IN THE S UPREME COURT OF OHIO

STATE OF OHIO,

Plainti ff-A.ppellee,

V.

NLARK S. VERDI,

Defendant-Appellant

On Appeal from theErie County Court ofAppeals, Sixth AppellateDistrict

Court of Appeals caseno. E-13-025

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT MARK S. VERDI

BARRY W. WILFORD (0014891)SARAH A. SCHREGARDUS (0080932)Kura, Wilford & Schregardus Co., L.P.A.492 City Park AvenueColumbus, OH 43215(614) 628-0100

Counsel for Appe.llant

0^^^^ .

v4z

KEVIN BAXTERMARY ANN BARYLSK.IFRANK ROMEO ZELEZNIKARErie County Prosecuting Attorney Office247 Columbus Street, Suite 319Sandusky, OH 44870(419) 627-7697

Counsel for Appellee

s . ;. ,;, :^ ,< v ;£,•{SJ:

TABLE OF C()NTEN'TS

Statement of lTVhy Leave Should be Granted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Case and Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

Argument:

Proposition of Law:

ANY POST-SENTENCINC'r CLAIM FOR CUSTODIAL CREDIT MAY BE RAISED BY1VIOTION IN THE TRIAL COURT UNLESS TI-IE ISSUE OF ENTITLEMI:N'I' TO THECREDIT WAS PREVIOUSLY RAISED AND DECIDED I3Y THE TRIAL COURT. R.C.2929.19(I3)(2)(g)(iii)

..........................5.

Conclusion 9

Proof of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Appendix:

State v. lt%fark..S: Verdi, 6' Dist. Erie No. E-13-025, 2013-Ohio-5630 (Dec. 20, 2013)

-i-

STATEMENT WHY LEAVE SHOULD BE GRANTED

This appeal involves a question of first impression on th.e interpretation to be given to a

newly enacted statute (R.C. 2929.19(B)(2)(g)), effective September 28, 2012. The issues raised

by the appeal are also important for the reasons set forth below.

Ohio law has long recognized the right of a criminal defendant held in lieu of bail on a

pending criminal case to have any pretrial time in custody accredited against a term of incarceration

iniposed in the sentence of the trial court. In practice, this sentencing funetion was through the years

subject to varying local practices by Ohio's many sentencing courts. I.n some courts the custodial

credit was typically incorporated into the judgment of conviction and sentence, but not so in other

courts. While some trial courts entertained post-sentencing motions for pretrial custodial credit, the

general law across Ohio, and specifically in the Sixth Appellate District, was that substantive errors

in pretrial custodial credit determinations were only cognizable in direct appeal from the judgment

of the trial court. And where the substantive post-sentencing claim of pretrial custodial credit was

raised after an appeal had been decided, or after the time for the right to appeal had expired, the claim

was subject to dismissal under the doctrine of res judicata, irrespective of the merits of the claim.

As a result of a recommendation of the Ohio Criminal Sentencing Commission in December,

2011 to reform Ohio sentencing law on the procedural mechanics of pretrial custodial credit

determinations and for an expanded remedy of correcting errors in trial court determinations of

pretrial custodial credit, the 129t' Ohio General Assembly enacted Senate Bill 337, effective

September 28, 2012. Specifically, tlus legislation enacted R.C. 2929.19(B)(2)(g), under which

uniformity was sought in the manner of a sentencing court's custodial credit determinations.

Relative to the instant appeal, this legislation also sought to broaden the offender's right to

-1-

raise a post-sentencing claim of error of a custody determination in two ways: (1) by granting the

sentencing court "continuing jurisdiction to correct any error not previously raised at sentencing in

making a determination;" and (2) providing a right to an offender to raise a claim of error "at any

time after sentencing." R.C. 2929.19(B)(2)(g)(iii). Significantly, the statutory language twice

expressly notes "a, ny claim of error" (emphasis supplied) in reference to both the court's continuing

jurisdiction and the right of the offender to raise a post-sentencing claim. Under this statutory

framework, if a claim of custodial credit was raised and denied by the trial court, the ruling would

remain the subject of a direct appeal, and accordingly thereafter barred by the doctrine ofres judzcata

if the claim had not been raised in the appeal or where no right to appeal had been exercised.

