[Cite as State v. Johnson , 2017-Ohio-4213.]


                          IN THE COURT OF APPEALS OF OHIO
                             FOURTH APPELLATE DISTRICT
                                 HIGHLAND COUNTY

STATE OF OHIO,                                 :

        Plaintiff-Appellee,                    :      Case No. 16CA26

v.                                             :
                                                      DECISION AND
RONALD G. JOHNSON,                             :      JUDGMENT ENTRY

        Defendant-Appellant.                   :      RELEASED: 06/05/2017


                                        APPEARANCES:

Ronald G. Johnson, Lebanon, Ohio, pro se appellant.

Anneka P. Collins, Highland County Prosecuting Attorney, Hillsboro, Ohio, for appellee.


Hoover, J.

        {¶1}     Defendant-appellant, Ronald Johnson, appeals the judgment of the

Highland County Court of Common Pleas denying his motion for jail-time credit. On

appeal, Johnson claims that the trial court erred in not awarding him an additional 455

days of jail-time credit for the time he was confined awaiting trial.

        {¶2}     Because Johnson failed to establish that the alleged error was not

previously raised at sentencing, the trial court did not have jurisdiction to rule on the

merits of the motion; as a result, the motion should have been dismissed.

        {¶3}     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.

                                I. Facts and Procedural History
Highland App. No. 16CA26                                                                                    2


        {¶4}     On April 11, 2006, a Highland County Grand Jury indicted Johnson on

one count of aggravated robbery in violation of R.C. 2911.01(A)(1), a felony of the first

degree; one count of burglary in violation of R.C. 2911.12(A)(2), a felony of the second

degree; and one count of theft in violation of R.C. 2913.02(A)(1), a felony of the fourth

degree. At the time Johnson was indicted, he was incarcerated at the London Correctional

Institution for allegedly violating the terms of his parole.1

        {¶5}     On April 19, 2006, Johnson was transported to the Highland County Court

of Common Pleas and arraigned on the charges.

        {¶6}     On June 28, 2007, pursuant to a negotiated plea agreement, Johnson

pleaded guilty as charged; and in exchange for his plea, the State recommended that

Johnson be sentenced to seven years on the aggravated robbery charge, four years on the

burglary charge, and one year on the theft charge. It further recommended that his terms

run concurrent to each other and to his “current incarceration for charges in 2006 in

Fayette, Adams, and Montgomery counties.” (Docket No. 73, p. 2) The trial court

followed the State’s recommendation and sentenced Johnson accordingly. It further

awarded Johnson seven days of jail-time credit.

        {¶7}     Johnson’s convictions and sentence were journalized by way of entry

dated June 28, 2007.

        {¶8}     Between July 2011 and October 2016, Johnson filed several motions in the

trial court alleging that it had erred in failing to award him 717 days of jail-time credit.


1
  Official records from the Ohio Department of Rehabilitation and Correction indicate that Johnson was
convicted of voluntary manslaughter and having a weapon while under a disability in Montgomery County
in June 2000. Unofficial records indicate that Johnson was paroled in March 2004 but re-incarcerated in
July 2005 after allegedly violating the terms of his parole. Those same records indicate that Johnson was
arraigned on charges in Fayette County in July 2005, November 2005, and March 2006 and arraigned on
charges in Adams County in March 2006.
Highland App. No. 16CA26                                                                    3


Specifically, he claimed he was arrested in connection with these offenses on July 10,

2005 but received no credit for time served between then and the date of his convictions.

He added that he was held in prison awaiting trial because the county jail did not hold

offenders who reoffended while on parole or post-release control.

       {¶9}   The trial court denied all of Johnson’s motions, noting at one point that

Johnson was not entitled to credit for time served between July 10, 2005 and the date of

his convictions because during that time he had been held on alleged parole violations—

not the offenses of which he was convicted.

       {¶10} On October 27, 2016, Johnson filed a boilerplate motion for jail-time

credit. This time, however, he asked the trial court for 455 days of jail-time credit for

time served between July 12, 2005 and October 13, 2006—the day his parole was

revoked.

       {¶11} On October 31, 2016, the trial court denied Johnson’s motion. It

explained,

       This Court has thoroughly considered all of [Johnson’s] past motions and

       has denied his request for jail time credit beyond that already ordered in

       this case. He had an opportunity to appeal the decisions. Apparently,

       [Johnson] does not understand that repeatedly filing motions seeking this

       credit is not going to change the Court’s position. Simply stated, “no”

       means no.

(Docket No. 105)

       {¶12} It is from this judgment that Johnson timely appeals.

                               II. Assignments of Error
Highland App. No. 16CA26                                                                       4


       {¶13} Johnson assigns the following errors for our review:

Assignment of Error No. I

Trial court errored [sic] in not crediting the days spent confined awaiting trial in a state
prison.

