State v. Snyder

2013 Ohio 1135

• Court: Ohio Court of Appeals
• Decided: March 22, 2013
• Docket: 2013CA00006
• Status: Published

Opinion

[Cite as State v. Snyder, 2013-Ohio-1135.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: STATE OF OHIO : W. Scott Gwin, P.J. : William B. Hoffman, J. Plaintiff-Appellee : Patricia A. Delaney, J. : -vs- : Case No. 2013 CA 00006 : : JOSEPH SNYDER : OPINION

Defendant-Appellant

CHARACTER OF PROCEEDING: Criminal Appeal from Stark County Court of Common Pleas Case Nos. 2009-CR-2017(B), 2010-CR-0370(A), and 2010-CR-0074

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: March 22, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO JOSEPH SNYDER Prosecuting Attorney Inmate No. 591-517 Stark County, Ohio Loraine Correctional Institution 2500 S. Avon-Belden Road BY: KATHLEEN O. TATARSKY Grafton, Ohio 44044 Assistant Prosecuting Attorney Appellate Section 110 Central Plaza, South – Suite 510 Canton, Ohio 44702-1413 [Cite as State v. Snyder, 2013-Ohio-1135.]

Gwin, P.J.

{¶1} Appellant, Joseph Snyder, appeals from a judgment overruling his motion

for jail time credit. Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} In 2009 and 2010, the Stark County Grand Jury returned three indictments

against appellant on accumulated charges of twenty-five counts of breaking and

entering, eight counts of burglary, two counts of theft, one count of petty theft and four

counts of receiving stolen property. He pleaded guilty to all counts on August 23, 2010.

He was sentenced to an aggregate concurrent sentence of five years. By separate

entries filed September 13, 2010, he was given 256 days of credit for time served in

Case No 2009CR2017B, 233 days of credit for time served in Case No. 2010CR0074,

and 193 days of credit in case number 2010CR0370A. He did not appeal from these

entries.

{¶3} Appellant filed a motion for jail time credit seeking 256 days in each of the

three cases. The trial court overruled the motion on October 15, 2010. He did not

appeal this judgment.

{¶4} Appellant filed a second motion for jail time credit on November 15, 2012,

arguing that he is entitled to jail credit of 256 days in each of the three cases, based on

State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440. The trial court

overruled his motion on December 17, 2012. He assigns one error on appeal:

{¶5} “APPELLANT WAS DENIED EQUAL PROTECTION UNDER THE OHIO

AND UNITED STATES CONSTITUTION AND THE DECISION IN STATE V. FUGATE

AND STATE V. ANDERSON WHEN TRIAL COURT DENIED HIS MOTION FOR Stark County App. Case No. 2013-CA-00006 3

AGGREGATE JAIL TIME CREDIT FOR 3 CONCURRENT CASES ON DECEMBER 17,

2012.”

{¶6} This Court has previously held that an order overruling a defendant’s

subsequent motion for credit for jail time is not a final, appealable order, as the

defendant should have pursued a direct appeal from the original entry which established

jail time credit. State v. Magee, 5th Dist. No. 04-CA-13, 2005-Ohio-483, ¶8, citing State

v. Tulley, 5th Dist. No. 2001CA00313, 2002-Ohio-1290.

{¶7} In the instant case, as in Magee and Tulley, appellant failed to file an

appeal from the original entry concerning jail time credit filed by the court in September

13, 2010. An appeal as to that entry is untimely, as the time within which an appeal

must be filed is thirty days pursuant to App. R. 4(A). The December 17, 2012, judgment

is not a final, appealable order.

{¶8} Further, this Court has held that when a defendant has filed a second

motion for jail time credit after his first motion has been overruled, there is no difference

between this second motion and a motion for reconsideration of the trial court’s prior

ruling on the first motion for jail time credit. State v. Ward, 5th Dist. No. 2005-CA-0092,

2007-Ohio-301, ¶18. Because a motion for reconsideration is a nullity at the trial court

level, any judgment resulting from such a motion is also a nullity, and the appellate court

is without jurisdiction to review issues that should have been raised in an earlier appeal.

Id. at ¶19. Stark County App. Case No. 2013-CA-00006 4

{¶9} Because the judgment appealed from is not a final, appealable order, the

appeal is dismissed.

By: Gwin, P.J. and

Delaney, J. concur;

Hoffman, J. dissents

______________________________

JUDGES

WSG/r0308 Stark County App. Case No. 2013-CA-00006 5

Hoffman, J., dissenting

{¶10} I respectfully dissent from the majority’s analysis and disposition of this

appeal.

{¶11} While I recognize the ultimate result is the same as it pertains to

Appellant, I believe the entry appealed from is a final appealable order. I find the

argument raised is barred by res judicata; therefore, I would affirm the trial court’s

judgment rather than dismiss the appeal.

________________________________ HON. WILLIAM B. HOFFMAN [Cite as State v. Snyder, 2013-Ohio-1135.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : JOSEPH SNYDER : : Defendant-Appellant : CASE NO. 2013-CA-00006

For the reasons stated in our accompanying Memorandum-Opinion on file, the

appeal of the Stark County Court of Common Pleas is dismissed. Costs assessed to

appellant.

_________________________________