State v. Marcum

2014 Ohio 5373

• Court: Ohio Court of Appeals
• Decided: December 1, 2014
• Docket: 14CA13
• Status: Published

Opinion

[Cite as State v. Marcum, 2014-Ohio-5373.]

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

STATE OF OHIO, : Case No. 14CA13

Plaintiff-Appellee, :

v. : DECISION AND JUDGMENT ENTRY JAMES E. MARCUM, :

Defendant-Appellant. : RELEASED: 12/01/2014

APPEARANCES:

Jorden M. Meadows, Logan, Ohio, for appellant.

James E. Marcum, Lancaster, Ohio, pro se appellant.

Laina R. Fetherolf, Hocking County Prosecuting Attorney, Logan, Ohio, for appellee. Harsha, J. {¶1} The Hocking County Court of Common Pleas revoked James E. Marcum’s

community control and reimposed a previously suspended one-year prison term. In its

sentencing entry the trial court granted Marcum jail-time credit for 90 days as of April

17, 2014 and additional days in custody awaiting transportation to prison. Instead of

timely appealing his sentence to contest the trial court’s jail-time credit order, Marcum

filed a motion for jail-time credit. The trial court denied the motion, but Marcum did not

timely appeal from the judgment. Marcum then filed a second motion for jail-time credit,

which the trial court also denied. This appeal followed.

{¶2} The trial court appointed him counsel, who advises us that he has

reviewed the record and can discern no meritorious claims for appeal. Counsel moved

to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967) and submitted potential assignments of error. Upon being served a copy of his Hocking App. No. 14CA13 2

counsel’s Anders brief, Marcum filed a pro se brief raising additional assignments of

error.

{¶3} After independently reviewing the record, we agree with counsel’s

assessment. We find this appeal is wholly frivolous because Marcum cannot challenge

the trial court’s sentencing entry or its denial of his first motion for jail-time credit

because he did not timely appeal those judgments. Moreover, res judicata bars his

claims for jail-time credit in his second motion for jail-time credit because he could have

raised these claims in a direct appeal from his sentence or the judgment denying his

first motion. Therefore, we grant his appointed counsel’s motion to withdraw and affirm

the judgment of the trial court.

I. FACTS

{¶4} In June 2011, Marcum, with the assistance of counsel pleaded guilty to

passing bad checks, a felony of the fifth degree, and received a sentence of one year in

prison. The trial court suspended his prison term and placed him on community control

for three years. As one of the conditions of community control, the trial court ordered

Marcum to enter and successfully complete the Southeastern Probation Treatment

Alternative (“SEPTA”) program, and that part of his sentence would be concurrent with a

Perry County sentence that he was already serving.

{¶5} Shortly thereafter, Marcum advised the trial court that he had changed his

mind about participating in the ordered SEPTA program. In September 2011, the state

requested that Marcum’s community control be revoked because he had violated the

conditions by failing to follow the court’s order to participate in and successfully

complete the SEPTA program. The trial court issued a nunc pro tunc sentencing order Hocking App. No. 14CA13 3

that removed the prior term that his participation in the SEPTA program would be

concurrent with his Perry County sentence. In October 2011, Marcum, represented by

counsel, pleaded guilty to violating the conditions of his community control, and in

November 2, 2011 entry, the trial court ordered Marcum to continue his community

control for his conviction for passing bad checks until his acceptance into the SEPTA

program. The trial court granted Marcum 90 days jail-time credit as of October 27,

2011.

{¶6} After his counsel moved to withdraw upon filing an Anders brief, we

granted the motion, but remanded the matter to the trial court because of a lack of

clarity in the trial court’s November 2011 judgment entry. In January 2013, the trial

court issued a nunc pro tunc entry clarifying that Marcum’s original three-year period of

community control, initially imposed after his conviction for passing bad checks,

remained unchanged after his conviction for violating his community control conditions.

We held that the trial court erred when it imposed court costs and costs of prosecution

for the revocation proceeding on Marcum because it failed to orally notify him of this and

deprived him of the opportunity to claim indigency and seek a waiver of the payment of

these costs. State v. Marcum, 4th Dist. Hocking No. 11CA30, 2013-Ohio-951. We

reversed that portion of the trial court’s judgment and remanded the cause to the trial

court for the limited purpose of allowing Marcum to move the court for the specified

waiver of costs. Id. at ¶ 4. On remand, the trial court issued an entry finding Marcum to

be indigent and waiving costs.

{¶7} In March 2014, the state again requested that Marcum’s community

control be revoked because he violated the following conditions: (1) failing to notify his Hocking App. No. 14CA13 4

supervising probation officer of his change of residency; (2) failing to report to his

supervising probation officer as instructed; and (3) failing to pay his restitution and court

costs as ordered. Marcum waived his right to counsel to defend against the revocation.

An Adult Parole Authority (“APA”) holder was placed on Marcum for the alleged

community control violations on March 14, 2014, but he was apparently already in

custody and awaiting sentencing on a pending charge of violating a protection order in

the Hocking Municipal Court.

{¶8} In April 2014, Marcum admitted violating some of the terms of his

community control and the trial court found him guilty, revoked his community control,

and ordered him to serve his previously suspended one-year sentence for passing bad

checks. In its April 21, 2014 judgment entry, the trial court granted Marcum jail-time

credit of 90 days—as it had previously done in its November 2, 2011 judgment entry—

as well as “future custody days while the defendant awaits transportation to an

appropriate penal institution.”

{¶9} Marcum did not appeal the trial court’s judgment entry. Instead, on June

4, 2014, he filed a pro se motion for sentence modification and jail-time credit. In his

jail-time credit argument Marcum claimed that he was entitled to an additional 24 days

of jail-time credit after the APA holder was placed on him in March 2014. The trial court

denied Marcum’s motion for sentence modification and then, on June 11, 2014, denied

his motion for jail-time credit because the time that he sought to have credited “was

served on a Municipal court case.” Marcum did not appeal the judgment denying his

motion for jail-time credit. Hocking App. No. 14CA13 5

{¶10} On July 21, 2014, Marcum filed a second pro se motion for jail-time credit.

In this motion, he claimed that he was entitled to the following additional jail-time credit:

(1) 194 days that he was incarcerated at the Southeastern Regional Jail from March 2,

2011 to September 12, 2011, when his sentence for passing bad checks was originally

to be served concurrently with his then-pending Perry County sentence for an

unspecified conviction; and (2) 42 days for the time he was incarcerated at the

Southeastern Regional Jail from March 14, 2014 to April 25, 2014 after the APA placed

a holder on him for his most recent community-control violations and until he was

conveyed to prison after he was sentenced on those charges. On July 22, 2014, the

trial court denied his second motion for jail-time credit “for the same reason it was

overruled on June 11, 2014.” This appeal followed, and the trial court appointed

counsel for Marcum.

{¶11} In his pro se notice of appeal Marcum specified that he was appealing

from the trial court’s July 22, 2014 judgment denying his second motion for jail-time

credit. He attached both that judgment as well as the trial court’s June 11, 2014

judgment denying his first motion for jail-time credit.

II. ASSIGNMENTS OF ERROR

{¶12} Although Marcum appealed the denial of his second motion for jail-time

credit, his appellate counsel filed a motion to withdraw and an Anders brief. In State v.

Counts, 4th Dist. Lawrence No. 14CA1, 2014-Ohio-3390, ¶ 3, quoting State v. Lester,

4th Dist. Vinton No. 12CA689, 2013-Ohio-2485, ¶ 3, we discussed the pertinent Anders

requirements:

“In Anders, the United States Supreme Court held that if counsel determines after a conscientious examination of the record that the case is Hocking App. No. 14CA13 6

wholly frivolous, counsel should so advise the court and request permission to withdraw. Counsel must accompany the request with a brief identifying anything in the record that could arguably support the appeal. Anders at 744. The client should be furnished with a copy of the brief and given time to raise any matters the client chooses. Id. Once these requirements are met, we must fully examine the proceedings below to determine if an arguably meritorious issue exists. Id. If so, we must appoint new counsel and decide the merits of the appeal. Id. If we find the appeal frivolous, we may grant the request to withdraw and dismiss the appeal without violating federal constitutional requirements or may proceed to a decision on the merits if state law so requires. Id.”

{¶13} Marcum’s appellate counsel complied with these procedural requirements

by filing a motion to withdraw as counsel and serving a copy of his Anders brief on

Marcum. In the Anders brief, counsel specifies the following potential assignments of

error:

1. Appellant may assert, as an assignment of error that the trial court erred by improperly denying appellant’s motion for jail time credit first filed with the Court on June 04, 2014 and refiled on July 21, 2014.

2. Appellant may assert, as an assignment of error, that the trial court erred by failing to comply with Ohio Revised Code § 2967.191 in calculating appellant’s jail time credit.

{¶14} In addition, Marcum has filed a pro se brief in which he assigns the

following errors:

1. On September 28, 2011 the trial court errored in issuing the “nunc pro tunc” sentencing entry, when they failed to include Marcum’s sentence was to be concurrent with Perry County, ultimately making it harder for Marcum to receive full credit of all his jail time pursuant to Ohio Revised Code 2967.191 for a reduction of his sentence.

2. On March 14, 2014 the Hocking County Adult Parole Authority issued a holder against Marcum pursuant to Ohio Revised Code 2951.08 or 2967.15 to commit and hold Marcum in state custody (see Exhibit B attached to appeal) which the trial court errored and did not apply according [to] Ohio Revised Code 2967.191. Hocking App. No. 14CA13 7

3. The trial court errored by failing to properly apply and calculate Marcum’s jail time credit pursuant to Ohio Revised Code 2967.191.

III. LAW AND ANALYSIS

A. Jurisdiction

{¶15} Because Marcum’s assignments of error raise similar issues and are not

argued separately, we address them jointly. We first consider Marcum’s challenge to

the trial court’s September 28, 2011 nunc pro tunc sentencing entry and June 11, 2014

{¶16} Under App.R. 3(A), the notice of appeal “shall designate the judgment,

order or part thereof appealed from.” “We are without jurisdiction to review a judgment

or entry not designated in an appellant’s notice of appeal.” State v. Walton, 4th Dist.

Washington No. 13CA9, 2014-Ohio-618, ¶ 6, citing State v. Waters, 8th Dist. Cuyahoga

No. 97656, 2012-Ohio-3809, ¶ 10. Because Marcum’s notice of appeal specified that

he was only appealing the trial court’s July 22, 2014 judgment, we lack jurisdiction to

address his arguments contesting the trial court’s September 2011 nunc pro tunc

sentencing entry and June 11, 2014 judgment denying his first motion for jail-time credit.

{¶17} Moreover, Marcum filed his notice of appeal on August 12, 2014. Under

App.R. 4(A), a notice of appeal must be filed within 30 days of entry of judgment or

order being appealed. Because Marcum did not file a timely appeal from the trial court’s

sentencing entries and judgment denying his first motion for jail-time credit, we lack

jurisdiction to consider those parts of his assignments of error that challenge the

propriety of those judgments. See, e.g., State v. Francis, 4th Dist. Meigs No. 10CA2,

2011-Ohio-4497, ¶ 12 (holding that if a party fails to file a notice of appeal within 30

days, as required by App.R. 4(A), the court lacks jurisdiction to entertain the appeal). Hocking App. No. 14CA13 8

{¶18} Conversely, Marcum filed a timely appeal from the trial court’s July 22,

2014 judgment denying his second motion for jail-time credit and he properly

designated that judgment in his notice of appeal. Therefore, we consider whether his

assignments of error pertinent to that judgment have arguable merit.

B. Res Judicata

{¶19} In his assignments of error Marcum asserts that the trial court erred in

denying his second motion for jail-time credit. In that motion, Marcum claimed that he

was entitled to an additional 194 days of jail-time credit for time he spent in jail from

March 2, 2011 to September 12, 2011 and an additional 42 days for time he spent in jail

from March 14, 2014 to April 25, 2014.

{¶20} In his motion Marcum did not cite the September 2012 amendment to R.C.

2929.119(B)(2)(g)(iii), which purports to confer the sentencing court with “continuing

jurisdiction to correct any error not previously raised at sentencing” in making a jail-time

credit determination in the trial court. Nor does he cite this statute on appeal.

Therefore, Marcum has forfeited any potential reliance on this provision on appeal. See

State v. Bradshaw, 4th Dist. Lawrence No. 14CA8, 2014-Ohio-3148, ¶ 8.

Consequently, we need not address this statutory provision.

{¶21} We have recognized that “[i]f a party fails to timely appeal a final order,

matters that could have been reviewed on appeal become res judicata and cannot be

reviewed in related or subsequent proceedings or appeals.” State v. Swayne, 4th Dist.

Adams Nos. 12CA952, 12CA953, and 12CA954, 2013-Ohio-3747, ¶ 24. The

applicability of res judicata is a question of law, which we determine independently.

State v. Tolliver, 4th Dist. Athens No. 12CA36, 2013-Ohio-3861, ¶ 12. Hocking App. No. 14CA13 9

{¶22} Res judicata barred Marcum from raising his claims for more jail-time

credit than had been provided by the trial court in its sentencing entries and the entry

denying his first motion for jail-time credit because he could have raised his claims in

appeals from these prior judgments. Bradshaw at ¶ 10; State v. Quinnie, 8th Dist.

Cuyahoga No. 100317, 2014-Ohio-1435, ¶ 16 (res judicata barred appellant from

raising jail-time credit claim in postconviction motion because he could have but did not

raise the issue in his direct appeal); State v. Spillan, 10th Dist. Franklin Nos. 06AP-50,

06AP-51, 06AP-52, and 06AP-750, 2006-Ohio-4788, ¶ 12 (“res judicata bars appellant

from raising the jail-time credit issue through the jail-time credit motions and subsequent

appeal of such motions, given that appellant, represented by counsel, could have raised

the issue on direct appeal”); State v. Williams, 3rd Dist. Allen No. 1-03-02, 2003-Ohio-

2576, ¶ 10 (res judicata barred appellant from raising claim for additional jail-time credit

in postconviction motion when he could have raised it in an appeal from his original

sentence).

{¶23} He could have raised his first claim of additional jail-time credit for time

served in jail from March 2, 2011 to September 12, 2011, when he appealed from the

trial court’s November 2, 2011 judgment on his first set of community control violations.

In that judgment the trial court first calculated that he was entitled to 90 days of jail-time

credit as of late October 2011. At the time, Marcum was represented by counsel.

{¶24} Marcum also could have raised his first claim and his remaining claim for

jail-time credit for time served in jail from March 14, 2014 to April 25, 2014 in a direct

appeal from the trial court’s April 24, 2014 judgment revoking his community control and

granting him jail-time credit for the previously specified 90 days. Although Marcum was Hocking App. No. 14CA13 10

not represented by counsel in the last revocation proceeding, he waived his right to

counsel to defend against the revocation.

{¶25} Furthermore, Marcum could have raised his claims in a timely appeal from

the trial court’s June 11, 2014 judgment denying his first motion for jail-time credit.

{¶26} Moreover, Marcum does not seek the correction of a mere mathematical

mistake or clerical error, which would not be barred by res judicata—he seeks a legal

determination of his entitlement to periods of time he claims he was confined on the

charges, which consists of time he was being held in custody on charges and sentences

in unrelated criminal cases. See Bradshaw, 4th Dist. No. 14CA8, 2014-Ohio-3148, ¶

11; State v. Smiley, 10th Dist. Franklin No. 11AP-266, 2012-Ohio-4126, ¶ 12 (“Appellant

did not challenge the issue of jail-time credit by way of direct appeal, and because his

motion for jail-time credit involves a substantive claim, and not merely clerical error, we

agree with the state that his motion is barred under the doctrine of res judicata”); State

v. Roberts, 10th Dist. Franklin No. 10AP-729, 2011-Ohio-1760, ¶ 11 (res judicata barred

motion for jail-time credit because appellant’s claim “requires a legal determination,

rather than the correction of a mathematical error” when he “is claiming jail-time credit is

due for a category of time, not simply the correction of the number of days within that

category”).

{¶27} Although the trial court did not rely on res judicata to deny Marcum’s

second motion for jail-time credit, reversal is not warranted even assuming that the

court applied an erroneous rationale. Stammco, L.L.C. v. United Tel. Co. of Ohio, 136

Ohio St.3d 231, 2013-Ohio-3019, 994 N.E.2d 408, ¶ 51 (“a reviewing court should not Hocking App. No. 14CA13 11

reverse a correct judgment merely because it is based on erroneous reasons”);

Bradshaw at ¶ 12.

{¶28} Therefore, Marcum’s potential and pro se assignments of error lack

arguable merit and are overruled. And our independent review of the record uncovers

no arguably meritorious issues for appeal.1

IV. CONCLUSION

{¶29} Accordingly, because the assignments of error lack arguable merit and

having independently discovered no arguably meritorious issues for appeal, we find this

appeal wholly frivolous, grant counsel’s motion to withdraw, and affirm the judgment of

the trial court.

JUDGMENT AFFIRMED.

JUDGMENT ENTRY

1 Even Marcum’s substantive jail-time claims are suspect and do not appear to be supported by the record. See, e.g., State v. Primack, 4th Dist. Washington No. 13CA23, 2014-Ohio-1771, ¶ 13 (defendant was not entitled to jail-time credit for confinement for different offenses than the one involved in the case). Hocking App. No. 14CA13 12

It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Hocking County Court of Common Pleas to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Abele, P.J. & McFarland, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________ William H. Harsha, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.