[Cite as State v. Smith, 2017-Ohio-4124.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                            LAKE COUNTY, OHIO


STATE OF OHIO,                                       :      OPINION

                 Plaintiff-Appellee,                 :
                                                            CASE NO. 2016-L-107
        - vs -                                       :

STANLEY T. SMITH,                                    :

                 Defendant-Appellant.                :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2014 CRA
00965.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, Lake County Administration Building,
105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

Michelle M. French, Law Offices of Michelle M. French, LLC, 28 West Jefferson Street,
Jefferson, OH 44047 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     Appellant, Stanley T. Smith, appeals from the September 29, 2016

judgment of the Lake County Court of Common Pleas, denying his pro se motion for jail-

time credit. Appellant’s appointed, appellate counsel has filed a brief and requested

leave to withdraw, pursuant to Anders v. California, 386 U.S. 738 (1967). Appellant was

served with the brief and subsequently filed a pro se appellate brief.   After conducting
an independent review of appellant’s case, we conclude the instant appeal is wholly

frivolous and affirm the trial court’s denial of appellant’s motion.

       {¶2}   On May 30, 2014, appellant was indicted in Ashtabula County for illegal

assembly or possession of chemicals for the manufacture of drugs, a felony of the third

degree, in violation of R.C. 2925.041.       See Ashtabula County Case No. 2014-CR-

00207. Appellant entered an Alford plea and the trial court continued his bond, along

with sentencing, pending a pre-sentence investigation report.

       {¶3}   On December 8, 2014, appellant was charged in Lake County with illegal

assembly or possession of chemicals for the manufacture of drugs, a felony of the third

degree. See Lake County Case No. 2014 CRA 00965. Appellant did not post bond and

remained in the custody of the Lake County jail until January 27, 2015, when he was

conveyed from Lake County to Ashtabula County for sentencing in the Ashtabula case.

Appellant was sentenced to 30 months in that matter, with zero days of jail-time credit.

He was then returned to Lake County for disposition of the Lake case.

       {¶4}   On April 14, 2015, appellant pleaded guilty to the Lake county charge and

the case proceeded to sentencing on that date. The trial court ordered appellant to

serve a 24-month term of imprisonment on the charge, to be served consecutively to the

Ashtabula sentence. Appellant was given 50 days of jail-time credit.

       {¶5}   On June 3, 2015, appellant filed a pro-se motion for jail-time credit. The

state duly opposed the motion and, on June 10, 2015, the trial court denied the motion.

Subsequently, on September 26, 2016, appellant filed a successive pro-se motion for

jail-time credit, asserting the same argument posed in his first motion. The state again




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opposed the motion and, on September 29, 2016, the trial court denied the second

motion. Appellant filed the instant appeal.

       {¶6}   On January 3, 2017, appointed appellate counsel filed a brief, pursuant to

Anders, supra.    In Anders, the United States Supreme Court held that if appellate

counsel, after a conscientious examination of the record, finds an appeal to be wholly

frivolous, he or she should advise the court and request permission to withdraw. Id. at

744. This request to withdraw must be accompanied by a brief citing anything in the

record that could arguably support an appeal. Id. Further, counsel must furnish his or

her client with a copy of the brief and request to withdraw and give the client an

opportunity to raise any additional issues. Id. Once these requirements have been met,

the appellate court must review the entire record to determine whether the appeal is

wholly frivolous. Id. If the court finds the appeal wholly frivolous, the court may grant

counsel’s motion to withdraw and proceed to a decision on the merits. Id. If, however,

the court concludes the appeal is not frivolous, it must appoint new counsel for the

client. Id.

       {¶7}   Pursuant to Anders, counsel’s brief was properly served on appellant, who

filed a merit brief. As a possible challenge, counsel posited the following:

       {¶8}   “Did the trial court err to the prejudice of the appellant by failing to grant

the appellant the appropriate amount of jail time credit?”

