[Cite as State v. Johnson, 2012-Ohio-5164.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                              :   JUDGES:
STATE OF OHIO                                 :   Patricia A. Delaney, P.J.
                                              :   William B. Hoffman, J.
                         Plaintiff-Appellee   :   Julie A. Edwards, J.
                                              :
-vs-                                          :   Case Nos. 2011-CA-0113 &
                                              :             2011-CA-0114
                                              :
BRADLEY JOHNSON                               :
                                              :   OPINION
                    Defendant-Appellant




CHARACTER OF PROCEEDING:                           Criminal Appeal from Richland
                                                   County Court of Common Pleas Case
                                                   Nos. 01-CR-0275D & 04-CR-0203D

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            October 30, 2012

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JAMES J. MAYER, JR.                                BRADLEY JOHNSON
Richland County Prosecutor                         Inmate No. 470-776
Richland County, Ohio                              Richland Correctional Institution
                                                   1001 Olivesburg Road
BY: JILL COCHRAN                                   Mansfield, Ohio 44901
Assistant Richland County Prosecutor
38 South Park Street
Mansfield, Ohio 44902
[Cite as State v. Johnson, 2012-Ohio-5164.]


Edwards, J.

        {¶1}     Appellant, Bradley Johnson, appeals a judgment of the Richland County

Common Pleas Court denying his motion for jail time credit in Case No. 01-CR-0275D

(App. No. 2011-CA-0113) and Case No. 04-CR-0203D (App. No. 2011-CA-0114).

Appellee is the State of Ohio. On January 31, 2012, this Court consolidated these

appeals for merit review.

                                   STATEMENT OF FACTS AND CASE

        {¶2}     In 2001, appellant pleaded guilty to robbery (R.C. 2911.02(A)(2)) and

burglary (R.C. 2911.12(A)(1)) in Case No. 01-CR-0275D. He was sentenced to four

years in prison on Count One and four years of community control on Count Two. The

community control sentence was to begin upon appellant’s release from prison on

Count One, and the judgment stated that appellant could serve a period of incarceration

of eight years for violation of the terms of community control on Count 2.

        {¶3}     Appellant was remanded into the custody of the Ohio Department of

Corrections. The trial court gave appellant sixty days jail time credit on Count One for

time spent incarcerated prior to trial.

        {¶4}     Appellant was granted judicial release on June 4, 2003. Appellant had

served 590 days in prison, and had 810 days remaining on his sentence on Count One

at this time. As a condition of his release, he was ordered to complete the program at

LMCCC in Newark, Ohio. He completed this program on November 19, 2003.

        {¶5}     A probation violation was filed in Case No. 01-CR-0275D on May 24,

2004, because appellant had been charged with aiding and abetting robbery in Case

No. 04-CR-0203D. Appellant admitted to the probation violation and entered a plea of
Richland County App. Case Nos. 2011-CA-0113 & 2011-CA-0114                            3


guilty on the new charge.       For the probation violation in 01-CR-0275D, the court

sentenced appellant to four years incarceration on each count, to be served

concurrently.     Appellant was sentenced to five years incarceration in Case No. 04-CR-

0203D, to run consecutively to his sentence in 01-CR-0275D for the probation violation.

       {¶6}     On October 22, 2004, appellant filed a motion for jail time credit under

both case numbers for 610 days he spent in prison, 168 days spent at LMCCC and sixty

days for time spent at the Richland County Jail pending trial. Appellant filed a second

motion for jail time credit on February 10, 2005, seeking credit for 610 days previously

served on Count One.       The trial court gave appellant credit for 168 days spent at

LMCCC.

       {¶7}     Appellant filed another motion for jail time credit on October 17, 2005,

again seeking credit for 610 days in both cases. The trial court denied the motion,

finding that because appellant was never incarcerated on Count Two prior to 2004 when

he was sentenced based on the probation violation, he was not entitled to credit

pursuant to the rules of the Department of Corrections.

       {¶8}      Appellant filed a motion again seeking credit for the same 610 days on

April 20, 2009, which was overruled. Appellant filed a motion to reconsider on August

28, 2009, which was denied.        Appellant filed a motion seeking jail time credit on

September 29, 2010. Appellant filed yet another motion for jail time credit on November

7, 2011, which the court overruled on November 10, 2011. The trial court noted that

appellant was already awarded credit for that time on Count One of the 2001 case on

which the time was served, and the time was served prior to the commission of the

offense giving rise to his 2004 conviction.
Richland County App. Case Nos. 2011-CA-0113 & 2011-CA-0114                               4


          {¶9}   Appellant assigns a single error:

          {¶10} “THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED

APPELLANT’S DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE

UNITED STATES CONSTITUTION AND VIOLATED THE EQUAL PROTECTION

CLAUSE, WHERE APPELLANT WAS DENIED APPLICATION OF ALL HIS TIME

SPENT ON THE CONCURRENT CHARGES.”

