[Cite as State v. DeMarco, 2011-Ohio-5187.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 96605




                                     STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                   JUSTIN DEMARCO
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED



                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-543994

        BEFORE:          Celebrezze, J., Kilbane, A.J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                      October 6, 2011
FOR APPELLANT

Justin DeMarco (pro se)
4818 Elizabeth Lane
Brooklyn, Ohio 44144


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: T. Allan Regas
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




FRANK D. CELEBREZZE, JR., J.:

      {¶ 1} Appellant, Justin DeMarco, appeals the denial of his motion for jail time

credit. Prior to conviction and sentencing, appellant spent 66 days in jail. He claims

this time must be credited against his prison sentence. The state asserts that appellant

was incarcerated due to a probation violation the entire time he was awaiting trial. After

a thorough review of the record and case law, we agree with the state and affirm the trial

court’s determination.

      {¶ 2} On November 11, 2010, appellant was arrested and charged with domestic

violence. Just two weeks before, on October 25, 2010, appellant was sentenced to one

year of community control after he pled guilty to attempted domestic violence, a fifth

degree felony. The journal entry of sentence in the prior case states that appellant could
be subject to, among other things, up to one year of incarceration for violations of

community control.

       {¶ 3} In the instant case, appellant pled guilty to domestic violence, a felony of

the fourth degree. On January 13, 2011, he was sentenced to a six-month term of

incarceration and three years of postrelease control.       At sentencing, the trial court

recognized that appellant was incarcerated for violating the terms of community control

in the prior case and ordered that appellant would not receive any credit for time spent in

jail awaiting trial.

       {¶ 4} On March 3, 2011, appellant filed a pro se motion for jail time credit with

the trial court. The court denied the motion on March 10, 2011. After a failed motion

for reconsideration, appellant filed the instant appeal.

                                        Law and Analysis

       {¶ 5} Appellant now claims that “[t]he trial court committed harmful error in

failing to give [appellant] jail time credit for the time he was confined in Cuyahoga

County Jail.” However, before addressing appellant’s assigned error, the state asserts

that any such argument is barred by the doctrine of res judicata.

       {¶ 6} Res judicata involves both claim preclusion, which historically has been

called estoppel by judgment, and issue preclusion, which traditionally has been referred to

as collateral estoppel. Grava v. Parkman Twp., 73 Ohio St.3d 379, 381, 1995-Ohio-331,

653 N.E.2d 226. Under the claim preclusion branch of res judicata, “[a] valid, final

judgment rendered upon the merits bars all subsequent actions based upon any claim
arising out of the transaction or occurrence that was the subject matter of the previous

action.”   Id. at the syllabus.       Issue preclusion, or collateral estoppel, precludes

relitigation of an issue that has been “actually and necessarily litigated and determined in

a prior action.” Krahn v. Kinney (1989), 43 Ohio St.3d 103, 107, 538 N.E.2d 1058.

       {¶ 7} In State v. Deal, Hancock App. No. 5-08-15, 2008-Ohio-5408, the Third

District found that where a sentencing entry set forth that a defendant would receive no

credit for time served prior to conviction, an argument raised in a postconviction motion

for jail time credit was barred by res judicata. The court reasoned that the appellant

“could have asserted in a direct appeal that the trial court erred in failing to credit him for

additional jail time served.” Id. at ¶9, citing State v. Lynn, Van Wert App. No. 15-06-16,

2007-Ohio-3344; State v. Williams, Allen App. No. 1-03-02, 2003-Ohio-2576. See, also,

State v. Smith, Lucas App. Nos. L-08-1283, L-08-1286, and L-08-1287, 2009-Ohio-1538,

¶16 (“Because the number of days of credit to which a defendant is entitled to must be

stated in the trial court’s sentencing entry, in order to challenge the trial court’s

calculation of jail-time credit, an appellant must appeal from the trial court’s entry

imposing sentence.”).

       {¶ 8} Here, it is clear that the trial court’s January 13, 2011 sentencing entry sets

forth that appellant would receive no jail time credit. That issue was final and appealable

at that time.   Because appellant did not file an appeal from that order, the instant

argument is barred by res judicata.
       {¶ 9} Even if appellant had properly preserved this issue for appeal, his argument

that State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, stands for the

proposition that he must receive credit for time served awaiting trial is incorrect.

       {¶ 10} It is the trial court’s responsibility to calculate any credit a defendant should

receive for time spent in confinement prior to the commencement of a prison sentence.

State v. Smith (1992), 71 Ohio App.3d 302, 303-304, 593 N.E.2d 402. R.C. 2967.191

provides, “[t]he department of rehabilitation and correction shall reduce the stated prison

term * * * 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.) The statute “does not entitle a defendant to jail-time credit for any

period of incarceration which arose from facts which are separate and apart from those on

which his current sentence is based.” Smith at 304.

       {¶ 11} In Fugate, the Ohio Supreme Court found that “[w]hen a defendant is

sentenced to concurrent prison terms for multiple charges, jail-time credit pursuant to

R.C. 2967.191 must be applied toward each concurrent prison term.” Id. at the syllabus.

Fugate involves concurrent prison terms that resulted from a single trial. This case is not

applicable here, where appellant was incarcerated on an unrelated matter — violating the

terms of his community control.

       {¶ 12} The trial court did not err in denying appellant’s motion for jail time credit

where he was not entitled to credit and where appellant failed to appeal the sentence when
the trial court specifically stated that appellant would not get any credit. Appellant’s sole

assignment of error is overruled.

       Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

MARY EILEEN KILBANE, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR
