[Cite as State v. Smith, 2017-Ohio-4123.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellee,            :
                                                       CASE NO. 2016-A-0059
        - vs -                                  :

STANLEY T. SMITH,                               :

                 Defendant-Appellant.           :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2014
CR 00207.

Judgment: Affirmed.


Nicholas A. Iarocci, Ashtabula County Prosecutor, Ashtabula County Courthouse, 25
West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).

Michelle M. French, Law Offices of Michelle M. French, LLC, 28 West Jefferson Street,
Jefferson, OH 44047 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     Appellant, Stanley T. Smith, appeals the judgment of the Ashtabula

County Court of Common pleas denying his pro se motion for jail-time credit.

Appellant’s appointed, appellate counsel has filed a brief and requested leave to

withdraw, pursuant to Anders v. California, 386 U.S. 738 (1967). Appellant was served

with the brief and subsequently filed a pro se appellate brief.   After conducting an
independent review of appellant’s case, we conclude the instant appeal is wholly

frivolous and affirm the trial court’s denial of appellant’s motion.

       {¶2}   On May 30, 2014, appellant was indicted for illegal assembly of chemicals

for the manufacture of drugs, a felony of the third degree (“the Ashtabula County case”).

Appellant pled not guilty. The bond set in the Painesville Municipal Court was continued

and appellant remained free on bond.

       {¶3}   On October 8, 2014, appellant withdrew his not guilty plea and pled guilty

to the indictment. Bond was continued pending preparation of a pre-sentence report.

The court noted appellant had not served any jail time on this charge.        The court

scheduled sentencing for December 11, 2014.

       {¶4}   On December 8, 2014, appellant was arrested in Lake County and

incarcerated in the Lake County Jail on a new case in which he was also charged with

illegal assembly of chemicals for the manufacture of drugs (“the Lake County case”).

Upon discovering this development, the Ashtabula County Court rescheduled

sentencing for January 27, 2015.

       {¶5}   On January 26, 2015, appellant was conveyed to the Ashtabula County

Court for sentencing. At the January 27, 2015 sentencing, appellant was sentenced to

two and one-half years in prison with no days of jail-time credit. He was then returned

to the Lake County Jail for disposition of the Lake County case.

       {¶6}   Appellant did not file a direct appeal in the Ashtabula County case.

Instead, five months after he was sentenced in that case, on June 25, 2015, he filed a

pro-se motion for jail-time credit. He conceded he was given 56 days of jail-time credit,

but argued he was entitled to an additional 78 days of jail-time credit.       Appellant




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subsequently withdrew this motion, stating he was not entitled to the jail-time credit he

requested.

       {¶7}   Thereafter, on August 15, 2016, appellant filed a second pro-se motion

for jail-time credit in the Ashtabula County case in which he made virtually the same

argument he made in his first motion. The only exhibit appellant attached to this motion

was a copy of a brief a Lake County assistant prosecutor filed in opposition to a motion

for jail-time credit that appellant apparently filed in the Lake County case.

       {¶8}   In his brief, the Lake County assistant prosecutor asked the trial court to

“deny Defendant’s Motion for Jail Time Credit * * *.” That prosecutor said: “On April 14,

2015, the Defendant was sentenced to [two years] in prison [in the Lake County Case],

with 50 days credit (12/8/14 – 1/26/15), consecutive to his prison sentence in [the

Ashtabula County case], in which case he was sentenced on 1/27/15 to [two and one-

half years] in prison with 0 days credit.”   The prosecutor said appellant “received the

correct amount of jail-time credit in [the Lake County case] and that it was for “[t]he

Department of Corrections [to] credit the Defendant with serving his Ashtabula County

prison sentence from 1/27/15 until at least 4/14/15 when he was sentenced by [the Lake

County] Court.” (The Lake County court denied appellant’s motion for jail-time credit.

Appellant appealed that ruling and that appeal is now pending in this court.)

       {¶9}   The Ashtabula County assistant prosecutor filed a brief in opposition to

appellant’s motion for jail-time credit. The prosecutor argued that appellant’s motion

should be denied because it was barred by res judicata and also because appellant had

already received credit for time served on the Ashtabula County case, suggesting that if

his motion was granted, he would receive duplicate jail-time credit for the period from




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January 27, 2015 (when he was sentenced in Ashtabula County) to April 14, 2015

(when he was sentenced in Lake County). The trial court denied appellant’s motion.