However, by the duo-fold extension of continuing jurisdiction of the trial court to address post-

sentencing claims of pretrial custodial credit not previously addressed at sentencing, and the

expressed right of an offender to raise by motion at any time after sentencing a claim of error in

pretrial custodial credit, the unmistakable import of this legislation was to remove froni the operation

of the doctrine ot: res judicata claims that had not previously been addressed by the trial court. In sum,

claims not previously raised were no longer waived, atid could now be raised and decided on the

merits.

The decision by the court below, on a question of first impression, guts this significant

statutory reform seemingly achieved by Senate Bill 337. The appellate court below followed its

caselaw predating enactment of SB 337 by dividing post-sentencing claims for custodial credit into

two camps: (1) claims based upon clerical mistakes, which can be addressed by the trial courts at any

time after sentencing; and (2) substantive claims, or non-clerical errors, which must be raised in the

sentencing court or raised on direct appeal, subject to "being barred from further consideration by

-2-

the doctrine of res judicata." State v. Verdi, supra ; 11 (citing State v. Newman, 6" Dist. Wood No.

'UVD-07-083, 2009-(?hio-2935 at ^ 1 l. This claim was deemed "substantive," and thus barred.

In support of its rationale rejecting Appellant's argument that the new statutory provisions

amount to a_partial exception to the doctrine of res judicata, the court below cited to six cases decided

"by appellate courts of this state since the effective date of the amendment" which adhered to its

jurisprudence that a post-sentencing custodial credit claim in the trial court may only be used to

address a purported mathematical mistake by the trial court, rather than an erroneous legal

determination. However, upon scrutiny, most of these decisions involved pro se appeals, and in none

of the appeals were the provisions of the new statute raised or cited. Even more curious, the court

below ignored cited appellate decisions in which opinions recognized the change wrought by the new

law in the application of the cloctz°ine of res judicata by appellate courts. State v. .Papczun, 9"h District

no. 26560, 2013-Ohio-1162 (Belfance, J. concurrixAg in judgment) at ¶ 12; State u. Fitzgerald, 8`t'

District no. 98723, 2013-Ohio-1893 (Boyle, J. concurring )^'(( 5-7.

The reforms advanced by the statutory enactments in R.C. 2929.19(B)(2)(g) are important

to both offenders and the state of Ohio. Erroneous custodial credit determinations result in offenders

not receiving credit for time for which they have already served and th.erefore must serve anew, thus

unfairly extending their real punishnien:t beyon.d the terrn of incarceration actually imposed. They are

also important to county and state btidgetary interests, for every day for which an offender is denied

an otherwise meritorious day of custodial credit is a day that the Ohio Department of Rehabilitation

and Correction (or county jail) must -unnecessarily house, feed and care for the offender, estimated

by the 2013 Fiscal Year Annual Report to cost $68.20/day. For these reasons, the General Assembly

duly recognized the need for assuring decisions on the merits of post-sentence claim.s of "any

-3-

error" regarding pretrial custodial credit. This Court should accept jurisdiction to provide guidance

to the lower courts on the application and interpretation of the newly enacted statute and to prevent

an aberrant holding from defeating the desired legislative reforms sought by the General Assembly.

STATEMENT OF FACTS

Proceedings below:

This is an appeal decision of the Sixth Appellate District atfirmiin; the ruling of the trial court

to deny Appellant's post-sentencing motion for custodial credit in the amount of 2346 days, made

pursuant to Ohio Revised Code § 2929.19(B)(2)(g).

Statement cffacts:

Appellant and co-defendants were arrested and held in the Lucas County jail on federal

firearrn charges wliich involved weapons used in a murder which was subject to an. Eric County

capital indictment, f led subsequent to the federal arrest. The Erie County arrest warrant was

executed and the capital indictment served upon the Appellant while he was being held in federal

pretrial detention at the L,ucas County jail, and thereafter an Erie County detainer remained placed

against his release.

The federal charges were subject to a federal trial, where Appellant was convicted and

sentenced to 180 months in the U.S. Bureau of Prisons, subject to the Erie County detainer. While

in federal prison, Erie County sought and obtained Appellant's return to state court under the

Interstate Agreement on Detainers, R.C. § 2963.30 et seq.

Prior to Appellant's return to Erie County, the Erie County prosecuting attorney sought by

motion filed in the Erie County court the court appointment of the U.S. Attorney who represented

the government in Appellant's federal prosecution admitted as Assistant Erie County Prosecuting

Attorney.

