[Cite as State v. Gibson, 2017-Ohio-8329.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                     :

                 Plaintiff-Appellee,               :
                                                                      No. 17AP-200
v.                                                 :               (C.P.C. No. 15CR-5417)

Daniel R. Gibson,                                  :           (ACCELERATED CALENDAR)

                 Defendant-Appellant.              :



                                             D E C I S I O N

                                    Rendered on October 26, 2017


                 Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for
                 appellee.

                 Timothy Young, Ohio Public Defender, and Terrence K. Scott,
                 for appellant.

                             ON MOTION TO CERTIFY A CONFLICT

BRUNNER, J.
I. INTRODUCTION
        {¶ 1} On August 17, 2017, this Court issued a decision reversing the Franklin
County Court of Common Pleas' judgment that denied defendant-appellant's, Daniel R.
Gibson, motion for recalculation of jail-time credit. State v. Gibson, 10th Dist. No. 17AP-
200, 2017-Ohio-7254. The common pleas court found in denying Gibson's motion that he
had "not alleged" that the jail-time credit error had not been raised at sentencing so as to
avail himself of a statutory postconviction motion authorized by R.C. 2929.19(B)(2)(g)(iii).
(Feb. 17, 2017 Jgmt. Entry at 2.) Because Gibson did state facts in his motion to recalculate
his jail-time credit that amounted to an assertion that he had not previously raised his
claim, we concluded by a 2 to 1 majority that the trial court had erred in deciding that R.C.
2929.19(B)(2)(g)(iii) could not and did not apply to Gibson's motion. Gibson at ¶ 11-12.
For that reason, we reversed. The plaintiff-appellee, State of Ohio, now asks that we


2017-Ohio-8329.docx
No. 17AP-200                                                                             2


consider the matter en banc based on an alleged conflict with State v. Smith, 10th Dist. No.
15AP-209, 2015-Ohio-4465, and certify the matter to the Supreme Court of Ohio based on
alleged conflicts with State v. Johnson, 4th Dist. No. 16CA26, 2017-Ohio-4213, and State v.
Guiterres, 11th Dist. No. 2015-T-0116, 2016-Ohio-5572.
       {¶ 2} We address in a separate decision whether en banc consideration is
warranted or required, but we also discuss Smith in this decision because Smith is the case
on which both Johnson and Guiterres rely for their holdings alleged to be in conflict with
our decision in Gibson.
II. DISCUSSION
       {¶ 3} The Supreme Court has explained:
              [A]t least three conditions must be met before and during the
              certification of a case to this court pursuant to Section 3(B)(4),
              Article IV of the Ohio Constitution. First, the certifying court
              must find that its judgment is in conflict with the judgment of
              a court of appeals of another district and the asserted conflict
              must be "upon the same question." Second, the alleged conflict
              must be on a rule of law -- not facts. Third, the journal entry or
              opinion of the certifying court must clearly set forth that rule of
              law which the certifying court contends is in conflict with the
              judgment on the same question by other district courts of
              appeals.

Whitelock v. Gilbane Bldg. Co., 66 Ohio St. 3d 594, 596 (1993).
       {¶ 4} In Gibson, we reviewed a decision of the Franklin County Common Pleas
Court by which the trial court found that Gibson had not alleged that the problem he
perceived with his jail-time credit had not been raised at sentencing (which he did allege in
his application) and that he was barred from the trial court's consideration of his motion by
the doctrine of res judicata. The State argued, and the dissent agreed, that Gibson was
required to ab initio submit evidence with his motion for jail-time credit proving that his
motion was not barred by res judicata. (Aug. 28, 2017 Mot. for En Banc & to Certify at 5-
11.) Specifically, we said:
              [T]he State argues that R.C. 2929.19(B)(2)(g)(iii) requires
              Gibson not only to raise the error, but to prove it by supplying
              a transcript with his motion.[fn. 1] We find no basis for this in
              the language of the statute. The State would have us interpret
              the statute so as to create a presumption that such error had
              been raised at sentencing unless a defendant can produce a
No. 17AP-200                                                                                             3


                transcript that proves otherwise, or else res judicata bars relief.
                This is not what the statute requires.