          {¶11} Appellant failed to appeal from his original 2005 entry giving jail time

credit, and has not appealed from the trial court’s five previous judgments overruling his

request for credit for the same time period. This Court has previously found that failure

to appeal the sentencing entry constitutes res judicata to a later motion for jail time

credit:

          {¶12} “Under the doctrine of res judicata, a final judgment and conviction bars a

convicted defendant who was represented by counsel from raising and litigating in any

proceeding, except an appeal from that judgment, any defense or claimed lack of due

process that was raised or could have been raised by the defendant at trial, which

resulted in that judgment of conviction, or on appeal from that judgment. State v.

Szefck, 77 Ohio St.3d 93, 95, 1996–Ohio–337, 671 N.E.2d 233; State v. Perry (1967),

10 Ohio St.2d 175, 180, 226 N.E.2d 104. The doctrine of res judicata has also been

held to apply to a jail-time credit motion that alleged an erroneous legal determination

on jail time credit. See, State v. Chafin, Franklin App. No. 06AP–1108, 2007–Ohio–

1840; State v. Lomack, Franklin App. No. 04AP–648, 2005–Ohio–2716, at paragraph

12. Issues regarding jail-time credit are properly addressed on direct appeal. State ex

rel. Rankin v. Ohio Adult Parole Authority, 98 Ohio St.3d 476, 479, 2003–Ohio–2061,
Richland County App. Case Nos. 2011-CA-0113 & 2011-CA-0114                                 5

786 N.E.2d 1286, State ex rel. Jones v. O'Connor, 84 Ohio St.3d 426, 1999–Ohio–470,

704 N.E.2d 1223; State v. Parsons, Franklin App. No. 03AP–1176, 2005–Ohio–457, at

paragraph 8; State v. Robinson (Oct. 23, 2000), Scioto App. No. 00CA2698, 2000 WL

1617952, unreported; State v. Flynn (Nov. 7, 1997), Ashtabula App. No. 96–A0079;

State v. Walker, Muskingum App. No. CT2007–0062, 2007–Ohio–6624.”                   State v.

Guilford, 5th Dist. No. 2009CA00107, 2010–Ohio–647, ¶23.

       {¶13} Further, this Court has noted that only claims of a clerical or mathematical

error in jail time credit may be appealed from a judgment denying a motion for credit:

       {¶14} “While it is true that a defendant may appeal a trial court's denial of a

motion to correct jail time credit, an appeal is available only if the trial court refused to

correct a clerical mistake or a mathematical error in calculating time. State v. McClain,

Lucas App. No. L–07–1164, 2008–Ohio–481. In contrast, a claim that jail time credit

was denied because days were not properly classified as arising under the instant

offense is a ‘substantive’ claim ‘which must be brought to the trial court's attention

before sentencing or raised on direct appeal.’ Id. at ¶ 12. Substantive claims are barred

by res judicata. Id.; State v. Chafin, Franklin App. No. 06AP–1108.” State v. Allen, 5th

Dist. No. 12–COA–003, 2012-Ohio-1599, ¶15.

       {¶15} In the instant case, appellant’s claim is a substantive claim that the court

erred in failing to give him credit on Count Two in the 2001 case and in the 2004 case

for time served on Count One in the 2001 case. Accordingly, appellant’s claim is barred

by res judicata.
Richland County App. Case Nos. 2011-CA-0113 & 2011-CA-0114                        6


      {¶16} The assignment of error is overruled.

      {¶17} The judgment of the Richland County Common Pleas Court is affirmed.




By: Edwards, J.

Delaney, P.J. and

Hoffman, J. concur

                                                ______________________________



                                                ______________________________



                                                ______________________________

                                                          JUDGES

JAE/r0815
[Cite as State v. Johnson, 2012-Ohio-5164.]


              IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
BRADLEY JOHNSON                                  :
                                                 :
                        Defendant-Appellant      :       CASE NOS. 2011-CA-0113 &
                                                                   2011-CA-0114




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Richland County Court of Common Pleas is affirmed. Costs assessed

to appellant.




                                                     _________________________________


                                                     _________________________________


                                                     _________________________________

                                                                  JUDGES