-4-

A negotiated guilty plea resulted in entry of a guilty plea in the Erie County Common Pleas

Cotu^t to reduced charges. At his sentencing hearing, Appellant was sentenced to 15 years-to-Life,

for which the court ordered to be run concurrently uith the remainder of the federal prison term. The

Erie County court awarded jail time credit only for the period of time between Appellant's return to

Ohio under the Interstate Agreement on Detainers and his return to federal prison to serve the

concurrent federal and state prison terms. Appellant was thereafter returned to federal prison to serve

the concurrent prison terms.

At the expiration of the federal prison terin, Appellant was transferred to Ohio custody

pursuant to the detainer based upon the Erie County prison term.

Subsequent to enactment of SB 337, effective September 12, 1012, Appellant filed a motion

for custodial credit in the Erie County court, seeking credit for all time subsequent to his arrest and

detention on the Erie County indictment.

Proposition of Law:

ANY POST-SENTENCING CLAIM FOR CUSTODIAL CREDIT MAY BERAISED BY MOTION IN THE? TRIAL COUItC UNLESS THE ISSUE OFENT ITLEMENT TO 'I'HE CREDIT WAS PREVIOUSLY RAISED ANI) DECIDEDBY THE TRIAL COURT. R.C. 2929.19(B)(2)(g)(iii)

A trial court's failure to properly calculate the jail-time credit is subject to direct appellate

review. State ex rel Williams v. 1VcGinty, 129 Ohio St.3d 275, 20I1-Ohio-2611, 951 N.E.2d 755;

R.C. § 2$53.08(A)(4). The standard of review is clear and convincing evidence that the sentence is

contrary to law. R.C. § 2953.48(G)(2)(b).

At issue in this appeal is the span of time between two events: (1) the execution of an arrest

warrant on Appellant by the Erie County Sheriff issued upon an indictment returned by the l:rie

-5-

County Grand Jury; and (2) arraignment of Appellant upon that indictment in the Erie County

Common Pleas Court. All other custodial credit is not at issue, for the time span between arraignment

mid the sentencing hearing was correctly determined and awarded in the trial court's final judgi'nent

entry.

The trial court reached the meri.ts of Appellant's post-sentencing motion for custodial credit,

ruling that the sentencing court did not iiltend to award credit for the period of time preceding

Appellant's conveyaiice from federal prison to Erie County under the Interstate Agreement on

Detainers, and therefore it was proper to deny Appellant's motion. From that decision on the merits

of Appellant's post-sentencing ctistodial credit claim, this appeal ensued.

However, the court below did not reach a ruling on the merits of Appellant's claim. Rather,

the court below accepted an argument of Appellee that consideration of the claim was barred by the

doctrine of res judicata, because the claim was based upon a substantive legal issue, as opposed to

a clerical error. Following its established caselaw, the court below held:

" This court has previously detennined that a niotion to correct jail-time credit is analternative to raising the issue on appeal or in postconviction relief, State v. McLain,6`h Dist. Lucas No. L-07-1164, 2008-Ohio-48 1, T 11, citing Heddleston v. Mack, 84Ohio St.3d 213, 702 Ohio St.3d 213, 702 N.E.2d 1198 (1998). However, this remedyis limited to case in which the trial court's alleged error involves a clerical mistakerather than a substantive claim. State v. Newman, 6`' Dist. Wood No. WD-07-083,2009-Ohio-2935T 10. Indeed, we have held that "[flailure to timely raise substantivejail time credit claims results in the issue being barred from further consideration bythe doctrine of res judicata."

" Here, appellant's motion is premised upon his contention that he was entitle toadditional credit for time served while he was held in custody under the federalc:harges. This was not a clerical mistake. Instead, appellant's claim is a substantiveclaim, "which must be brought to the trial court's attention before sentencing orraised on direct appeal." [emphasis by the court below]. McLain, supra atT 12.Since appellant's claim is substantive, his appeal is barred by res judicata. Id."

State v. Verdi, supra at ¶T, 11-12

-6-

T11e significant event which transpired between the dates of each of the decisions cited by the

court below and the date of its decision (December 20, 2013) was the enactment of SB 337 by the

129t'' Ohio General Assembly. Contained amid a multitude of wide-ranging provisions whose

overall purpose was to provide various means of reducing the projected Ohio prison population was

enactment of a new provision in R.C. 2929.19 governing the sentencing hearing in criminal cases.