                [fn. 1] It is conceivable that the State could have provided a
                transcript or portion thereof with its memorandum opposing
                Gibson's motion for jail-time credit. It did not do so and instead
                argues that Gibson should have.

Gibson at ¶ 10. Following the suggestion raised in the dissenting opinion in Gibson, the
State now argues that Gibson conflicts with Guiterres and Johnson in that both adhere to
the principle (originally set forth in Smith) that the defendant-movant has the burden of
establishing that the alleged jail-time credit error was not previously raised at sentencing.
Johnson at ¶ 20, citing Smith at ¶ 10; Guiterres at ¶ 15, citing Smith at ¶ 10. That principle
of law from Smith is correct. Smith at ¶ 10. But to apply it as the State, the dissent in
Gibson, and now the dissent herein suggests—to require the filing of a transcript ab initio
with the motion pursuant to R.C. 2929.19(B)(2)(g)(iii)—is too simplistic an application of
Smith and is inconsistent with both the statute and case law. Smith does not even address
that a movant must conclusively rebut res judicata before it is affirmatively raised by the
State, only that entitlement to relief must be established.1
        {¶ 5} In criminal cases, res judicata generally bars a defendant from litigating
claims in a proceeding subsequent to the direct appeal "if he or she raised or could have
raised the issue at the trial that resulted in that judgment of conviction or on an appeal
from that judgment." (Emphasis sic.) State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-
3707, ¶ 92. Res judicata is not specifically addressed in the Ohio Rules of Criminal
Procedure. Thus, to properly assert a claim of res judicata in criminal cases, Crim.R. 57(B)
instructs the parties and the courts to "look to the rules of civil procedure and to the
applicable law."
        {¶ 6} Rule 8(C) of the Ohio Rules of Civil Procedure classifies "res judicata" as an
"affirmative defense." Ohio criminal case law is consistent with this designation. State v.
Lelux, 10th Dist. No. 97APA10-1308, 1998 WL 303884, 1998 Ohio App. LEXIS 2547, *5
(June 11, 1998); see also, e.g., State v. Williams, 8th Dist. No. 103144, 2016-Ohio-2629, ¶ 9.
Moreover, in Ohio civil case law, the Supreme Court has held that "[i]t is not proper for a

1 Consider the situation where the State agrees with the movant that jail-time credit should be corrected and

does not raise the affirmative defense of res judicata. To require the filing of a transcript even when the
affirmative defense of res judicata is not raised could not be required under any interpretation of the law.
No. 17AP-200                                                                            4


court to grant a motion to dismiss based on res judicata, because res judicata is an
affirmative defense, and because resolution of a res judicata defense typically requires
resort to materials outside the pleadings." (Citations omitted.) State ex rel. West v.
McDonnell, 139 Ohio St.3d 115, 2014-Ohio-1562, ¶ 16. The party asserting res judicata must
demonstrate that this affirmative defense is apropos, and this is generally established by
reference to materials outside the pleadings.
               It is well-settled that res judicata is an affirmative defense,
               which must be raised in a defendant's answer or be deemed
               waived. Civ.R. 8(C); see, also, State ex rel. Freeman v. Morris
               (1991), 62 Ohio St. 3d 107, 109, 579 N.E.2d 702; Star Bank,
               N.A., Cincinnati v. Management Technologies, Inc. (1990), 69
               Ohio App. 3d 147, 149, 590 N.E.2d 298. It is equally well settled
               that the defense of res judicata, may not be raised by a motion
               to dismiss pursuant Civ.R. 12(B). Freeman, supra.