       {¶9}   In his brief, appellant raised essentially the same error; to wit:

       {¶10} “The trial court erred to the prejudice of appellant’s rights to due process

and equal protection of the law guaranteed by the United States and Ohio Constitutions

by failing to grant appellant credit for all time spent in the custody of the sheriff prior to




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delivering appellant into the custody of the Ohio Department of Rehabilitation and

Corrections.”

       {¶11} We must first address whether the foregoing challenges are barred by the

doctrine of res judicata.   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 “at any time after sentencing, [to] 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.” 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, ¶10. Motions to correct errors made in determining jail-time credit

filed outside the time allowed for direct 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. Pursuant to R.C. 2929.19(B)(2)(g)(iii), res

judicata will not bar a motion to correct errors in jail-time credit filed after the time for

appeal has passed; this, however, does not imply that res judicata is never applicable to

such motions.

       {¶12} On June 3, 2015, after the trial court entered sentence, appellant filed a

motion for jail-time credit, which the trial court denied. Appellant did not appeal that

judgment. Later, on September 26, 2016, appellant filed a second motion for jail-time

credit. The trial court again denied the motion and appellant filed the instant appeal.

Appellant had the right to appeal the judgment denying his first motion, but failed to do




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so.   Simply because res judicata does not operate to bar an initial, post-sentence

motion for jail-time credit, does not imply the doctrine is inapplicable to successive

motions. No injustice will result if res judicata is applied to bar appellant’s second

motion.      Because the jail-time credit question is the only subject at issue in the

underlying judgment, and that question is barred by res judicata due to appellant’s

failure to appeal the court’s denial of his first motion, the instant appeal is wholly

frivolous.

       {¶13} Even assuming the jail-time credit issue is not barred by res judicata, the

trial court did not err in denying the motion. On April 14, 2015, appellant was sentenced

to 24-months imprisonment, with 50 days jail-time credit (from December 8, 2014, the

day of his arrest in the underlying matter through January 26, 2015, the date he was

conveyed to Ashtabula County for sentencing on a separate charge). The 24-month

term was ordered to be served consecutively to his 30-month term ordered in the

Ashtabula County case.

       {¶14} R.C. 2967.191 provides, in relevant 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.” (Emphasis added.) Appellant was

confined as a result of the underlying offense from December 8, 2014 through January

26, 2015, i.e., 50 days. Had the trial court ran appellant’s sentence in the underlying

matter concurrently with the Ashtabula sentence, appellant would have been entitled to

additional credit (from December 8, 2014 through April 14, 2015, the date of his

sentencing in Lake County). See State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856,




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¶22 (“When a defendant is sentenced to consecutive terms, the terms of imprisonment

are served one after another. Jail-time credit applied to one prison term gives full credit

that is due, because the credit reduces the entire length of the prison sentence.

However, when a defendant is sentenced to concurrent terms, credit must be applied

against all terms, because the sentences are served simultaneously.”) The trial court

did not sentence appellant to concurrent terms and, as a result, appellant was entitled

only to the 50-day credit. The trial court did not err in denying appellant’s motion.

       {¶15} Our Anders review in the instant case is limited to the narrow issue of

whether the trial court erred in denying appellant’s motion for jail-time credit. We hold,

as a matter of law, the trial court properly denied that motion. We therefore conclude

the instant appeal is wholly frivolous.     The judgment of the Lake County Court of

Common Pleas is hereby affirmed and counsel’s motion to withdraw is granted.



DIANE V. GRENDELL, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

                               ______________________


COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.


       {¶16} I respectfully dissent based on my dissenting opinions in similar matters

involving Anders. State v. Christian, 11th Dist. Trumbull No. 2013-T-0055, 2014-Ohio-

4882, ¶21-34; State v. Spears, 11th Dist. Ashtabula No. 2013-A-0027, 2014-Ohio-2695,

¶14-19; State v. Burnett, 11th Dist. Lake No. 2013-L-053, 2014-Ohio-1358, ¶29–34;

State v. Gibbs, 11th Dist. Geauga No. 2012-G-3123, 2014-Ohio-1341, ¶37-42.




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