Specifically, R.C. 2929.19(B)(2)(g) was enacted to provide uniformity in the manner of procedural

mechanics in addressing pretrial custodial credit issues by the sentencing court. Under these new

provisions a sentencing court was required to notify the offender of custodial credit determination

by which the Department of Rehabilitation and Correction was required to reduce the prison term

imposed, and .further required to include that determination in the sentencing entry. R.C.

2929.19(B)(2)(g)(i). The statute also provided the offender with a right to a hearing on a claim for

custodial credit. 2929.19(B)(2)(g)(Xi).

Pertinent to this appeal, the statute also expanded the right to bring post-sentencing custodial

credit determinations in two critical ways: (1) by granting to the sentencing court "continuing

jurisdicti:on to correct any error not previously raised at sentencing in making its determination under

division (I3)(2)(g)(i);" and (2) by creating a right of the offender "at any time after sentencing, file a

motion in the sentencing court to correct any error in making a determination under division

(B)(2)(g)(i)." R.C. 2020.10(B)(2)(g)(iii). Significantly, the statutory language twice expressly notes

"my claim of error" (emphasis supplied) in reference to both the court's continuing jurisdiction and

the right of the offender to raise a post-sentencing claim.

There is no principled way to reconcile the statutory language of the new enactment with the

6t" District's application of the doctrine of res judicata to post-sentencing substantive claims for

-7-

custodial credit. In the Sixth District interpretation, "any claim" does not mean any claim; it means

only "mathematical" claims. ln its effort of the court below to rationaliz its interpretation of the

statute, the court rejected Appellant's interpretation of R.C. 2929.10(B)(2)(C7)(iii) by accusing

Appellant of

"... overlook[ing] several cases decided by appellate courts in this state since theeffective date of the amendment, all of which maintain `[a] post-sentencing motionfor jai-time credit may only be used to address a purported mathematical mistake bythe trial court, rather than ... an erroneous legal determination.' State v. Doyle, 10t1iDist. Franklin Nos. 12AP-567, 12 AP-794, 12 AP-568, 12AP-793, 2013-Ohio-1760,1,j 10, citing;State v. Roberts, 10' Dist. FranklinND 12AP-729, 2011-Ohio-1760, i€ 6;se also State v. Summerall, 10' Distr. Franklin 12AP-445, 2012-Ohio-6234, j 11(applying res judicata to bar appellant's motion where appellant `failed to challengethe trial court's award ofjail-time credit as sentencing or on a direct appeal from hisconviction' and `did not allege that the trial cour t committed a mathematical error inthe calculation of jai-time credit so as to avoid the res judicata bar'); State v.McKinney, 7" Dist. Mahoning No. 12 MA 163, 2013-Ohio-4357 (stating thatappellant's failure to raise his `purely legal argument' eoncerning jail-time credit ona direct appeal precluded him from raising it in a subsequent appeal under the doctrineof res judicata); State v. Perry, 7th Dist. Mahoning No. 12MA 177, 2013-0'.hio-4370;T 1.2 (fmding that appellant's substantive claim for jail-time credit was barred by resjudicata where he failed to raise it on a direct appeal, noting that `[t]his is the viewacross the state"); State v. Britton, 3Ta Dist. Defiance Nos. 4-12-13, 4-12-14, 4-12-15,2013-Ohio-I(}08. T, 14 (limiting the use of a motion for correction ofjail-time creditto situations where the trial court made a mathematical mistake.)"

State v. Verdi, supra at ^l4

In fairness, these cases were not overlooked; they were disregarded. In none of these appeal

decisions was the issue of res judicata confronted with the newly enacted provisions of R.C.

2929. l9($)(2)(g). This statutory issue was neither raised by the parties (mostly pro se appellants) nor

addressed by the appellate court, and as such these appellate decisions have no precedential value

on the issue raised by the proposition of law brought in this appeal. In fact, the string citations set

forth by the court below plairily reveal that each of the decisions were rooted in the same caselaw

-8-

jurisprudence antedating the enactment of the statute that the Sixth Circuit continued to embrace in

the instant appeal.

Therefore, this appeal brings an issue of first impression, despite the cases cited by the court

below. The issue, however, has not escaped the attention of the entire appellate judiciary. In two

appeals, cited to but disregarded by the court below, opin.ions were filed which noted the probable

impact upon the new statutory provisions would have on application of res judicata by Ohio courts

to post-sentencing claims of custodial credit: State v. Papczun, 9'h Dist. no. 26560, 2013-Ohio-1162

(Belfance, J. concurring in judgm.ent) at ¶ 12; State v. Fitzgerald, 8th Dist. no. 98723, 2013-Ohio-

1893 (Boyle, J. concurring 5-7.

