[Cite as State v. Moss, 2019-Ohio-2167.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                  :         OPINION

                 Plaintiff-Appellee,            :
                                                          CASE NO. 2018-A-0101
        - vs -                                  :

DAVID V. MOSS,                                  :

                 Defendant-Appellant.           :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2015
CR 00137.

Judgment: Modified and affirmed as modified.


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

David V. Moss, pro se, PID: A684-335, Lake Erie Correctional Institution, P.O. Box
8000, 501 Thompson Road, Conneaut, OH 44030 (Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, David V. Moss, appeals the December 11, 2018 decision of the

Ashtabula County Court of Common Pleas denying his motion for additional jail-time

credit. For the reasons set forth herein, we modify the judgment and affirm as modified.

        {¶2}     In 2016, Mr. Moss pleaded guilty to four counts of endangering children, in

violation of R.C. 2919.22(B)(4), felonies of the third degree, and one count of attempted

felonious assault, in violation of R.C. 2923.02(A) and R.C. 2903.11(A)(1), a felony of the
third degree. He was sentenced to two consecutive years imprisonment on each count,

for a total prison term of ten years.

       {¶3}   Mr. Moss timely appealed. This court affirmed the trial court’s decision in

an opinion dated April 24, 2017. State v. Moss, 11th Dist. Ashtabula No. 2016-A-0047,

2017-Ohio-1507, ¶4, appeal not allowed, 150 Ohio St.3d 1445, 2017-Ohio-7843.

       {¶4}   In June 2018, Mr. Moss filed a motion for additional jail-time credit, which

was denied on December 11, 2018. Mr. Moss now appeals that decision and assigns

one error for our review:

       {¶5}   “The trial court violated Moss’ Constitutional rights when it denied Moss’

request for all of his pre-sentence confinement (jail-time credit) to be applied to his

sentence.”

       {¶6}   The state, in rebuttal, argues that Mr. Moss’ present appeal is barred by

res judicata. “Res judicata bars the assertion of claims against a valid, final judgment of

conviction that have been raised or could have been raised on appeal. Ohio courts of

appeals have applied res judicata to bar the assertion of claims in a motion to withdraw

a guilty plea that were or could have been raised at trial or on appeal.” (Citations

omitted.) State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, ¶59.

       {¶7}   However, in 2016, the Supreme Court of Ohio held that though prior to the

enactment of R.C. 2929.19(B)(2)(g)(iii) “[m]otions 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,” after the enactment of the statute “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




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was ‘not previously raised at sentencing.’” State v. Thompson, 147 Ohio St.3d 29,

2016-Ohio-2769, ¶¶11, 12, quoting R.C. 2929.19.            While res judicata applies to

successive motions regarding jail-time credit, it does not bar an initial, post-sentence

motion for jail-time credit. See State v. Watson, 11th Dist. Trumbull No. 2017-T-0047,

2017-Ohio-8631, ¶8.      As Mr. Moss is appealing the denial of his first motion for

correction of jail-time credit, his appeal is not barred by res judicata and we evaluate his

appeal on its merits.

       {¶8}    “‘“We review the trial court’s determination as to the amount of credit to

which [a defendant] is entitled under the ‘clearly and convincingly’ contrary to law

standard.”’”   State v. Garver, 11th Dist. Lake No. 2016-L-069, 2017-Ohio-1107, ¶8,

quoting State v. Moore, 11th Dist. Ashtabula No. 2015-A-0069, 2016-Ohio-3510, ¶15.

An appellate court must modify or vacate sentences if it finds by clear and convincing

evidence the record does not support trial court’s findings. State v. Marcum, 146 Ohio

St.3d 516, 2016-Ohio-1002, ¶22.

       {¶9}    Mr. Moss cites State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, in

support of his claim. In Fugate, the Supreme Court of Ohio found that the defendant

was entitled to have his jail-time credit applied to his concurrently-run sentences. Mr.

Moss seeks for the same rule to be applied to consecutive sentences, such as his, and

asks that all the jail-time credit he was given be applied to each count. However, as the

Court in Fugate expressly states, different rules apply to concurrent and consecutive

prison terms. Id., at ¶20. Moreover, as we previously held, “when offenders are serving

consecutive terms, jail-time credit is to be applied only once.” State v. Lane, 11th Dist.

Lake No. 2017-L-046, 2017-Ohio-9335, ¶13.




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       {¶10} Thus, to the extent Mr. Moss seeks the application of his jail-time credit to

each consecutively run count, his assignment of error is without merit.

       {¶11} We also address Mr. Moss’ assertion that he is entitled to a total of 16

days jail-time credit. The calculation of jail-time credit is generally governed by R.C.

2967.191, which provides, in pertinent part: “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 person is to serve the sentence.”

       {¶12} Mr. Moss contends that the trial court counted only six days jail-time credit

when he was due 16 days. At his sentencing hearing on July 11, 2016, Mr. Moss was

awarded six days jail-time credit; he asserts it should have also included the ten days

he spent at the Ashtabula County Jail from July 10, 2016 to July 20, 2016 awaiting his

transport to the Lorain Correctional Institution.

       {¶13} First, we note that Mr. Moss’ calculation of ten days awaiting transport is

incorrect.     He was sentenced on July 11, 2016, not July 10, 2016, and was not

incarcerated on July 10, 2016. Furthermore, considering he was imprisoned at the

Lorain Correctional Institution on July 20, 2016, he is not entitled to credit for that day.

Thus, Mr. Moss spent eight days in jail awaiting transport. Combined with the six days

jail-time credit granted by the trial court, Mr. Moss is entitled to a total of 14 days jail-

time credit.

       {¶14} R.C. 2929.19 states in pertinent part: “[i]f the court changes the number of

days in its determination or redetermination, the court shall cause the entry granting that




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change to be delivered to the department of rehabilitation and correction without delay.”

Though it does not appear from the record that the trial court redetermined the number

of days of jail-time credit to grant Mr. Moss the 14 days he was entitled to, the Ohio

Department of Rehabilitation and Correction records nonetheless accurately reflect 14

days jail-time credit. Whether the court issued an order to the Ohio Department of

Rehabilitation and Correction that did not become part of the record, or the Ohio

Department of Rehabilitation and Correction calculated his jail-time credit on its own,

the sentence Mr. Moss is serving correctly reflects the 14 days jail-time credit he is due.

       {¶15} Mr. Moss’ assignment of error is without merit.

       {¶16} Therefore, we modify the judgment of the Ashtabula County Court of

Common Pleas to reflect a 14-day jail-time credit and affirm the same as modified.



TIMOTHY P. CANNON, J.,

MARY JANE TRAPP, J.,

concur.




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