       {¶10} Appellant, pro se, appealed the trial court’s ruling. This court appointed

Michelle M. French as appellant’s appellate counsel.        She filed an appellate brief

pursuant to Anders, supra, in which she stated she had reviewed the record and

applicable law and could not find any error prejudicial to appellant’s rights. Pursuant to

Anders, counsel asked this court to independently review the record to determine

whether any possible error exists.

       {¶11} Counsel asserted the following as appellant’s sole potential assignment of

error: “Did the Trial Court err to the prejudice of the Appellant by failing to grant the

Appellant the appropriate amount of jail-time credit?”

       {¶12} In explaining why she believed this appeal is frivolous, appellate counsel

stated in her Anders brief:

       {¶13} Mr. Smith was sentenced to prison on January 27, 2015 in
             Ashtabula County. He was sentenced to a consecutive prison term
             in Lake County on April 14, 2015, with jail credit of 50 days. This
             period represents the time from December 8, 2014 until January
             27, 2015, a period of 50 days. Mr. Smith, due to the consecutive
             sentences ordered, was not given credit in the Lake County case
             for the time period after January 27, 2015, as he was already
             serving a prison sentence.

       {¶14} As a result, appellate counsel asked for permission to withdraw as

appellant’s attorney.   She also certified she sent a copy of her brief to appellant,

explaining an Anders brief and her reason for filing it, and she advised him that he may

file his own brief if he chooses.




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       {¶15} Pursuant to the Anders brief, this court gave appellant leave to file his own

brief and ordered Attorney French’s request to withdraw be held in abeyance pending

this court’s review pursuant to Anders.

       {¶16} Appellant subsequently filed a brief in which he asserted the following for

his sole assignment of error:

       {¶17} “The Trial Court erred to the prejudice of Appellant’s rights to Due Process

and Equal Protection of the Law guaranteed by the United States and Ohio

Constitutions by failing to grant Appellant credit for all time spent in the custody of the

Sheriff prior to delivering Appellant into the custody of the Ohio Department of

Rehabilitation and Corrections.”

       {¶18} Appellant concedes he was given 56 days of jail-time credit for the 50

days he was in the Lake County Jail prior to his sentencing in the Ashtabula County

case (December 8, 2014 to January 26, 2015) and for the six days he remained in the

Lake County Jail between his sentence in the Lake County case and his conveyance to

prison (April 14, 2015 to April 21, 2015). However, he argues he was also entitled to

credit for the 78 days he was held in the Lake County Jail following his Ashtabula

County sentence until his Lake County sentence (January 27, 2015 to April 14, 2015).

       {¶19} As a preliminary matter, the state’s res judicata argument lacks merit.

R.C. 2929.19(B)(2)(g)(iii) provides, in pertinent part:

       {¶20} [A] sentencing court retains continuing jurisdiction to correct any
             error not previously raised at sentencing in making a determination
             [of the appropriate 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 [such] determination[.]
             (Emphasis added.)




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       {¶21} Several courts have held that since R.C. 2929.19(B)(2)(g)(iii) provides that

a court has continuing jurisdiction to correct any jail-time credit error not previously

raised at sentencing, this statute abates the application of res judicata as it relates to

issues that could have been raised at sentencing but were not. State v. Lynch, 10th

Dist. Franklin Nos. 15AP-123, etc., 2015-Ohio-3366, ¶9-11; State v. Quarterman, 8th

Dist. Cuyahoga No. 101064, 2014-Ohio-5796, ¶8; State v. Copas, 4th Dist. Adams No.

14CA996, 2015-Ohio-5362, ¶11-12; State v. Guiterres, 11th Dist. Trumbull No. 2015-T-

0116, 2016-Ohio-5572, ¶15 (“This provision 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.”)

       {¶22} Because appellant’s jail-time credit issue was not considered at

sentencing, this appeal is not barred by res judicata.

