[Cite as State v. Flemings, 2011-Ohio-4286.]




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

STATE OF OHIO                                     :
                                                  :     Appellate Case No. 24615
        Plaintiff-Appellee                        :
                                                  :     Trial Court Case No. 2010-CR-1301
v.                                                :
                                                  :     (Criminal Appeal from
MARTIN E. FLEMINGS                                :     (Common Pleas Court)
                                                  :
        Defendant-Appellant               :
                                                  :
                                               ...........

                                               OPINION

                             Rendered on the 26th day of August, 2011.

                                               ...........

MATHIAS H. HECK, JR., by LAURA M. WOODRUFF, Atty. Reg. #0084161, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

MARSHALL G. LACHMAN, Atty. Reg. #0076791, 75 North Pioneer Boulevard, Springboro,
Ohio 45066
       Attorney for Defendant-Appellant

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

FAIN, J.

        {¶ 1} Defendant-appellant Martin Flemings appeals from an order overruling his

motion to reconsider an entry of jail-time credit. Flemings contends that the trial court erred

in failing to grant the proper amount of jail-time credit.

        {¶ 2} We conclude that Flemings’s claim is barred by the doctrine of res judicata,
                                                                                         2


because Flemings failed to appeal from the denial of his second motion for jail-time credit.

Even if Flemings’s argument could be considered, jail-time credit is improper where a

defendant serves time for an unrelated offense during the time that he is awaiting trial on a

separate offense. Accordingly, the judgment of the trial court is Affirmed.



                                                  I

       {¶ 3} In August 2010, a complaint was filed against Martin Flemings in Dayton

Municipal Court Case No. 2010-CRA-060, alleging that Flemings had violated a protection

order issued by the Montgomery County Common Pleas Court on May 13, 2010. The date of

the alleged violation was July 15, 2010. After a probable cause hearing, the case was bound

over to the Grand Jury, which indicted Flemings on two counts in August 2010. An amended

indictment was then filed in October 2010, alleging that Flemings had committed Felonious

Assault (Serious Physical Harm)to April Elokobi on March 16, 2010. The second count

alleged that Flemings had committed Burglary for the purpose of committing Menacing on

July 15, 2010, and the third count alleged that Flemings had engaged in Menacing by Stalking

(History of Violence) from March 15, 2010 through July 15, 2010. The bail for these charges

was set in the Dayton Municipal Court at $50,000 cash or surety.

       {¶ 4} On November 19, 2010, Flemings appeared before the trial court to discuss

pleading guilty to Counts One and Three of the indictment. In exchange, the State agreed to

dismiss Count Two. At the plea hearing, the trial court indicated that it would sentence

Flemings to twelve months in prison on Count Three, and to a term of community control

sanctions for the more serious offense in Count One, to be served when Martin was released
                                                                                                 3


from prison. The trial court also stated that it would give Martin credit for time already served.

 In this regard, the following discussion occurred:

        {¶ 5} “THE COURT: * * * As relates to the menacing by stalking, which is a felony

of the fourth degree, I am going to sentence you to 12 months at the Corrections Receptions

Center, but you’ll be given credit for the time that you’ve already served. Is that –

        {¶ 6} “MR. LACHMAN: Yes, yes.

        {¶ 7} “THE COURT: – what we talked about. Twelve months at the Correction –

giving you credit for the time that you’re already served, which is approximately five months,

as I understand it. You’ll be given credit for all the jail-time credit you’re entitled to. I know

there might be some question about exactly how much that is because of an arrest that

occurred back in the summer, and whether or not you should get jail-time credit for that 10

days or so, but we’ll take a look at that. I’m not going to tell you on the record precisely what

the jail-time credit is. I will tell you that we’ll take a look at the issue of jail-time credit, and

we will ensure that you get all jail-time credit that you are legally entitled to receive.

        {¶ 8} “ * * * *

        {¶ 9} “I think that’s a fair recitation of what we discussed, is it not, Marshall?

        {¶ 10} “MR. LACHMAN: Yes, just on a couple of issues. One maybe – with regard

to the jail-time credit issue. It’s clear – I think Mr. Flemings was picked up on July 15. We

know that that will be when at least jail-time credit starts to run.

