[Cite as State v. Fitzgerald, 2013-Ohio-1893.]




                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 98723


                                       STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                              JEFFEREY FITZGERALD
                                                       DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                               Case Nos. CR-556480 and CR-559404

        BEFORE: Stewart, A.J., Boyle, J., and McCormack, J.

        RELEASED AND JOURNALIZED:                      May 9, 2013
FOR APPELLANT

Jefferey Fitzgerald, Pro Se
11701 Jesse Avenue
Cleveland, OH 44105


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Mollie Ann Murphy
          T. Allan Regas
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, A.J.:

       {¶1} This case came to be heard upon the accelerated calendar pursuant to App.R.

11.1 and Loc.R. 11.1, the record from the Cuyahoga County Court of Common Pleas, and

the briefs and oral arguments of the parties.     Defendant-appellant Jefferey Fitzgerald

pleaded guilty in two separate cases, CR-556480 and CR-559404, with the sentence

imposed in CR-559404 to be served concurrent with that imposed in CR-556480. In

CR-556480, the court granted Fitzgerald 108 days of jail-time credit. The sentencing

entry in CR-559404 did not include any jail-time credit. Fitzgerald did not file a direct

appeal from his conviction and sentence in either case.     After the time to file a direct

appeal had expired in both cases, Fitzgerald filed motions in both cases asking the court

to give him jail-time credit in both cases under authority of State v. Fugate, 117 Ohio

St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, in which the syllabus states: “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.”          The

court denied the motions, stating that “defendant has already been given jail time credit at

the time of sentencing.”

       {¶2} We first note that Fitzgerald has been released from prison (he appeared for

oral argument), so any grant of additional jail-time credit would not serve to reduce the

amount of time spent in jail. Although Fitzgerald requests that we nonetheless rule on

his assigned error for other reasons, his appeal is rendered moot by virtue of his release.
State ex rel. Gordon v. Murphy, 112 Ohio St.3d 329, 2006-Ohio-6572, 859 N.E.2d 928, ¶

6.

      {¶3} Additionally, we have characterized a motion to “correct” a sentence as a

petition for postconviction relief.       See State v. Kelly, 8th Dist. No. 97673,

2012-Ohio-2930, ¶ 8.       See also State v. Richardson, 10th Dist. No. 12AP-640,

2013-Ohio-292, ¶ 7. As such, principles of res judicata apply to bar the assertion of any

claim relating to sentencing that was or could have been raised on direct appeal. Kelly at

¶ 18, citing State v. Castro, 8th Dist. No. 97451, 2012-Ohio-2206. Fitzgerald could

have, but did not, raise the legal issue of jail-time credit for concurrent sentences in a

direct appeal from his convictions. Principles of res judicata apply to bar the assertion

of that claim in postconviction proceedings.       See State v. McBride, 10th Dist. No.

10AP-1152, 2011-Ohio-3030, ¶ 8 (holding that claimed Fugate violation was a “legal

challenge” to jail-time credit that was barred by doctrine of res judicata). See also State

v. DeMarco, 8th Dist. No. 96605, 2011-Ohio-5187, ¶ 7; State v. Deal, 3d Dist. No.

5-08-15, 2008-Ohio-5408.

      {¶4} Judgment affirmed.

      It is ordered that appellee recover of appellant its costs herein taxed.

      The court finds there were reasonable grounds for this appeal.
       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MELODY J. STEWART, ADMINISTRATIVE JUDGE

TIM McCORMACK, J., CONCURS;

MARY J. BOYLE, J., CONCURS WITH
SEPARATE OPINION


MARY J. BOYLE, J., CONCURRING:

       {¶5} This appeal involves the application of jail-time credit — a statutory

requirement under R.C. 2967.191 that “has its roots in the Equal Protection Clauses of the

Ohio and United States Constitutions.”         State v. Fugate, 117 Ohio St.3d 261,

2008-Ohio-856, 883 N.E.2d 440, ¶ 7. Jail-time credit recognizes the liberties lost spent

behind bars, and more significantly, it recognizes that the Equal Protection Clause does

not tolerate disparate treatment of defendants based solely on their economic status. Id.



       {¶6} And while the majority correctly applies the governing law at the time that

Fitzgerald filed his motion seeking jail-time credit, I write separately to highlight recent

amendments to R.C. 2929.19, through the enactment of H.B. No. 487 and S.B. No. 337,

that impose certain duties on a trial court at the time of sentencing with respect to
jail-time credit. Specifically, under R.C. 2929.19(B)(2)(g)(i), a trial court must at the

time of sentencing,

       determine, notify the offender of, and include in the sentencing entry the
       number of days that the offender has been confined for any reason arising
       out of the offense for which the offender is being sentenced and by which
       the department of rehabilitation and correction must reduce the stated prison
       term under section 2967.191 of the Revised Code.

       {¶7} The statute further vests the trial court with “continuing jurisdiction to correct

any error not previously raised at sentencing in making a determination under division

(B)(2)(g)(i) * * *.” R.C. 2929.19(B)(2)(g)(iii). I applaud the legislature for recognizing

the civil liberties at stake and adopting legislation that further protects them.
