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State v. McKinney

Court of Appeals of Ohio, Seventh District

September 30, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
JERMAINE McKINNEY DEFENDANT-APPELLANT

Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 06 CR 16.

For Plaintiff-Appellee Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney.

For Defendant-Appellant: Jermaine McKinney, Pro se.

JUDGES: Hon. Cheryl L. Waite, Hon. Joseph J. Vukovich, Hon. Mary DeGenaro

OPINION

WAITE, J.

(¶1} Pro se Appellant Jermaine McKinney appeals the judgment of the Mahoning County Court of Common Pleas partially sustaining his motion for jail-time credit after he pleaded guilty and was sentenced on seven counts of felonious assault against a peace officer. The court granted Appellant 263 days of credit, but Appellant believes it should have been 1, 200 days because he was in jail from the date of his arrest on January 1, 2006, until the date he entered his guilty plea and was sentenced on April 16, 2009. In support, Appellant cites State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, which stands for the proposition that: "When 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 syllabus. Appellant contends he was given a concurrent sentence in this case and in a separate murder case in Trumbull County, and that he should be given 1, 200 days credit in both cases for all the time he was incarcerated in both cases

(¶2} Appellee contends that the issue raised in this appeal is a purely legal question and not a matter of simply correcting a mathematical error in applying jail-time credit, and as such, the matter should have been raised in a direct appeal and is now res judicata. Appellee asserts that Appellant was also being held in Trumbull County on separate murder charges while this case was being prosecuted. He was arrested on January 1, 2006, for the Trumbull County murders, and was convicted and sentenced to two terms of life imprisonment without parole on December 11, 2006. Appellee contends that Appellant was not entitled to credit in the instant case for the time he spent in jail or prison for the unrelated Trumbull County case. Appellee is correct. The argument raised by Appellant is a purely legal argument, and in fact, Appellant misinterprets the legal issues resolved in the Fugate case. Fugate does not explain how to calculate jail-time credit. It explains how jail-time credit is applied when concurrent sentences are imposed. Appellant is trying to challenge the court's method of calculating jail-time credit, but he cites no relevant legal support as to why the court's calculation was erroneous. Appellee correctly cites to Ohio law that a defendant is not entitled to jail-time credit for incarceration arising from a different criminal offense. Further, since Appellant could have raised this legal argument in a direct appeal and did not, the matter is res judicata. The judgment of the trial court is affirmed.

Background

(¶3} On January 1, 2006, Appellant was arrested for shooting at peace officers while he was at large for the murders of Rebecca Cliburn and Wanda Rollyson. Fourteen charges of felonious assault were filed against him in Youngstown Municipal Court. On January 10, 2006, he was bound over to the Mahoning County Grand Jury under Mahoning County Case No. 2006CR16. Just prior to this, on January 6, 2006, a nine-count indictment was issued against him in Trumbull County Case No. 05-CR-948. He was charged with aggravated murder and numerous other charges. He was tried and convicted by jury in Trumbull County on November 6, 2006. He was sentenced on December 11, 2006, to two terms of life imprisonment without parole for the two murders, ten years in prison for aggravated burglary, ten years for aggravated robbery, ten years for kidnapping, and eight years for aggravated arson, all to be served consecutively. He was later sent to the Mansfield Correctional Institution to serve out his prison term.

(¶4} On July 25, 2007, the Mahoning County Clerk of Courts received a notice of untried indictments from the Mansfield Correctional Institution pertaining to Mahoning County Criminal Case No. 2006CR16. The clerk notified the Mahoning County Prosecutor. On August 30, 2007, Appellant was indicted in Mahoning County on fourteen counts of felonious assault against a peace officer, along with corresponding firearm specifications. On April 16, 2009, Appellant entered a plea of guilty to seven counts of felonious assault against a peace officer, R.C. 2903.11(A)(2) and (D)(1)(a), and the remaining charges and the firearm specifications were dismissed. On April 16, 2009, Appellant was sentenced to seven years in prison on the felonious assault charges, to be served concurrently with the sentence in Trumbull County Case No. 05-CR-948. He was awarded 180 days of jail-time credit.

(¶5} On October 27, 2010, Appellant filed a motion for jail-time credit. His theory that he was due to receive more jail-time credit was based on State v. Fugate. The state opposed the motion. The court overruled the motion on January 23, 2012. An order overruling a motion for jail-time credit is generally not a final appealable order. State v. Carter, 7th Dist. No. 09 MA 10, 2009-Ohio-6251, ¶9.

(¶6} Appellant filed a second motion for jail-time credit on June 22, 2012, once again referencing Fugate. The court partially granted the motion on August 13, 2012. The court awarded Appellant 263 days of jail-time credit. This appeal followed. Since the court actually granted the second motion for jail-time credit, this order was final and appealable.

ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY NOT GIVEN [SIC] THE APPELLANT CREDIT FOR ALL TIME WHICH HE SPENT IN CONFINEMENT AWAITING A FINAL DISPOSITION OF HIS CASE IN State v. Jermaine McKinney, Mahoning County Court of Common Pleas Case No. 06-CR-16 WHICH TIME BEGAN ON JANUARY 1, 2006 AND ENDED ON APRIL 16, 2009 AND WHICH EQUALS TWELVE-HUNDRED (1200) DAYS AS MANDATED BY R.C. 2967.191 IN VIOLATION OF APPELLANT'S RIGHT TO ...

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