        {¶ 11} “THE COURT: Right.

        {¶ 12} “MR. LACHMAN: There was two weeks in February or March when he was

initially picked up on the felonious assault, that we will – I’ll do some research on and we’ll
                                                                                            4


talk about it. There’s that. Mr. Fleming says it was two weeks – it might have been more

like 10 days. We’ll verify that. But that, as I’ve explained to him, is an open issue. He

clearly – his out date will be no later than July of 2011. It might be a couple of weeks earlier

than that, depending on what we decide.

       {¶ 13} “THE COURT: And that’s a – that’s a very fair statement of the issue. And

the issue really is as to those 10 days or two weeks back in February, whether or not those

days are connected to or associated with the menacing by stalking.

       {¶ 14} “MR. LACHMAN: Right.

       {¶ 15} “THE COURT: Understand?

       {¶ 16} “THE DEFENDANT: Yes, sir.”             Transcript of November 19, 2010 Plea

Hearing, pp. 4-5.

       {¶ 17} After this discussion, and an explanation of the rights Flemings would be

waiving, Flemings pled guilty to Counts One and Three.          At the sentencing hearing in

December 2010, the trial court sentenced Flemings to twelve months at the Corrections

Reception Center for the menacing by stalking offense, and stated that Flemings would be

given credit for the time he had already served in the Montgomery County Jail regarding that

offense. Transcript of December 8, 2011 Sentencing Hearing, p. 21.       The termination entry

was filed on December 9, 2010. Flemings did not file a direct appeal from the judgment of

conviction and sentence.

       {¶ 18} In December 2010, Flemings filed a pro se motion for jail-time credit. He

stated that upon arriving at the state prison reception center, he learned that he had received

only 148 days of jail-time credit. Flemings claimed he was entitled to 162 days, for time
                                                                                            5


served from March 22, 2010 to April 4, 2010. Subsequently, the Division of Court Services

filed a Jail Time Credit Report, stating that Flemings had been held in custody for the

Menacing by Stalking Charge from July 16, 2010 through July 19, 2010, when he was

arrested/sentenced on misdemeanor charge in Case No. 2010-CRB-2419 in Dayton Municipal

Court, and for 79 days from September 21, 2010 through December 8, 2010, when his

misdemeanor sentence was completed.       The trial court signed the Jail Time Credit Report on

December 29, 2010, and it was filed with the court on December 29, 2010. No appeal was

taken from this decision.

       {¶ 19} Flemings filed a second pro se motion for jail credit in February 25, 2010,

contending that he was entitled to 148 days jail credit, from July 14, 2010 through December

10, 2010. Flemings alleged that he had been credited with only 84 days, due to a clerical

mistake. On March 3, 2010, the trial court filed an entry upholding its decision of December

29, 2010. No appeal was taken from this decision.

       {¶ 20} Subsequently, in April 2011, Flemings filed a motion to reconsider the jail-time

credit report, this time through counsel. Flemings contended in the motion that the court had

incorrectly concluded that he was not in custody for purposes of jail-time credit from July 20,

2010 through September 20, 2010, because he was serving a sentence from Dayton Municipal

Court during that period. Flemings argued that because he was being held in jail in lieu of

bond, it was irrelevant that he was also being held in jail on a totally unrelated matter during

the same time.

       {¶ 21} The trial court held a hearing on the matter in April 2011. Flemings’s attorney

presented the court with sentencing entries from Dayton Municipal Court. One entry placed
                                                                                           6


Flemings on probation. The second entry revoked the probation on July 20, 2010, and

committed Flemings to jail for 70 days.       Flemings was already in jail at that point on the

charge that resulted in the indictment in the case before us.

       {¶ 22} The trial court noted that Flemings was asking for credit for time served from

July 20, 2010 through September 20, 2010, for the Dayton Municipal Court case, based on the

claim that Flemings’s bond situation made it irrelevant that Fleming was also serving a

sentence on a totally unrelated matter. The trial court rejected this contention, determining

that the case was controlled by our prior decision in State v. Brown (January 26, 2001),

Montgomery App. No. 18427.           In Brown, we had held that jail-time credit was not

appropriate where the defendant had served the time for a separate misdemeanor offense while

his felony case was pending. The trial court filed an entry the same day, rejecting Flemings’s

motion to reconsider.

