[Cite as State v. Ogletree, 2015-Ohio-4715.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                       CLARK COUNTY

 STATE OF OHIO                                       :
                                                     :
          Plaintiff-Appellee                         :   C.A. CASE NO. 2015-CA-2
                                                     :
 v.                                                  :   T.C. NO. 12CR476
                                                     :
 CHRISTOPHER OGLETREE                                :   (Criminal Appeal from
                                                     :    Common Pleas Court)
          Defendant-Appellant                        :
                                                     :
                                                     :
                                                ...........

                                               OPINION

                    Rendered on the ___13th___ day of ___November____, 2015.

                                                ...........

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Prosecuting Attorney, 50 E. Columbia
Street, 4th Floor, Springfield, Ohio 45502
        Attorney for Plaintiff-Appellee

CHRISTOPHER OGLETREE, #666-730, Madison Correctional Institute, P. O. Box 740, London,
Ohio 43140
      Defendant-Appellant

                                               .............

FROELICH, P.J.

        {¶ 1} Christopher Ogletree appeals from a judgment of the Clark County Court of

Common Pleas, which denied his motion to increase his jail time credit to 173 days. For the

following reasons, the trial court’s judgment will be affirmed.

        {¶ 2} On July 9, 2012, Ogletree was charged in an eight-count indictment with trafficking
                                                                                                    -2-

in cocaine, possession of cocaine, trafficking in heroin, possession of heroin, failure to comply

with the order or signal of a police officer, obstructing justice, and two counts of tampering with

evidence. The parties subsequently reached an agreement whereby Ogletree agreed to plead

guilty to trafficking in cocaine and possession of heroin, both felonies of the second degree, and

failure to comply with the order or signal of a police officer, a felony of the third degree. In

exchange for the plea, the remaining five counts of the indictment would be dismissed.

        {¶ 3} As part of the plea agreement, Ogletree also agreed to serve consecutive sentences

of five years for trafficking in cocaine, four years for possession of heroin, and one year for failure

to comply with the order or signal of a police officer, for an aggregate prison term of 10 years.

The parties agreed that Ogletree would serve the 10-year prison sentence concurrently with a 15-

month prison sentence that he had received in Clark C.P. No. 2011-CR-790; Ogletree had begun

serving his prison sentence for Case No. 2011-CR-790 on July 20, 2012. Finally, Ogletree agreed

to forfeit his interest in a seized vehicle.

        {¶ 4} On January 8, 2013, Ogletree entered his negotiated guilty plea. The trial court

proceeded to sentencing and imposed the agreed-upon sentence. The trial court’s judgment entry

further provided that Ogletree would receive “jail credit from July 4, 2012 to July 20, 2012 and

from January 8, 2013 until conveyance to the penitentiary.”1

        {¶ 5} Ogletree did not appeal from his conviction. Almost a year after his conviction,

Ogletree moved to withdraw his guilty plea. The trial court denied the motion, and we affirmed.

State v. Ogletree, 2d Dist. Clark No. 2014-CA-16, 2014-Ohio-3431.

        {¶ 6} On September 15, 2014, Ogletree filed a motion for additional days of jail time


1
  The record does not reflect that Ogletree was confined on July 4, 2012 regarding the
charges in this case. However, as neither party has questioned the trial court’s use of
this date, we will assume it is correct.
                                                                                                  -3-


credit. Ogletree stated that he had been credited with 16 days of jail time credit, representing

the time he spent in jail between July 4, 2012 and July 20, 2012. He sought credit for the time

he was incarcerated in Case No. 2011-CR-790 between July 20, 2012 and January 8, 2013,

plus the three days he was allegedly jailed pending conveyance to the penitentiary in this case

(January 8-11, 2013).

       {¶ 7} On September 29, 2014, Ogletree filed a document titled “Judicial Notice,”

reiterating his request for jail time credit and noting that he had filed a jail-time credit motion

under the wrong case number. On November 5, 2014, Ogletree filed another motion for jail

time credit, seeking 173 days of additional jail time credit.

       {¶ 8} On November 19, 2014, the trial court overruled Ogletree’s motion for jail time

credit, stating in total that “[p]roper jail time credit is reflected in the sentencing entry.”

       {¶ 9} Ogletree appeals from the trial court’s judgment, claiming that the trial court erred

and violated his due process rights by failing to award him 173 days of jail time credit.

       {¶ 10} As an initial matter, the State asserts that Ogletree was required to challenge the

trial court’s order of jail time credit in a direct appeal from the judgment of conviction in this

case and that his claim is now barred by res judicata. We have indicated that defendants are

required to challenge an erroneous legal determination on jail time credit in a direct appeal to

avoid being barred by the doctrine of res judicata, but that “ ‘if the trial court makes a

mathematical mistake, rather than an erroneous legal determination, in calculating the jail-time

credit, then a defendant may seek judicial review via a motion for correction before the trial

court.’ ” (Citations omitted.) State v. Flemings, 2d Dist. Montgomery No. 24615, 2011-Ohio-

4286, ¶ 28.
                                                                                              -4-


         {¶ 11} Given the trial court’s terse ruling, and assuming that Ogletree’s motion is one

for correction of a mathematical mistake on his jail time credit, his argument nevertheless lacks

merit.