(Emphasis sic.) Guess v. Wilkinson, 123 Ohio App.3d 430, 434 (10th Dist.1997).
       {¶ 7} While res judicata often applies to motions to correct jail-time credit, Smith
at ¶ 7, the statutory exception does not assume that it does:
               The sentencing court retains continuing jurisdiction to correct
               any error not previously raised at sentencing in making a
               determination [regarding jail-time credit]. The offender may,
               at any time after sentencing, file a motion in the sentencing
               court to correct any error made in making a determination
               [regarding jail-time credit], and the court may in its discretion
               grant or deny that motion.

R.C. 2929.19(B)(2)(g)(iii). Smith, Guiterres, and Johnson all stand for the proposition that
it is the defendant-movant's burden to demonstrate an entitlement to the statutory
application of R.C. 2929.19(B)(2)(g)(iii). Johnson at ¶ 20, citing Smith at ¶ 10; Guiterres
at ¶ 15, citing Smith at ¶ 10.
       {¶ 8}   R.C. 2929.19(B)(2)(g)(iii)'s requirement of "any error not previously raised
at sentencing" does not establish any presumption that res judicata otherwise applies and
that a movant must prove with evidence such as a transcript at the outset that it does not.
The statute does not by any reading change the State's burden to demonstrate that the
affirmative defense of res judicata bars relief. If and when that burden is satisfied, it
becomes the movant's burden, as we stated in Smith, "to demonstrate that R.C.
2929.19(B)(2)(g)(iii) applies to preclude the application of res judicata." Smith at ¶ 10.
No. 17AP-200                                                                               5


Simply put, the State bears the burden to demonstrate that res judicata applies before a
movant has to prove that it does not apply. In Gibson's case, the State raised res judicata
and was required to affirmatively show that Gibson "raised or could have raised the issue"
of jail-time credit at sentencing. (Emphasis sic.) Jackson at ¶ 92. This likely would require
a transcript—not supplied by Gibson according to judicial fiat as the State would suggest,
but rather, supplied by the State to prove its affirmative defense raised. Gibson was not
required to prove a negative, since an "affirmative" defense requires action by the one
asserting it. Id.
          {¶ 9} Our holding in Gibson is consistent with our holding in Smith, which only
considered "the [movant]'s burden to demonstrate" an entitlement to the statutory
exception after already concluding that absent such an exception, res judicata would apply.
Compare Smith at ¶ 7 with id. at ¶ 10. Though in Smith we also discussed the "lack of
evidence to support [Smith's] motion," we did so in the context of evaluating the
substantive merits of Smith's request for additional jail-time credit. Smith at ¶ 14.
          {¶ 10} In Gibson, the trial court dismissed the motion of Gibson's alleged failure to
even make the allegation in his motion that the issue of jail-time credit was not previously
raised.2 The trial court also found Gibson's motion to be barred by the doctrine of res
judicata—with no reference to a transcript. The fundamental disagreement of the panel in
our review of Gibson seems to be whether there is a presumption of res judicata in applying
R.C. 2929.19(B)(2)(g)(iii) and/or who must supply the transcript to support his position—
the movant or the responding party.
          {¶ 11} At no point in our decision in Smith did we hold that a movant must submit
evidence with his motion in anticipation that the nonmoving party may assert and properly
support an affirmative defense of res judicata.           Id. in passim.     And while R.C.
2929.19(B)(2)(g)(iii) seems to contemplate the application of res judicata, it does not by its
terms require the movant, ab initio, to submit evidence to show that res judicata does not
apply. Gibson stated in his motion that he was filing pursuant to R.C. 2929.19(B)(2)(g)(iii).
Crim.R. 47 requires that a motion "shall state with particularity the grounds upon which it
is made[,] * * * set forth the relief or order sought[, and include] a memorandum containing
citations of authority."


