY v. :

Jeffrey W. Humphrey, : RELEASED 04/16/12

Defendant-Appellant. :

{¶ 1} After reviewing the notice of appeal filed in this matter, we issued an order

directing Appellant Jeffrey W. Humphrey to file a memorandum addressing whether the

entry appealed from is a final appealable order. Humphrey has filed a memorandum

arguing that the trial court’s entry overruling his motion for jail time credit is a final

appealable order, and the State of Ohio has filed a memorandum arguing that it is not.

After reviewing the memoranda and the relevant law, we hereby DISMISS this appeal

because the entry appealed from is not a final appealable order.

I.

{¶ 2} Humphrey pled no contest and was found guilty of complicity to breaking and

entering in violation of R.C. 2923.03, a fifth degree felony; possession of criminal tools in

violation of R.C. 2923.24, a fifth degree felony; and tampering with evidence in violation of

R.C. 2921.12, a third degree felony. The Ross County Court of Common Pleas sentenced

Humphrey to 12 months in prison for both complicity to breaking and entering and

possession of criminal tools. The court also sentenced Humphrey to five years

incarceration for the tampering with evidence conviction. The trial court ordered that all

sentences be served concurrently and awarded 21 days of jail time credit as of February Ross App. No. 12CA3318 2

16, 2010, along with future custody days while Humphrey awaited transportation to the

appropriate state institution. The sentencing entry was journalized on March 5, 2010.

{¶ 3} Humphrey filed a timely notice of appeal challenging the trial court’s denial of

his motion to suppress and failure to merge allied offenses of similar import, but did not

challenge the trial court’s calculation of his jail time credit. We affirmed the judgment of

the trial court. State v. Humphrey, 4th Dist. No. 10CA3150, 2010-Ohio-5950. However,

the Supreme Court of Ohio accepted Humphrey’s discretionary appeal, vacated our

judgment on the second assignment of error, and remanded the case for application of

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. State v.

Humphrey, 128 Ohio St.3d 397, 2011-Ohio-1426, 944 N.E.2d 1172. Upon remand, we

again affirmed the judgment of the trial court. State v. Humphrey, 4th Dist. No.

10CA3150, 2011-Ohio-5238.

{¶ 4} On January 19, 2012, Humphrey filed a motion for jail time credit asserting

that he should have been credit for an additional 122 days he was held in the Ross County

Jail from September 11, 2009 to March 10, 2010. The trial court overruled this motion and

it is from this entry that Humphrey appeals.

II.

{¶ 5} Pursuant to R.C. 2949.08(B),

The record of the person’s conviction shall specify the total number of days, if any, that the person was confined for any reason arising out of the offense for which the person was convicted and sentenced prior to delivery to the jailer, administrator, or keeper under this section. The record shall be used to determine any reduction of sentence under division (C) of this section.

R.C. 2967.191 mandates the department of rehabilitation and correction to reduce a

prisoner’s sentence “by the total number of days that the prisoner was confined for any Ross App. No. 12CA3318 3

reason arising out of the offense for which the prisoner was convicted and sentenced[.]”

The trial court is responsible for calculating the amount of jail time credit and including it in

the sentencing entry. State v. Keith, 9th Dist. No. 08CA9362, 2009-Ohio-76, citing State

ex rel. Rankin v. Ohio Adult Parole Auth., 98 Ohio St.3d 476, 2003-Ohio-2061, 786 N.E.2d

1286, at ¶ 7.

{¶ 6} Because the number of days of jail time credit a defendant is entitled to must

be stated in the trial court’s sentencing entry, any challenge to that calculation must be

made on appeal from the trial court’s entry imposing sentence. Rankin at ¶ 10. Although

Humphrey appealed his conviction, he did not challenge the trial court’s jail time credit

calculation. The doctrine of res judicata bars a litigant from raising any issue, claim, or

defense that could have been previously raised but was not. See State v. Chafin, 10th

Dist. No. 06AP-1108, 2007-Ohio-1840, at ¶ 11. Having failed to raise this issue on direct

appeal, Humphrey is barred by the doctrine of res judicata from raising this issue at this

time.

{¶ 7} More importantly, the trial court’s entry denying Humphrey’s motion for jail

time credit is not a final appealable order. It is well established that an order must be final

before it can be reviewed by an appellate court. See Section 3(B)(2), Article IV of the

Ohio Constitution. See, also, General Acc. Ins. Co. v. Insurance Co. of North American,

44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989). If an order is not final and appealable, then

an appellate court has no jurisdiction to review the matter and must dismiss the appeal.

Lisath v. Cochran, 4th Dist. No. 92CA25, 1993 WL 120627 (Apr. 15, 1993); In re Christian,

4th Dist. No. 1507, 1992 WL 174718 (July 22, 1992).

{¶ 8} R.C. 2505.02 defines a final order as “[a]n order that affects a substantial

right in an action that in effect determines the action and prevents a judgment,” or “[a]n Ross App. No. 12CA3318 4

order that affects a substantial right made in a special proceeding or upon a summary

application in an action after judgment.” R.C. 2505.02(B)(1) and (B)(2). Humphrey had no

substantial right to have his final sentencing entry, setting forth his jail time credit,

reconsidered. Therefore, the trial court’s denial of his motion for jail time credit did not

affect a substantial right. See State v. Keith, 9th Dist. No. 08CA9362, 2009-Ohio-76 (trial

court’s entry recalculating jail time credit was nullity because trial court cannot reconsider

its final judgment so appeal was not from a final appealable order); State v. Lemaster, 4th

Dist. No. 02CA20, 2003-Ohio-4557 (denial of motion to correct and/or modify sentence

was not final appealable order because no substantial right to have sentence modified);

State v. Tully, 5th Dist No. 2001CA313, 2002-Ohio-1290 (denial of request for jail time

credit was not final appealable order).

{¶ 9} We note that a trial court may amend the jail time credit awarded in its final

sentencing entry to correct a clerical mistake or a mathematical error pursuant to Crim.R.

36. See State v. McLain, 6th Dist. No. L-07-1164, 2008-Ohio-481, and State v. Chafin,

10th Dist. No. 06AP-1108, 2007-Ohio-1840. And, a trial court’s denial of a motion to

correct jail time credit may be a final appealable order if the trial court refuses to correct a

clerical mistake or mathematical error in calculating jail time. McLain at ¶ 11. However,

because Humphrey is seeking credit for a category of time, we determine that he is

making a substantive claim for jail time credit rather than seeking to correct a calculation

error by the trial court. See Chafin at ¶ 12.

III.

{¶ 10} We conclude that Humphrey should have appealed the trial court’s

calculation of his jail time credit on direct appeal. Because the trial court’s entry denying

his motion for jail time credit is not a final appealable order, we do not have jurisdiction to Ross App. No. 12CA3318 5

consider this appeal from that entry. Therefore, we DISMISS this appeal.

{¶ 11} The clerk shall serve a copy of this order on all counsel of record at their last

known addresses. The clerk shall serve appellant by certified mail, return receipt

requested. If returned unserved, the clerk shall serve appellant by ordinary mail. SO

ORDERED.

Abele, P.J. & McFarland, J.: Concur.

FOR THE COURT

________________________________ William H. Harsha Administrative Judge