CONCLUSION

This Court should grant leave to appeal, reverse the judgment of the court below, and remand

the case to the court below for a decision on the merits of Appellant's claim of custodial credit.

Respectfully submitted,

BA"Y W. WILFORD (0014891)

SARAH M. SCHREGARDUS (0080932)Counsel for Appellant

PROOF OF SERVICE

A copy of the forgoing Memorandum was served upon the Erie County Prosecuting Attorney

by forwarding it via U.S. Postal Service first class mail to 247 Columbus Avenue, Sandusky, OH

44870, this 3rd day of February, 2014.

BARR * W. WILFORD

-9-

,

^ - ^ r^

^^'^^Er+ LQ P11 2: 16

IN THE COURT OF APPEALS OF OHIOSIXTH APPELLATE DISTRICT

ERIE COUNTY

State of Ohio

Appellee

V.

Marlc S. Verdi

Appellant

Coui! of Appeals No. E-13-025

Trial Court No. 1989-CR-0118

DECISION AND JUDGMENT

Decided:DEC 2 o 20n

4,-r•x* *

Kevin J. Baxter, Erie Cotinty Prosecuting Attorney, Mary AnnBarylslci and Frank Romeo Zeleznikar, Assistailt ProsecutingAttomeys, for appellee.

Barry W. Wilford and Sarah M. Schregardus, for appellant.

1. Iniroduction

{¶ 1} Appellant, Nlaxl. Verdi, appeals the judgment of the Erie County Court of'

Coinmon Pleas, denying his 1notion for eustody credit. For the following reasons, we

affirm.

^I 1D4'(P^^ ^ ^ kO

1.

YARB.ROUGH, J.

^

`;

ed,c>̂,^

C,LV _ 9

f 3 i1 >!)

A. Facts andl Pi•ocedural Baclcground

{T 2} The relevant facts are undisputed. t')n March 3, 1989, appellant was indicted

in the U.S. District Court for the Nortliern District of Ohio on tw© counts of possession of

a firearm, and one count of conspiracy, steznlning fi-oln appellant's use of a fireanii

during the con-imission of various crimes incl-Lxding aggravated murder. He was arrested

four days later and placed in federal etistody at the Lucas County Jail,

1131 One week after being indicted on the federal charges, appellant was indicted

by tlae Erie Cotinty Grand Jury on one count of aggravated murder in violation of R.C.

2903.41(A), one count of aggravated murder ' in vioIatian of R.C. 2903.01(B), one count

of aggravated murder in violation of R,C. 2903.02(A), one count of murder in violation

of R.C. 2903.02, one count of kidnapping in violation of R.C. 2905.01(A)(1), and one

count of aggravated robbery in violatioil of R.C. 2911.01(A)(1). Additionally, a firearm

specification was attached to each count in the indictment. Pursuant to the indictment, a

warrant was issucd for appellant's arrest.

{¶ 4} On March 20, 1989, the Erie County prosecuting attorney certified that

appellant was notified by the United States Marshal of the pending detainer and untried

indictment. The azrest wat°rant issued pursuant to the Erie County indictxnent was

subsequeartly ex_ecuted on May 12, 1989,

{^ 5} A jury trial commenced with regard to the federal charges on January 28,

1991. Ultimately, appellant was found guilty on all counts in the federal indictment and

ordered to serve 180 months in federal prison.

2.

{T, 6} AppeIlant was subsecluently transferred into state custody on October 11,

1994, and was finally azzaigned on the state charges three days later. On August 11,

1995, following successful plea ilegotiations, appellant pleaded guilty to one count of

aggravated murder with a fireanu specification. Pursuant to the plea agreement, the state

dismissed the rexnaining counts in the iildictment. The trial court proeeeded to sentence

appellant to a tenn of life in prison with the possibility of parole after 20 years, to be

served consecutive to the tlu•ee-year prison term attributable to the firearm specification.

The trial court ordered the sentence to be served concurrently to the federal sentence

appellant was serving at the time. 'Additionally, the court granted appellant 315 days of

jail-time credit for the time he had served while in state custody as ofthe date of

sentencing.