2   The dissent herein does not address this problem.
No. 17AP-200                                                                               6


       {¶ 12} Like the Smith case on which they rely, neither appellate court in Guiterres
nor Johnson discusses the principal of law that the party asserting the affirmative defense
of res judicata carries the burden to establish it, usually requiring materials such as a
transcript that are not part of the original motion documents or pleadings. And neither
Guiterres nor Johnson adopts the presumption (sought by the State in Gibson) that jail-
time credit errors can be presumed to have been raised at sentencing unless a defendant
can produce a transcript that proves otherwise. Johnson at ¶ 20, citing Smith at ¶ 10;
Guiterres at ¶ 15, citing Smith at ¶ 10. See also Gibson at ¶ 10. Guiterres and Johnson are
consistent with Smith and they are not in conflict with Gibson. In Gibson, we simply
recognized that before a movant has the burden of showing a statutory exception from res
judicata, i.e., that his motion for recalculation of jail-time credit has merit, the party
asserting res judicata must demonstrate that the defense applies. Id.
       {¶ 13} We note also that in Guiterres and Johnson both criminal defendants had
previously filed motions for jail-time credit and not appealed the denial of such motions.
Johnson at ¶ 8-11; Guiterres at ¶ 3-7. Res judicata applied for reasons independent of what
the trial court held in Gibson, because they had previously been filed, litigated, denied on
the merits, and not appealed in the first instance. Johnson at ¶ 8-11; Guiterres at ¶ 3-7; see
Jackson at ¶ 92. The issue and application of res judicata in Guiterres and Johnson is not
synonymous with its issue and application in Gibson.
III. CONCLUSION
       {¶ 14} Guiterres and Johnson do not conflict with Gibson. The movant seeking jail-
time credit has the burden to show an exemption from res judicata under R.C.
2929.19(B)(2)(g)(iii) if res judicata has first been raised and applies. Generally, this
requires reference to documents beyond the motion, such as a transcript of the previous
sentencing hearing. Gibson rests on the proposition that if the State asserts the affirmative
defense of res judicata, it first must demonstrate that the affirmative defense of res judicata
applies before a movant is required to submit evidence or demonstrate entitlement to jail-
time credit recalculation pursuant to R.C. 2929.19(B)(2)(g)(iii). In Gibson, we declined to
create a presumption that res judicata applies under R.C. 2929.19(B)(2)(g)(iii), and neither
Guiterres nor Johnson is in conflict with Gibson on this proposition of law. Further,
Guiterres and Johnson involve analyses of res judicata concerning previously filed motions
for jail-time credit correction that were not appealed. As such, they are separate from and
No. 17AP-200                                                                              7


independent of the legal questions at issue in Gibson concerning presumption of res
judicata and when a transcript must be submitted as evidence in a proceeding pursuant to
R.C. 2929.19(B)(2)(g)(iii), and we declined to require submission of a transcript ab initio
with a motion filed pursuant to this statute. Accordingly, the motion to certify a conflict is
hereby denied.
                                                         Motion to certify a conflict denied.
                                    TYACK, P.J., concurs.
                                    SADLER, J., dissents.
SADLER, J., dissenting.
       {¶ 15} Because I believe that the majority decision in State v. Gibson, 10th Dist. No.
17AP-200, 2017-Ohio-7254, is in conflict with the decision of the Fourth District Court of
Appeals in State v. Johnson, 4th Dist. No. 16CA26, 2017-Ohio-4213, and the Eleventh
District Court of Appeals in State v. Guiterres, 11th Dist. No. 2015-T-0116, 2016-Ohio-5572,
I would grant the state's motion to certify a conflict. Because the majority does not, I
respectfully dissent from the majority decision.
       {¶ 16} Pursuant to App.R. 25, the state has moved this court to certify the following
question to the Supreme Court of Ohio:
              Does R.C. 2929.19(B)(2)(g)(iii) require a defendant to prove
              with a transcript of the sentencing hearing or other evidence
              that the alleged jail-time credit issue was not "previously raised
              at sentencing," or is a defendant's mere assertion that he or she
              did not learn of the alleged jail-time credit error until after
              sentencing sufficient to overcome res judicata and grant a trial
              court jurisdiction under R.C. 2929.19(B)(2)(g)(iii)?

