[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Thompson, Slip Opinion No. 2016-Ohio-2769.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2016-OHIO-2769
           THE STATE OF OHIO, APPELLEE, v. THOMPSON, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as State v. Thompson, Slip Opinion No. 2016-Ohio-2769.]
Criminal law—Sentencing—Trial court’s determination of motion for jail-time
        credit under R.C. 2929.19(B)(2)(g)(iii) constitutes a special proceeding and
        affects a substantial right—Denial of a motion for jail-time credit under
        R.C. 2929.19(B)(2)(g)(iii) is a final, appealable order.
   (No. 2014-1230—Submitted September 15, 2015—Decided May 3, 2016.)
  APPEAL from the Court of Appeals for Madison County, No. CA2014-04-010.
                               _______________________
        PFEIFER, J.
                                       BACKGROUND
        {¶ 1} Appellant, Lowell W. Thompson, pled guilty to various offenses,
including gross sexual imposition and three counts of rape, and was sentenced
accordingly. The sentence was memorialized in a January 11, 2011 entry that
recognized 184 days of jail-time credit.
                             SUPREME COURT OF OHIO




       {¶ 2} Three years later, in February 2014, Thompson moved for additional
jail-time credit of 87 days for the time he had been held prior to indictment. The
trial court denied his motion. Thompson filed a pro se appeal, arguing that the trial
court erred when it denied his motion for jail-time credit. The court of appeals
dismissed the appeal, holding that the entry appealed from was not a final,
appealable order.
       {¶ 3} Thompson appealed to this court, asserting that “[a]n order denying a
motion to correct jail-time credit filed under R.C. 2929.19(B)(2)(g)(iii) is an order
that affects a substantial right, and is therefore a final, appealable order.” We
accepted Thompson’s appeal. 140 Ohio St.3d 1506, 2014-Ohio-5098, 19 N.E.3d
923.
                                     ANALYSIS
                    Jail-time credit and R.C. 2929.19(B)(2)(g)
       {¶ 4} Pursuant to R.C. 2929.19(B)(2)(g)(i), a judge is required to determine
“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,” whereupon the
department of rehabilitation and correction will reduce the sentence by that number
of days under R.C. 2967.191.
       {¶ 5} R.C. 2929.19(B)(2)(g)(iii) states that 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.”            R.C.
2929.19(B)(2)(g)(iii) allows an offender to “at any time after sentencing, file a
motion in the sentencing court to correct any error made in making a determination
under division of (B)(2)(g)(i) of this section.”
       {¶ 6} As noted above, Thompson claims that the sentencing judge erred in
making a determination under R.C. 2929.19(B)(2)(g)(i) and his appeal was denied
solely because it was deemed not to be from a final, appealable order. Accordingly,
we look next at what could constitute a final, appealable order in this case.




                                          2
                                January Term, 2016




                 Final, appealable order pursuant to R.C. 2505.02
       {¶ 7} The only statutory provision that defines final orders and that could
apply here is R.C. 2505.02(B), which states:


               An order is a final order that may be reviewed, affirmed,
       modified, or reversed, with or without retrial, when it is one of the
       following:
               ***
               (2) An order that affects a substantial right made in a special
       proceeding * * *.


       {¶ 8} For purposes of this case, a “substantial right” is one that “a statute
* * * entitles a person to enforce or protect” and a “special proceeding” is defined
as “an action or proceeding that is specially created by statute and that prior to 1853
was not denoted as an action at law or a suit in equity.” R.C. 2505.02(A)(1) and
(2).
                         Applying R.C. 2505.02 to this case
       {¶ 9} The parties agree that an order determining whether an offender
receives jail-time credit affects a substantial right. We agree as well, because
receiving properly determined jail-time credit implicates an offender’s liberty
interest in being free from unauthorized incarceration and the right to jail-time
credit is protected by at least three statutory provisions. See R.C. 2949.08(B),
2967.191, and 2929.19.
       {¶ 10} Next, we must determine whether the order denying Thompson’s
motion for jail-time credit was made in a special proceeding. The parties agree that
it was. In its brief to us, the state acknowledged, “Prior to the creation of R.C.
2929.19(B)(2)(g)(iii) [in 2012, Am.Sub.S.B. No. 337], there was not a way to
correct jail-time credit after the time for an appeal had run on a final sentencing




                                          3
                              SUPREME COURT OF OHIO




entry.” In his brief, Thompson stated, “When the General Assembly amended R.C.
2929.19(B)(2)(g), it created a special proceeding to address the difficulty people
* * * have when trying to correct their jail-time credit.”
       {¶ 11} Prior to the enactment of R.C. 2929.19(B)(2)(g)(iii), an offender was
able to seek correction of an error made in determining jail-time credit only on
direct appeal. See State ex rel. Rankin v. Ohio Adult Parole Auth., 98 Ohio St.3d
476, 2003-Ohio-2061, 786 N.E.2d 1286, ¶ 10. Motions to correct errors made in
determining jail-time credit that were filed outside the time allowed for appeal were
barred by the doctrine of res judicata. See, e.g., State v. Spillan, 10th Dist. Franklin
Nos. 06AP-50, 06AP-51, 06AP-52, and 06AP-750, 2006-Ohio-4788, ¶ 12; State v.
Williams, 3d Dist. Allen No. 1-03-02, 2003-Ohio-2576, ¶ 9-12.
       {¶ 12} Pursuant to R.C. 2929.19(B)(2)(g)(iii), an offender can file a motion
to correct an error in determining jail-time credit “at any time after sentencing” and
the sentencing court has authority to correct any error in determining jail-time credit
that was “not previously raised at sentencing.” Given that this statute was enacted
in 2012 and that it created a right that was not otherwise available to an offender
who lacked the right to appeal, we conclude that the trial court’s determination of
a motion filed under R.C. 2929.19(B)(2)(g)(iii) constitutes a special proceeding.
                                    CONCLUSION
       {¶ 13} A trial court’s determination of a motion for jail-time credit pursuant
to R.C. 2929.19(B)(2)(g)(iii) constitutes a special proceeding and affects a
substantial right. Accordingly, we hold that the denial of a motion for jail-time
credit pursuant to R.C. 2929.19(B)(2)(g)(iii) is a final, appealable order. We
therefore reverse the judgment of the court of appeals and remand the cause to that
court to consider Thompson’s appeal on the merits.
                                                                   Judgment reversed
                                                                 and cause remanded.




                                           4
                                January Term, 2016




          O’CONNOR, C.J., and LANZINGER, KENNEDY, FRENCH, and O’NEILL, JJ.,
concur.
          O’DONNELL, J., dissents.
                                _________________
          Stephen J. Pronai, Madison County Prosecuting Attorney, and Rachel M.
Price, Assistant Prosecuting Attorney, for appellee.
          Timothy Young, Ohio Public Defender, and Stephen A. Goldmeier,
Assistant Public Defender, for appellant.
                                _________________




                                            5