       {¶ 23} Flemings appeals from the denial of his motion to reconsider the entry of jail

time credit.

                                                    II

       {¶ 24} Flemings’s sole assignment of error is as follows:

       {¶ 25} “THE TRIAL COURT ERRED IN FAILING TO GRANT THE DEFENDANT

ALL THE JAIL-TIME CREDIT HE WAS ENTITLED TO.”

       {¶ 26} Under this assignment of error, Flemings contends that the trial court erred in

concluding that he is not entitled to jail-time credit for the period from July 20, 2010 to

September 20, 2010. The trial court’s decision was based on our holding in Brown that a

defendant may not receive jail-time credit for a period of time when he is incarcerated
                                                                                             7


pursuant to a sentence for a misdemeanor offense that is separate from the offense at issue.

We conclude that res judicata precludes Flemings from challenging his jail-time credit.

       {¶ 27} In State v. Roberts, Franklin App. No. 10AP-729, 2011-Ohio-1760, the

defendant was represented by counsel during a probation revocation hearing and the

sentencing hearing. Id. at ¶ 7.   Instead of filing a direct appeal, the defendant challenged his

jail-time credit through a subsequent motion. Id. The Tenth District Court of Appeals

concluded that the defendant was precluded from raising the issue, due to res judicata. In this

regard, the Tenth District Court of Appeals noted that:

       {¶ 28} “Under the doctrine of res judicata, a final judgment of 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 an appeal from that judgment. State v. Spillan, 10th Dist. No.

06AP–50, 2006–Ohio–4788, ¶ 9, citing State v. Szefcyk, 77 Ohio St.3d 93, 96,

1996–Ohio–337; State v. Perry (1967), 10 Ohio St.2d 175, 180. This court has held that the

doctrine of res judicata applies to a jail-time credit motion that alleges an erroneous legal

determination on jail-time credit. Id., citing State v. Lomack, 10th Dist. No. 04AP–648,

2005–Ohio–2716, ¶ 12; State v. Eble, 10th Dist. No. 04AP–334, 2004–Ohio-6721, ¶ 10. ‘[A]

defendant may only contest a trial court's calculation of jail-time credit in an appeal from the

judgment entry containing the allegedly incorrect calculation.’ Lomack at ¶ 11. However, ‘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
                                                                                             8


correction before the trial court.’ Id.; Eble at ¶ 10.” Roberts, 2011-Ohio-1760, at ¶ 6.

       {¶ 29} We have previously distinguished the decision in Spillman, upon which

Roberts relies. See State v. Coyle, Montgomery App. No. 23450, 2010-Ohio-2130, ¶ 8-16.

We concluded in Coyle that res judicata did not apply to the case, because the trial court had

not specified the number of days of jail-time credit in its termination entry. We stated that:

       {¶ 30} “The number of days Defendant had spent in confinement for purpose of any

reduction of his sentence to which Defendant would be entitled pursuant to R.C. 2967.191 was

not a point or fact in issue in the prior criminal action between these same parties that was

terminated by the November 30, 1998 judgment of conviction and sentence. Rather, it was a

matter collateral to the judgment of conviction and sentence the court journalized.

Furthermore, the court therein did not pass upon whether Defendant had spent any time at all

in confinement. The court instead omitted any finding regarding that point or fact when it left

blank the open space in its preprinted ‘Termination Entry.’        Had the court entered ‘0' or

‘none’ before the word ‘days,’ then Defendant's current claim would be barred by res judicata,

but the court made no such finding. Defendant's claim for jail-time credit, or the number of

days he spent in confinement for purposes of R.C. 2967.191, in the motion he filed on March

16, 2009, is therefore not barred by res judicata.” Id. at ¶ 10.