(Application for En Banc Consideration and Mot. to Certify Conflict at 17.)
       {¶ 17} For the reasons expressed in my dissent in Gibson and for the additional
reasons set forth herein, I find that the majority decision in Gibson conflicts with Johnson
and Guiterres in regard to the question on which the state now seeks certification. I decline
to address the conflict between Gibson and Smith in this dissent because that particular
conflict will be the subject of a separate decision.
   A. The Fourth District in State v. Johnson
       {¶ 18} In Johnson, the trial court had determined that res judicata barred
defendant-appellant's motion for jail-time credit. Defendant-appellant appealed that
No. 17AP-200                                                                               8


decision to the Fourth District Court of Appeals. The Fourth District Court of Appeals ruled
as follows:
              Under R.C. 2929.19(B)(2)(g)(iii), a trial court has continuing
              jurisdiction to review any error (mathematical or legal) not
              previously raised at sentencing. State v. Copas, 2015-Ohio-
              5362, 49 N.E.3d 755, ¶ 12. However, a defendant still has the
              burden of establishing that the alleged error was not
              previously raised at sentencing. State v. Smith, 10th Dist.
              Franklin Nos. 15AP-209, 15AP-214, 2015-Ohio-4465, ¶ 10. The
              best way to determine whether an alleged error was not
              previously raised at sentencing is to review the transcript from
              the sentencing hearing.

              Here, Johnson failed to attach any evidence establishing that
              his claim was not considered by the trial court at his June
              2007 sentencing hearing. Thus, we cannot conclude that
              Johnson's claim was "not previously raised at sentencing" such
              that the trial court had authority to correct the alleged error.
              R.C. 2929.19(B)(2)(g)(iii). Accord State v. Thompson, 147 Ohio
              St.3d 2959, 2016-Ohio-2769, N.E.3d 1266, ¶ 12 (sentencing
              court has authority under R.C. 2929.19(B)(2)(g)(iii) to correct
              any error in determining jail-time credit that was not
              previously raised at sentencing). Therefore, we find that the
              trial court lacked jurisdiction to rule on the merits of Johnson's
              motion.

(Emphasis added.) Id. at ¶ 20-21.
       {¶ 19} In Johnson, the Fourth District determined that the moving party's failure to
"attach any evidence establishing that his claim was not considered by the trial court at
* * * sentencing" deprived the trial court of jurisdiction of the motion. (Emphasis added.)
Id. at ¶ 21. Thus, Johnson stands for the proposition that for purposes of establishing the
trial court's continuing jurisdiction of jail-time credit, R.C. 2929.19(B)(2)(g)(iii) requires
the movant to produce evidence with the motion establishing that the alleged error in jail-
time credit was not "previously raised at sentencing." As such, the holding of the Fourth
District is in direct conflict with the holding of the majority in Gibson.
       {¶ 20} The conflict with the majority decision in Gibson is further evidenced by the
Johnson court's rejection of the trial court's application of res judicata. The Fourth District
modified the trial court judgment as follows:
              Because Johnson failed to establish that the alleged error was
              not previously raised at sentencing, the trial court did not have
No. 17AP-200                                                                              9


               jurisdiction to rule on the merits of the motion; as a result, the
               trial court should have dismissed Johnson's motion.
               Therefore, we modify the judgment to reflect that the motion
               should have been dismissed for lack of jurisdiction and affirm
               the judgment of the trial court as modified.