         {¶ 12} R.C. 2967.191, governing jail time credit, implements the equal protection right

to credit for prior incarceration. State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883

N.E.2d 440; State v. Angi, 2d Dist. Greene No. 2011 CA 72, 2012-Ohio-3840, ¶ 7, citing State

v. Coyle, 2d Dist. Montgomery No. 23450, 2010-Ohio-2130, ¶ 5. The statute provides, in

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 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 * * *.

         {¶ 13} “Although the [department of rehabilitation and correction] has a mandatory

duty pursuant to R.C. 2967.191 to credit an inmate with jail time already served, it is the trial

court that makes the factual determination as to the number of days of confinement that a

defendant is entitled to have credited toward his sentence.” State ex rel. Rankin v. Ohio Adult

Parole Auth., 98 Ohio St.3d 476, 2003-Ohio-2061, 786 N.E.2d 1286, ¶ 7, quoted by Coyle at

¶ 7.

         {¶ 14} “[W]here a sentence is imposed concurrently with a sentence that has already
                                                                                           -5-


been imposed, and which the defendant has already begun serving, the defendant is given the

comparative luxury of serving each day of his second sentence, beginning with the first day,

concurrently with a day served on the first sentence. Thus, if the new sentence is imposed

and put into execution on the 100th day of the old sentence, the defendant is allowed to serve

the first day of his new sentence while, at the same time, serving the 100th day of the old

sentence.” (Emphasis omitted.) State v. Ways, 2d Dist. Montgomery No. 25214, 2013-Ohio-

293, ¶ 10.

       {¶ 15} However, R.C. 2967.191 does not “include time that the prisoner was

incarcerated by reason of a sentence previously imposed for a different offense, even if that

prior sentence is one with which the present sentence is ordered to be served concurrently.”

Ways at ¶ 20. Accordingly, we have consistently held that jail time credit is not appropriate

when the defendant was serving a sentence for a separate offense. See, e.g., State v. Russell,

2d Dist. Montgomery No. 26503, 2015-Ohio-3373 (defendant did not accrue jail time credit

for time he served on a separate misdemeanor offense); State v. Spears, 2d Dist. Montgomery

No. 25645, 2014-Ohio-146 (defendant was not entitled to jail time credit for 28 days during

which he served time for an unrelated misdemeanor offense); Angi, 2d Dist. Greene No. 2011

CA 72, 2012-Ohio-3840; State v. Rios, 2d Dist. Clark No. 10 CA 59, 2011-Ohio-4720. See

also State ex rel. Rankin v. Mohr, 130 Ohio St.3d 400, 2011-Ohio-5934, 958 N.E.2d 944, ¶ 2

(“ODRC director had no duty to reduce [defendant’s] 13-year sentence by the number of days

that [he] was confined for other crimes before he received the 13-year sentence.”).

       {¶ 16} Here, Ogletree’s motion indicates that he was detained at the Clark County Jail

on pending charges in this case between July 4, 2012 and July 20, 2012, for which he received
                                                                                              -6-


jail time credit. He states that he was incarcerated at the Correctional Reception Center

(“CRC”) between July 20, 2012 and August 22, 2012, and at Madison Correctional Institution

between August 22, 2012 and January 11, 2013.

       {¶ 17} Ogletree was serving a prison sentence for a separate offense in Clark C.P. No.

2011 CR 790 between July 20, 2012 and January 8, 2013, at which time he was sentenced in

this case. When the trial court ordered Ogletree’s 10-year aggregate sentence in this case to

run concurrently with his 15-month sentence in Case No. 2011 CR 790, the trial court simply

ordered that Ogletree was allowed to serve the first day of his new sentence while, at the same

time, serving the remainder of his 15-month sentence. Ogletree was not entitled to jail time

credit for the time that he served in prison in Case No. 2011 CR 790 prior to his being sentenced

in the instant case; this is true even though his sentence in this case was later ordered to run

concurrently with the sentence in Case No. 2011 CR 790.

       {¶ 18} The trial court’s award of jail time credit was proper, and the trial court did not

err in denying Ogletree’s motion for additional jail time credit. Ogletree’s assignment of error

is overruled.

       {¶ 19} The trial court’s judgment will be affirmed.

                                            .............

FAIN, J. and HALL, J., concur.

Copies mailed to:

Ryan A. Saunders
Christopher Ogletree
Hon. Douglas M. Rastatter