       {¶ 31} Both the termination entry and amended termination entry in the case before us

state that the “number of days for which the defendant should receive jail time credit is

indicated in the entry and warrant to transport filed in this case.” However, no such entry

appears in the record.

       {¶ 32} Flemings’s original motion for jail-time credit states that he was originally
                                                                                               9


credited with 148 days when he arrived at the correction reception center. That number was

subsequently changed to 83 days by the trial court, and notice of this was sent to Flemings.

        {¶ 33} In Coyle, we also concluded that due process requires that a defendant be given

notice of, and an opportunity to be heard regarding, the findings the court intends to make on

jail-time credit if an opportunity to be heard did not occur during the sentencing hearing. We

stated that:

        {¶ 34} “A court that journalizes a judgment of conviction and sentence required by

Crim.R. 32(C) must, as a collateral matter, also make the factual determination as to the

number of days of confinement by which the department of rehabilitation and correction must

reduce the sentence the court imposed. State ex rel. Rankin v. Ohio Adult Parole Authority,

98 Ohio St.3d 476, 2003-Ohio-2061].          When that finding is made in the sentencing

proceeding, the Defendant has an opportunity to object to it. However, the necessary facts

concerning a defendant's confinement are often not then known to the court. In that

circumstances [sic], the court must make a delayed determination, and due process then

requires that the defendant have notice of and an opportunity to be heard concerning the

finding the court proposes to make.

        {¶ 35} “In the present case, the required notice and opportunity could have been

provided through an order giving Defendant a stated period of time within which to show

cause why the court should not adopt the report of its Division of Court Services as an order of

the court. Defendant could then have filed the objections he subsequently filed, permitting a

proper resolution of the issue by the court as well as a direct appeal of the court's

determination by either party. Appellate review of the determination would then be possible
                                                                                              10


in relation to the record on which the court relied. The present record does not permit that

review.” Id. at ¶ 15-16.

       {¶ 36} After receiving notice of the 83-day jail-time credit, Flemings submitted a

second motion for jail-time credit in February 2011, setting forth his grounds for challenging

the credit. After considering this matter, the trial court upheld its prior decision granting 83

days of jail-time credit. In his second motion, Flemings had, and took advantage of, an

opportunity to object to the trial court’s calculation of jail-time credit. When the trial court

overruled his objection, Flemings could have appealed from the order overruling his objection.

 Flemings did not appeal; he filed a motion for reconsideration in April 2011. Because

Flemings failed to appeal from the March 2011 order overruling his objection to the trial

court’s calculation of his jail-time credit, his motion for reconsideration is barred by res

judicata.

       {¶ 37} Even if Flemings’s claim were not barred, it is without merit.       R.C. 2967.191

provides that:

       {¶ 38} “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, and confinement while awaiting transportation to the place where the prisoner is to

serve the prisoner's prison term.”
                                                                                           11


       {¶ 39} Flemings failed to contend in the trial court that his misdemeanor and felony

offenses were related. Flemings’s argument, instead, was that he was being held in jail in lieu

of bond for the case at hand, and that it was irrelevant whether the misdemeanor was related.

In contrast, Flemings’s contention on appeal is that the crimes are related, because the

probation revocation in the municipal court case arose from the July 15, 2010 incident that

was the subject of Count Two of the indictment in the case before us.

       {¶ 40} In Brown, the defendant was sentenced and incarcerated on an unrelated

misdemeanor offense while two other felony charges were pending. We observed that:

       {¶ 41} “With regard to Case No. 98-CR-4593, Brown claims that he was entitled to

jail time credit for the entire period from his arrest on December 4, 1998 through his transport

to the CRC on January 31, 2000. The trial court credited him for all of this time except for

the period from January 3 through 27, or twenty-five days. During this period, Brown was

serving a misdemeanor sentence imposed by the Kettering Municipal Court in an unrelated

case. R.C. 2967.191 provides for jail time credit for ‘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 * * * .’    Because Brown's confinement from January 3 through 27,

1999, was due to a separate misdemeanor offense and did not arise out of the offense at issue

in Case No. 98-CR-4593, the trial court properly refused to give Brown jail time credit for that

period. See State v. Smith (1992), 71 Ohio App.3d 302, 304.”        Brown (January 26, 2001),

Montgomery App. No. 18427, 2001 WL 62816, * 2.