       {¶23} Turning now to the substance of this appeal, R.C. 2967.191, regarding jail-

time credit, provides:

       {¶24} The department of rehabilitation and correction shall reduce the
             stated prison term of a prisoner * * * 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 while awaiting transportation to the
             place where the prisoner is to serve the prisoner's prison term * *
             *[.] (Emphasis added.)

       {¶25} Moreover, R.C. 2949.12, regarding conveying a convicted felon to prison,

provides:

       {¶26} [A] convicted felon who is sentenced to serve a term of
             imprisonment in a state correctional institution shall be conveyed,



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              within five days after sentencing, * * * by the sheriff of the county in
              which the conviction was had to the facility that is designated by the
              department of rehabilitation and correction for the reception of
              convicted felons. The sheriff shall deliver the convicted felon into
              the custody of the managing officer of the reception facility and, at
              that time, * * * shall present the managing officer with a copy of the
              convicted felon’s sentence that clearly describes each offense for
              which the felon was sentenced * * *, designates the sentence
              imposed for each offense for which the felon was sentenced * * *,
              and * * * specifies the total number of days, if any, that the felon
              was confined for any reason prior to conviction and sentence.
              (Emphasis added.)

       {¶27} Pursuant to the foregoing statutory authority, the trial court has the duty to

determine the number of days the prisoner was confined before he was sentenced to

prison and to include that amount in the sentencing entry. When the sheriff delivers the

prisoner to the prison, the sheriff has the duty to present the managing officer with a

copy of the prisoner’s sentence that specifies the total number of days he was confined

for any reason prior to his sentence. However, it is the duty of the department of

rehabilitation and correction to reduce the prisoner’s prison term by, inter alia, the

number of days he was confined while awaiting transportation to the place where he is

to serve his prison term.

       {¶28} Here, the Ashtabula County Court sentenced appellant to prison.

However, because he had a case pending in Lake County, he was returned to that

county for trial, rather than being conveyed to prison. Only after he was sentenced in

the Lake County case was he transported to prison.            Pursuant to the mandatory

language of R.C. 2967.191, the department of corrections is required to reduce a

convicted felon’s prison term by the amount of time he awaited transportation to prison.

In the absence of evidence to the contrary, we presume the department of corrections

met its statutory obligation to make this reduction.



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       {¶29} Appellant failed to file in the trial court any evidence supporting his motion

for jail-time credit, such as records from the Lake County Court, the Lake County

Sheriff’s Office, or the department of corrections. Thus, the trial court had no evidence

before it concerning the exact amount of jail-time credit to which appellant was entitled

or whether he had already been credited with that time by the department of

corrections. “An appellate court in determining the existence of error is limited to a

review of the record.” State v. Dudas, 11th Dist. Lake No. 2007-L-169, 2008-Ohio-3261,

¶16. On appeal, it is the appellant's responsibility to support his argument by evidence

in the record that supports his assigned errors. Id. Because appellant failed to do so,

his argument lacks merit.

       {¶30} Significantly, appellant argues in his appellate brief that on April 21, 2015,

when he arrived at prison, he was given materials showing he was only given 56 days

of jail-time credit. Yet, he failed to attach a copy of these documents to his motion for

jail-time credit.

       {¶31} Further, the exhibits attached to appellant’s appellate brief (which include

another brief filed by the Lake County assistant prosecutor asking that court to deny

appellant’s motion for jail-time credit) are not in the trial court’s record. Thus, the trial

court did not have an opportunity to consider them when ruling on appellant’s motion.

Further, because they are not part of the trial court’s record, we cannot consider them

and they are, sua sponte, stricken from the record.

       {¶32} After a thorough and independent review of the record, we hold the trial

court did not err in denying appellant’s motion for jail-time credit. Thus, there are no

arguable legal issues on the merits of this appeal. Appellant’s appeal is without merit




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and is wholly frivolous. Further, because there are no arguable issues in this appeal,

the request to withdraw filed by appellate counsel is well taken and is hereby granted.

      {¶33} For the reasons stated in this opinion, the assignment of error is overruled.

It is the order and judgment of this court that the judgment of the Ashtabula County

Court of Common Pleas is affirmed.



TIMOTHY P. CANNON, J., concurs,

THOMAS R. WRIGHT, J., concurs in judgment only.




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