Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County Court of Common Pleas Trial No.
T. Deters, Hamilton County Prosecuting Attorney, and Rachel
Lipman Curran, Assistant Prosecuting Attorney, for
Gonzalez, pro se.
Defendant-appellant Nader Gonzalez presents on appeal a
single assignment of error challenging the Hamilton County
Common Pleas Court's judgment overruling his "Motion
to Correct Jail-Time Credit Criminal Rule 36." We
reverse the court's judgment.
Gonzalez was convicted in 2002 on two counts of felonious
assault. The trial court imposed consecutive eight-year
prison terms and specified in his judgment of conviction
jail-time credit of 236 days. Upon his admission to prison,
Gonzalez was provided with a document providing the details
of his sentences and notifying him that "[t]he end of
[his] definite/stated term sentence is 09/16/17." We
affirmed his convictions on appeal. State v.
Gonzalez, 154 Ohio App.3d 9, 2003-Ohio-4421, 796 N.E.2d
12 (1st Dist.), appeals not allowed, 100 Ohio St.3d
1532, 2003-Ohio-6458, 800 N.E.2d 48.
In 2010, Gonzalez moved to vacate his sentences on the ground
that he had not been sentenced in conformity with the
statutes governing postrelease control. In August 2011, in
his appeal from the overruling of that motion, we remanded
for the proper imposition of postrelease control. State
v. Gonzalez, 195 Ohio App.3d 262, 2011-Ohio-4219, 959
N.E.2d 596 (1st Dist.).
The Ohio Supreme Court had, in 2010, held that a sentencing
hearing to correct postrelease control is "limited to
the proper imposition of postrelease control." State
v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942
N.E.2d 332, paragraph two of the syllabus. In September 2011,
on remand from our August 2011 decision, the trial court
conducted a hearing and entered judgment correcting
postrelease control. But the court at the hearing also went
on to consider and reject arguments on, and then to again
impose, the consecutive eight-year prison terms. And the
court inquired into the matter of jail-time credit, stating,
"There was credit at that time for 236 days. I don't
know what his credit is now." Based on the assistant
prosecuting attorney's representation of the number of
days of confinement, the court, at the hearing and in the
judgment of conviction, credited Gonzalez with jail-time of
3, 558 days. The Ohio Department of Rehabilitation and
Correction then generated and, in November 2011, journalized
a "Notice of New Calculation of Sentence, "
reflecting "JTC 3, 563" days and a "Calculated
Release * * * Date 12/12/17."
On appeal, we affirmed the 2011 judgment of conviction.
State v. Gonzalez, 1st Dist. Hamilton No. C-110644
(Aug. 3, 2012). Citing Fischer, we overruled
Gonzalez's challenge to the trial court's failure to
conduct a de novo sentencing hearing. And we declined to
entertain his challenges to the "re-imposi[tion]"
of his 2002 sentences, the imposition of maximum and
consecutive sentences, and the failure to merge his
convictions, because the court on remand "had no
authority to alter the duration of Gonzalez's
incarceration or to merge his convictions, " when its
"authority was limited to the proper imposition of
Gonzalez's Crim.R. 36 motion. Gonzalez did not
challenge his jail-time credit until 2015, when he filed with
the common pleas court his "Motion to Correct Jail Time
Credit Criminal Rule 36." In his motion, he invoked the
court's authority under Crim.R. 36 to correct a mistake
in the calculation of jail-time credit, and he asked the
court to credit him with the 236 days credited in his 2002
judgment of conviction and to "reinstate his expected
[September 16, 2017] release date." In overruling that
motion, the common pleas court explained that the 2011
decrease in Gonzalez's jail-time credit, along with the
change in his release date from September 16, 2017 to
December 12, 2017, had resulted from its correction of the
"miscalculation" of the jail-time credit included
in his 2002 judgment of conviction. The court stated that the
2002 judgment of conviction had "overcredited" him
by providing him with the 236 days from his September 21,
2001 indictment to his May 14, 2002 conviction, when, in the
court's assessment, he was due only the 146 days between
his December 19, 2001 arrest upon his indictment and his May
14, 2002 conviction. Thus, "when he was re-sentenced on
September , 2011, * * * the same term of incarceration
was imposed, " and "he was given credit for [the]
3558 days * * * from the date of arrest [on] December 19,
2001 until the date of resentence."
Authority to correct jail-time credit under Crim.R.
36. We note at the outset that Gonzalez was sentenced
before the effective date of R.C. 2929.19(B)(2)(g).
Therefore, neither the trial court on remand in 2011, nor the
common pleas court upon Gonzalez's 2015 "Motion to
Correct Jail Time Credit, " could exercise the
"continuing jurisdiction" conferred by R.C.
2929.19(B)(2)(g)(iii) to correct an error in Gonzalez's
jail-time credit. See State v. Morgan, 1st Dist.
Hamilton No. C-140146, 2014-Ohio-5325, ¶ 5-7.
When Gonzalez was convicted in 2002, the Ohio Revised Code
sections governing jail-time credit had been construed to
impose on the trial court the duty to calculate, and to
specify in the judgment of conviction, the total number of
days that the offender had been "confined for any reason
arising out of [his] offense, " prior to his conviction
for that offense. See R.C. 2949.08(B). The
department of rehabilitation and correction was then tasked
with reducing each sentence by the jail-time credit
determined by the court, plus conveyance time. See State
ex rel. Rankin v. Ohio Adult Parole Auth., 98 Ohio St.3d
476, 2003-Ohio-2061, 786 N.E.2d 1286, ¶ 7, citing
State ex rel. Corder v. Wilson, 68 Ohio App.3d 567,
572, 589 N.E.2d 113 (10thDist.1991); RC 2967.191, 2949.08(B),
Crim.R. 36 authorizes a court to "correct * * * at any
time" "clerical mistakes in judgments." The
rule thus authorizes a trial court to, at any time, enter
judgment nunc pro tunc to the date of the original
conviction, correcting a mistake of fact, but not an error of
law, in the jail-time credit specified in a judgment of
conviction. See Heddleston v. Mack, 84 Ohio St.3d
213, 213, 702 N.E.2d 1198 (1988); State v. Weaver,
1st Dist. Hamilton No. C-050923, 2006-Ohio-5072, ¶ 12.
We conclude that the jail-time credit specified in
Gonzalez's 2002 judgment of conviction and in the 2011
judgment of conviction entered following our remand to
correct postrelease control were subject to correction under
The record shows that on July 16, 2001, the United States
Immigration and Naturalization Service ("INS"), as
it was then, initiated removal proceedings against Gonzalez.
On September 21, he was indicted for two counts of felonious
assault in Hamilton County, Ohio, and on September 25, a
warrant was issued for his arrest on those charges. On
December 10, he was taken into custody by the United States
Marshall and held on an INS detainer until December 19, when
he was arrested by the Hamilton County Sheriff on the warrant