Id. at ¶ 22.
       {¶ 21} The Johnson court's modification of the trial court's judgment is a clear
rejection of the majority's contention that the state, in order to assert the affirmative
defense of res judicata, has the initial burden to produce evidence that the jail-time credit
issue was raised at sentencing. The Johnson court makes clear that in order for the moving
party to establish the trial court's continuing jurisdiction, the moving party must produce
evidence that the alleged error in jail-time credit was "not previously raised at sentencing."
Id. Under R.C. 2929.19(B)(2)(g)(iii), the threshold issue is trial court jurisdiction, not res
judicata.
   B. Eleventh District Court of Appeals in State v. Guiterres
       {¶ 22} In Guiterres, the Eleventh District Court of Appeals, in affirming the trial
court's denial of defendant-appellant's motion for jail-time credit, reached the following
conclusion regarding the movant's burden of production:
               [R.C. 2929.19(B)(2)(g)(iii)] allows a defendant to raise an issue
               regarding his jail-time credit in a post-conviction motion, but
               only when the issue was not considered during the sentencing
               hearing. If an issue was raised and considered at the time the
               trial court rendered its original credit ruling, it cannot be
               asserted again in a motion for additional credit. State v. Smith,
               10th Dist. Franklin Nos. 15AP-209 and 15AP-214, 2015-Ohio-
               4465, ¶9. Moreover, in moving for an additional credit, the
               defendant has the burden of demonstrating that their
               argument was not previously considered at sentencing. Id. at
               ¶10.

               The record before this court does not have a transcript of the
               sentencing hearing. As a result, appellant cannot show
               whether the issue of his incarceration in the county jail was
               raised and considered at that time, thereby precluding its
               consideration in a postconviction motion. On this basis alone,
               the substance of appellant's argument cannot be addressed,
               and his sole assignment is without merit.

(Emphasis added.) Id. at ¶ 15-16.
No. 17AP-200                                                                              10


       {¶ 23} Pursuant to Guiterres, the initial burden of producing evidence that the
alleged error in jail-time credit was not raised at sentencing is placed squarely on the
movant. If the Guiterres court believed that the state had the initial burden to produce
evidence that the alleged error in jail-time credit was previously raised at sentencing, the
court would not have affirmed the denial of the motion on the basis that "[t]he record before
this court does not have a transcript of the sentencing hearing." Id. at ¶ 16. If the burden
of production was on the state, the absence of such evidence would not justify denial of the
motion for jail-time credit. Accordingly, I find that the rule of law applied by the Fourth
District in Guiterres conflicts with the rule of law adopted by the majority in Gibson.
       {¶ 24} In denying the motion, the majority attempts to factually distinguish
Guiterres and Johnson from Gibson on the basis that both Guiterres and Johnson "had
previously filed motions for jail-time credit and not appealed the denial of such motions."
(Majority at ¶ 13.) However, my reading of Johnson and Guiterres reveals that this
distinction made no difference in either case. Under the rule of law expressed in Johnson
and Guiterres, a motion for additional jail-time credit fails when the moving party fails to
produce evidence establishing the trial court's continuing jurisdiction. Johnson at ¶ 20-21;
Guiterres at ¶ 16.    Under R.C. 2929.19(B)(2)(g)(iii), the trial court has continuing
jurisdiction of a motion for jail-time credit only when the alleged error in jail-time credit
was not previously raised at sentencing. Johnson at ¶ 20-21; Guiterres at ¶ 16. The same
rule of law applies to every motion for jail-time credit filed pursuant to R.C.
2929.19(B)(2)(g)(iii), whether it is an initial motion or a successive motion. The fact that
res judicata was asserted by the court in Guiterres as an alternative basis for denial of the
successive motion for jail-time credit is irrelevant to the issue on which the state seeks
certification.
       {¶ 25} The issue before this court is whether the rule of law adopted by the majority
in Gibson conflicts with the rule of law adopted by the courts of appeal in Johnson and
Guiterres. In this instance, the rule of law adopted by the majority in Gibson is that the
state, not the movant, bears the burden of producing evidence that the alleged error in jail-
time credit was not previously raised at sentencing. Under the rule of law adopted in
Johnson and Guiterres, the movant bears the burden of producing evidence that the alleged
error in jail-time credit was not previously raised at sentencing. Thus, the rule of law
No. 17AP-200                                                                            11


adopted by the majority decision in Gibson clearly conflicts with rule of law in Johnson and
Guiterres.
       {¶ 26} For the foregoing reasons, I would grant the state's motion to certify a
conflict.
                                  _______________