       {¶ 42} Other courts have held that defendants cannot be credited for jail time when

they serve the time for unrelated offenses while they are in jail awaiting trial on separate
                                                                                          12


charges. See, State v. Harper, Sandusky App. No. S–10–005, 2010-Ohio- 6518, ¶ 11-13, and

State v. Marini, Tuscarawas App. No. 09-CA-6, 2009-Ohio-4633, ¶ 10-23. In Marini, the

Fifth District Court of Appeals reasoned that:

        {¶ 43} “When different courts impose sentences at separate times, the sentences at

best are only partly concurrent, and there is no requirement that courts arrange their cases in

such a way as to maximize concurrency. State v. Carter, 2nd Dist. No. 1580, 2002-Ohio-6387,

¶¶ 8-10. It is one thing to hold, such as the Supreme Court did in State v. Fugate, 117 Ohio

St.3d 261, 883 N.E.2d 440, 2008-Ohio-856 that jail time credit earned in two cases must be

applied to both cases when the sentences are imposed concurrently by the same court. It

would be quite another to hold in the present case that confinement while serving

non-concurrent jail time must be awarded as ‘jail time’ to reduce a later-imposed felony

sentence.” Id. at ¶ 23.

        {¶ 44} We agree with these observations. Assuming for purposes of argument that

Martin’s probation revocation occurred because of the incident that occurred on July 15, 2010,

the crime that gave rise to the sentence for which Martin was on probation in Dayton

Municipal Court occurred some time prior to July 15, 2010. Accordingly, the misdemeanor

charge is a separate offense from the charge for which Martin was confined, for purposes of

jail-time credit.

        {¶ 45} A similar situation occurred in State v. Chandler, Franklin App. No.

10AP–972, 2011-Ohio-3485. In that case, the defendant committed felony offenses while on

community control from a prior conviction. As a result of the new offenses, the defendant’s

community control was revoked, and he served time for the prior conviction while also in jail
                                                                                                                                 13


and awaiting trial on the felony offenses.                        Id. at ¶ 19-20.            The trial court credited the

defendant with this jail time when he was sentenced for the felony offenses, and the State

appealed. The Tenth District Court of Appeals reversed the award of jail-time credit, because

the defendant was not entitled to receive credit for the jail time in the subsequent case. Id. at

¶ 21.

         {¶ 46} Flemings’s sole assignment of error is overruled.1

         {¶ 47} As a final matter, we note that the State has filed a motion to supplement the

record with the complaint from Dayton Municipal Court Case No. 2010-CRB-2419 and the

civil stalking orders from Montgomery County Common Pleas Court Case No.

2010-CV-2415. The State indicates in its motion that copies of these documents are attached.

 However, only copies of the civil stalking orders have been attached. Presumably, this is the

protection order the State mentions in its brief, the violation of which resulted in the

misdemeanor charge in Dayton Municipal Court at some point prior to July 15, 2010. Having

already concluded that the misdemeanor charge is separate for purposes of jail-time credit, we

see no reason to consider supplementing the record. The State’s motion to supplement the

record is overruled.



                                                                      III

         {¶ 48} Flemings’s sole assignment of error having been overruled, the judgment of the

           1
             The transcript of the plea hearing suggests that the trial court and Flemings’s attorney may have conveyed the impression to
 Flemings that he would be credited with time he had served since July 15, 2010, less perhaps ten days or a few weeks. The trial court did
 stress, however, that Flemings would be given only the jail-time credit to which he was legally entitled, and that this would be the court’s
 decision. If his decision to enter a plea was affected by a misunderstanding of the amount of jail-time credit he would receive, Flemings may
 have had grounds to move to withdraw his plea. But the propriety of the plea is not currently before us.
                                                        14


trial court is Affirmed.

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

GRADY, P.J., and DONOVAN, J., concur.



Copies mailed to:

Mathias H. Heck
Laura M. Woodruff
Marshall G. Lachman
Hon. Michael Tucker
