[Cite as State v. Colbert, 2017-Ohio-8559.]



                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                                :       APPEAL NO. C-160866
                                                      TRIAL NO. B-1407201
        Plaintiff-Appellee,                   :

        vs.                                   :           O P I N I O N.

AMARIYA COLBERT,                              :

        Defendant-Appellant.                  :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed as Modified

Date of Judgment Entry on Appeal: November 15, 2017



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Office of the Ohio Public Defender, and Timothy B. Hackett, Assistant State Public
Defender, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS



Per Curiam.

       {¶1}     Defendant-appellant Amariya Colbert appeals the Hamilton County
Common Pleas Court’s judgment overruling his “Motion for Recalculation of Jail
Time Credit.”     Because the common pleas court had no jurisdiction to entertain
Colbert’s motion, we affirm the court’s judgment as modified to dismiss the motion.
       {¶2}     In 2015, Colbert was convicted upon guilty pleas to aggravated robbery
and having weapons while under a disability.         The trial court imposed prison

sentences totaling seven years. And the court credited against those prison terms the
132 days between Colbert’s arrest on the indictment leading to his convictions and

the entry of the judgment of conviction. Colbert did not appeal his convictions.
       {¶3}     In 2016, Colbert filed with the common pleas court his “Motion for
Recalculation of Jail Time Credit.” He argued that R.C. 2967.191 required the trial

court to additionally credit him with the 63 days he spent in juvenile detention before
his arrest on his indictment. In this appeal, he advances a single assignment of error
challenging the common pleas court’s judgment overruling that motion.
       {¶4}     In 2012, the General Assembly amended R.C. 2967.191 and 2929.19 to

clarify the law concerning jail-time credit. R.C. 2967.191 tasks the department of
rehabilitation and correction with reducing a prisoner’s prison term or parole-
eligibility date “by the total number of days that the prisoner was confined for any

reason arising out of the offense for which the prisoner was convicted and sentenced,
including * * * confinement in a juvenile facility.” For purposes of the prison-term

reduction required by R.C. 2967.191, R.C. 2929.19(B)(2)(g)(i) imposes upon the trial
court the duty to “determine,” as of the date of the offender’s conviction, “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 to “notify the offender of, and
include in the sentencing entry” its jail-time-credit determination.
       {¶5}     Before the 2012 amendments, an offender could challenge the trial
court’s jail-time-credit determination on direct appeal, in a properly constituted


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                     OHIO FIRST DISTRICT COURT OF APPEALS



motion under Crim.R. 36 to “correct” a “clerical mistake[ ],” or in a petition under
R.C. 2953.21 et seq. for postconviction relief. See Heddleston v. Mack, 84 Ohio St.3d
213, 213, 702 N.E.2d 1198 (1988); State v. Weaver, 1st Dist. Hamilton No. C-050923,
2006-Ohio-5072, ¶ 12. Under the 2012 amendments, an error in determining jail-

time credit does not affect the conviction and may not be challenged in a new-trial
motion or a postconviction petition. R.C. 2929.19(B)(2)(g)(iii) and (iv). But an
erroneous jail-time-credit determination may still be challenged on direct appeal.

And under Crim.R. 36, a trial court may still, at any time, enter judgment nunc pro
tunc to the date of the original conviction, correcting a miscalculation, but not an

error of law, in determining jail-time credit. And a trial court may “correct” an error,

whether of law or fact, under the jurisdiction conferred, and pursuant to the
procedure provided, by R.C. 2929.19(B)(2)(g)(iii). That statute provides as follows:
       The sentencing court retains continuing jurisdiction to correct any

       error not previously raised at sentencing in making a determination
       under division (B)(2)(g)(i) of this section. The offender may, at any

       time after sentencing, file a motion in the sentencing court to correct
       any error made in making a determination under division (B)(2)(g)(i)
       of this section, and the court may in its discretion grant or deny that
       motion. If the court changes the number of days in its determination
       or redetermination, the court shall cause the entry granting that
       change to be delivered to the department of rehabilitation and
       correction without delay.

An entry overruling an R.C. 2929.19(B)(2)(g)(iii) motion to correct jail-time credit is
a final, appealable order. State v. Thompson, 147 Ohio St.3d 29, 2016-Ohio-2769, 59
N.E.3d 1264, ¶ 13.
       {¶6}   Colbert did not appeal his 2015 convictions and thus did not challenge
on direct appeal the trial court’s determination of his jail-time credit. And his jail-
time credit was not subject to correction under Crim.R. 36, when he sought in his


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                    OHIO FIRST DISTRICT COURT OF APPEALS



2016 motion correction of an alleged error of law in failing to credit him, as required
by R.C. 2967.191, with the days spent in juvenile detention before his arrest on his
indictment.
       {¶7}   Nor did R.C. 2929.19(B)(2)(g)(iii) confer upon the common pleas court
jurisdiction to correct the alleged error in Colbert’s jail-time credit, in the absence of
some demonstration that the error had not been raised during his sentencing hearing.
The statute grants jurisdiction to correct an error in determining jail-time credit only

when that error was “not previously raised at sentencing.” Thus, the common pleas
court’s jurisdiction to grant Colbert the relief sought in his motion depended upon
matters that transpired at his sentencing hearing. But the common pleas court did

not have before it a transcript of the proceedings at his sentencing hearing, because
Colbert had not appealed his convictions and did not request that a sentencing

transcript be filed with the common pleas court for its decision on his motion. See

State ex rel. Partee v. McMahon, 175 Ohio St. 243, 248, 193 N.E.2d 266 (1963); State
v. Hawkins, 1st Dist. Hamilton No. C-74425, 1975 WL 181869 (July 7, 1975) (holding
that an indigent offender is entitled to a transcript of the proceedings leading to his

conviction, at the state’s expense, if he has pending either a direct appeal or a
postconviction proceeding).     And the transcript of proceedings filed after he had

appealed the overruling of his motion is not properly before us, because we may not
add to the record, and then decide this appeal based on, matter that was not before the
common pleas court in ruling on the motion. See State v. Ishmail, 54 Ohio St.2d
402, 405-406, 377 N.E.2d 500 (1978), paragraph two of the syllabus (holding that
when a trial court denies a postconviction petition seeking to withdraw guilty pleas
without first considering a plea-hearing transcript, the appeals court cannot add that
transcript to the record before it and then decide the appeal on the basis of matter

disclosed by the transcript). Accord State v. Tekulve, 188 Ohio App.3d 792, 2010-
Ohio-3604, 936 N.E.2d 1030 (1st Dist.2010).




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                   OHIO FIRST DISTRICT COURT OF APPEALS



       {¶8}    The common pleas court cannot be said to have erred in declining to
afford Colbert the relief sought in his “Motion for Recalculation of Jail Time Credit,”
when he failed to invoke the jurisdiction under R.C. 2929.19(B)(2)(g)(iii) to correct
jail-time credit by requesting that a transcript of proceedings demonstrating that the

error had not been raised at sentencing be filed with the common pleas court for its
decision on his motion. Because the common pleas court had no jurisdiction to grant
that relief, the motion was subject to dismissal. Accordingly, upon the authority of

App.R. 12(A)(1)(a), we modify the judgment appealed from to reflect the dismissal of
the motion. And we affirm the judgment as modified.

                                                      Judgment affirmed as modified.

MOCK, P.J., CUNNINGHAM and MYERS, JJ.



Please note:

       The court has recorded its entry on the date of the release of this opinion.




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