{li 7} On February 11, 2013, appellant filed a motion for custody credit with the

trial court, arguing that he was entitled to 2,346 days of jail-tiine credit under R.C.

2967.191. On April 5, 2013, without first conducting a hearing, the trial court issued its

judgment denying appellant's motion for custody credit. This timely appeal followed.

B. Assignments of Error

8} On appeal, appellant asserts the following assigiunents of error:

Assigm.nez^^t of Error I: TNE TUDGMENT OF THE COURT

BELOW DE?`IYING CUSTODY CREDIT IS CONTRARY TO LAW

AND SHOULD BE REVERSED AND RFMANllED.

3.

Assignment of Error ZT. THE COURT BELOW ERRED BY

DEN-YING A HEARING UPON THE MOTION FOR. CUSTODY

CREDIT, AND THE JUDGMENT OF THE COURT ST:IOULD BE

REVERSED AND REMANDED FOR HEARiNG.

II. Analysis

{¶ 9} In his first assignment of error, a.ppellant argues that the trial court erred in

denying his motion for custody credit. Appellant contends that l1e was entitled to receive

credit for 2,346 days he served while he was "physically in the Lucas County jail in the

legal custody of the U.S.1Vlarshall attendant to related criminal proceedings in federal

disti-ict court, and thereafter in the legal custody of the U,S. Department of Justice's

Bureau ofi'risons pursuant to the sentence imposed by the federal district court in those

related proceedings." While he recogn.izes that his confinenient was directly attributable

to his conviction for the federal charges, appellant argues that he was entitled to receive

jail-time credit under R.C. 2929.19(B)(2)(g)(i) and 2967.191 because he was

simultaneously subject to a certified detainer filed by the Erie County prosecuting

attomey, Further, appellant assez-ts that the Ohio Supreme Court's holding in .State v.

Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, requires the trial court to

credit him for such time hecause the court imposed his sentence concurrently with the

remainder of the federal sentence.

{¶ 10} Appellee argues that Fugate is inapplicable in this case and, further, that

appellant's motion, which was filed more tlzan a decade after the underlying sentence was

4.

ilnposed, was barred by res judicata. We agree with appellee's second argument and

conclude that it is dispositive of appellant's first assignment of error.

{t I1} This court has previously detennined that a motion to correct jail-time

credit is an ali:en3ative to raising the issue on direct appeal or in postconviction relief

State v. McLain, 6th Dist. Lucas No. L-07-1164, 2008-Qhio-48 I, T 11, citing Iledclleston

v. Mack, 84 Ohio St.3d 213, 702 N.E.2d 1198 (1998). However, this remedy is limited to

cases in which the trial court's alleged error involves a clerical pnistalce rather than a

substantive claim. State v. Newrnan, 6th Dist. Wood No. DVD-07-083, 2009-Qhio-2935,

^ 10. Indeed, we have held that "[flailure to timely raise substantive jail time credit

claims results in the issue being barred from furtfier consideration by the doctrine of res

judicata." .ld. at T 11.

{^ 12} Here, appellant's motion is premisect upon his contention that he was

entitled to additional credit for tiine served while he was held in custody under the federal

charges. This was not a clerical inistake. Instead, appellant's claim is a substantive

claim, "which mtist be brought to the trial court's attention before sentencing or raised on

direct appeal." (Emphasis added.) McLain at T 12, Since appellar^t's claim is

substantive, his appeal is barred by res judicata. Id.

{¶ 13} Nonetheless, appellant argues that his appeal is not barred by res judicata in

light of a recent arnendznent to R.C. 2929.19(B)(2)(g)(iii), which now provides:

The sentencing court retains continuing jurisdictiorz to correct any

eiTor not previously raised at sentencing in making a determination under

5.

division (B)(2)(g)(i) of this section. The offender may, at any tizne after

sentencing, file a motion in the sentencing court to co3xect 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 nuinber of days in its detert-nination or redeterrnination, 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 2953.27 of the Revised Code do not apply to a motion made

under this section.

{¶ 14} Referencing R.C. 2929.19(B)(2)(g)(iii), appellant contends that the General

Assembly intended to create a"statutory exception to the doctrine ofre;s,judicata as

applied to custody credit deternzinations." However, appellant's argument overlooks

several cases decided by appellate courts in this state since the effective date of the

amendment, all of which maintain that "[a] post-sentencing motion for jail-time credit

may only be used to address a puiported mathematical mistake by the trial court, rather

than. an erroneous legal deten.uination." State v. Doyle, 10th Dist. Franlclin Nos.