Assignment of Error No. II

Trial court errored [sic] in not adhering to R.C. 2967.191 which requires the court to
reduce the term of imprisonment by the total number of days confined for any reason
arising out of the offense for which the prisoner is convicted and sentenced for.

Assignment of Error No. III

Ronald G. Johnsons [sic] United States Constitutional Amendment Rights have been
violated by trial court not adhering to the state statutes R.C. 2967.191 Johnson’s U.S.
Const. Amend. Rights to Equal Protection have been violated by not receiving credit for
confinement awaiting trial and committment [sic].

                                  III. Law and Analysis

       {¶14} In his three assignments of error, Johnson claims that the trial court erred

in failing to award him an additional 466 days of jail-time credit. Specifically, Johnson

claims that he was arrested in connection with these offenses on July 10, 2005 but was

not awarded jail-time credit for time served between then and October 13, 2006—the day

his parole was revoked.

       {¶15} In response, the State claims that Johnson is not entitled to any additional

jail-time credit because he was being held on a valid parole holder from Montgomery

County. It claims that the fact that the conduct supporting the parole holder led to the

charges in this case is of no consequence because once a defendant is subject to a valid

parole holder, he is not entitled to pre-trial confinement credit against the sentence he

ultimately receives.


                                 A. Standard of Review
Highland App. No. 16CA26                                                                       5


       {¶16} An appellate court may modify or vacate a sentence and remand for re-

sentencing if it clearly and convincingly finds (1) the record does not support the trial

court’s findings, or (2) the sentence is contrary to law. R.C. 2953.08(G)(2). See also State

v. Farnese, 4th Dist. Washington No. 15CA11, 2015-Ohio-3533, ¶ 6; State v.

Robinson, 4th Dist. Lawrence No. 13CA18, 2015-Ohio-2635, ¶ 36; State v. Edwards, 4th

Dist. Ross Nos. 14CA3424, 14CA3425, 2015-Ohio-2140, ¶ 18.

                        B. Statutes Governing Jail-Time Credit

       {¶17} R.C. 2967.191 provides,

       The department of rehabilitation and correction shall reduce the stated

       prison term of a prisoner or, if the prisoner is serving a term for which

       there is parole eligibility, the minimum and maximum term or the parole

       eligibility date of the 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 in lieu of

       bail while awaiting trial, confinement for examination to determine the

       prisoner’s competence to stand trial or sanity, confinement while awaiting

       transportation to the place where the prisoner is to serve the prisoner’s

       prison term, as determined by the sentencing court under division

       (B)(2)(g)(i) of section 2929.19 of the Revised Code * * * .

       {¶18} R.C. 2929.19(B)(2)(g)(i) provides,

       Subject to division (B)(3) of this section, if the sentencing court

       determines at the sentencing hearing that a prison term is necessary or

       required, the court shall do all of the following:
Highland App. No. 16CA26                                                             6


       ***

       Determine, notify the offender of, and include in the sentencing entry 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 and by which

       the department of rehabilitation and correction must reduce the stated

       prison term under section 2967.191 of the Revised Code. The court’s

       calculation shall not include the number of days, if any, that the offender

       previously served in the custody of the department of rehabilitation and

       correction arising out of the offense for which the prisoner was convicted

       and sentenced.

       {¶19} The statute further provides,

       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. The offender may, at any time after

       sentencing, file a motion in the sentencing court to correct any error made

       in making a determination under division (B)(2)(g)(i) of this section, and

       the court may in its discretion grant or deny that motion. If the court

       changes the number of days in its determination or redetermination, the

       court shall cause the entry granting that change to be delivered to the

       department of rehabilitation and correction without delay. Sections

       2931.15 and 2953.21 of the Revised Code do not apply to a motion made

       under this section.

(Emphasis added.) R.C. 2929.19(B)(2)(g)(iii).
Highland App. No. 16CA26                                                                     7


 C. Johnson Failed to Establish That the Alleged Error Was Not Previously Raised
                                  at Sentencing

       {¶20} 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.

       {¶21} 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.

                                      III. Conclusion

       {¶22} Because Johnson failed to establish that the alleged error was not

previously raised at sentencing, the trial court did not have 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.

                                                JUDGMENT AFFIRMED AS MODIFIED.
Highland App. No. 16CA26                                                                          8




                                   JUDGMENT ENTRY

        It is ordered that the JUDGMENT IS AFFIRMED AS MODIFIED. Appellant
shall pay the costs.

       The Court finds that reasonable grounds existed for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Highland
County Court of Common Pleas to carry this judgment into execution.

         IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
the date of such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Harsha, J.: Concurs in Judgment and Opinion.
McFarland, J.: Concurs in Judgment Only.

                                               For the Court


                                               BY: ____________________________
                                                   Marie Hoover, Judge




                                 NOTICE TO COUNSEL

        Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.