12AP-567, 12AP-794, 12AP-568, 12AP-793, 2013-Ohio-3262, ^ 10, citing State v,

Roberts, 1 Oth Dist. Franlclari No. 1 OAP-729, 2011-Ohio-1760, TJ 6; see also State v.

Summerall, 1Ot11 Dist. Franklin No. 12AP-445, 2012-C3hio-6234, T, 11 (applying res

judicata to bar appellant's motion where appellant "failed to challenge the trial court's

award of jail-tizne credit at sentencing or on a direct appeal from his conviction" and "did

6.

not allege that the trial court colnmitted any mathematical error in the calculation ofjail-

time credit so as to avoid the res judicata bar"); State v. McKinney, 7th Dist. Mahoning

No. 12 MA 163, 2013-Qhio-4357 (stating that appellant's failure to raise his "purely

legal a.rgument" concerning jail-time credit on a direct appeal precluded hiin froin raising

it in a subsequent appeal under the doctrine of res judicata); Stale v. Perry, 7th Dist.

Mahoning No. 12 MA 177, 2Q13-fJhio-4370, 112 (finding that appellant's substantive

claim for jail-time credit was barred by res judicata where he failed to raise it on a direct

appeal, noting that "[t)his is the view across the state"); State v. Britton, 3d Dist. Defiance

Nos. 4-12-13, 4-12-14, 4-12-15, 2Q13-C}hio-10Q8, T 14 (Iiiniting the use of a motion for

correction of.jail-time credit to situations where the trial court made a mathematical

niistake).

{¶ 15} In light of the foregoing, we conclude that principles of res judicata bar

appellant's claim for additional jaiI-tinle credit. Accordingly, appellant's first assignment

of error is not well-taken.

{¶ 16} In his second ass.iglunent of error, appellant argues that the trial court eired

in clenyirig his motion without first holding a hearing on the matter. Citing R.C.

2929.19(13)(2)(g)(ii), appellant contends that the court was required to conduct a hearing

on I1is motion before issiung its decision, especially in light of appellant's request for

such hearing corltained within the motion. Appellee responds by arguing that R.C.

2929.19(B)(2)(g)(ii) does not apply to motions, such as the one at issue here, that seek to

correct a trial court's allegedly eiToneous calculation of jail-time credit.

7.

{^j 17} R.C. 2929.19(B)(2)(g)(ii) provides, "In making a detenni.nation under

di vision (B)(2)(g)(i) of this section [concerning the amount of j ail-tzine credit a defendant

should receive], the couz-t shall consider the arguments of the paa-ties and conduct a

hearing if one is requested." L.Tnder a plain reading of the statute, this provision is limited

in its application to the trial court's initial caleulation ofjail-time credit under R.C.

2929.19(B)(2)(g)(i). Here, appellant's motion to correct the trial court's initial

deten.ninatio.n ofjail-time credit was not niade under R.C. 2929.19(B)(2)(g)(i), but rather

was made under R.C. 2929.19(B)(2)(g)(iii). Thi2s, R.C. 2929.19(B)(2)(g)(ii) does not

apply to require the trial' court to hold a hearing, Further, appellant does not argue that he

was denied a hearing when he was originally sentenced. On the contrary, the record

clearly reveals that a sentencing hearing was held on August 11, 1995, at wbich time the

court calculated that appellant was entitled to 315 days of jail-time cred.it. Thus, the

hearing requirement contained in R.C. 2929.19(B)(2)(g)(ii) was satisfied in this case.

{^ 18} Accordingly, appellant's second assignment of error is not well-taken.

111. Conclusion

{¶ 19} For the foregoing reasons, the judgi^nent of the Erie County Court of

Cominon Pleas is affinned. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.

Judg7nent affirined.

8.

State v. VerdiC.A. No. E- I 3-025

A certified copy of this entry shall constitute the mandate pursuant to App.R; 27. Seealso 6th Dist.Loc.App.R, 4.

i -iEREBY CERTIFY THIS TO BEts,-TRUE COPY OF THE ORIGINALF-; 1.ED IN THIS OFF4CE.

Lli`JA,A S. LN1^^: Y•1N, CLERK OF COURTS

ErieLoun:y;Ohio;` -•-^.' {By

9.