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State v. Gibson

Court of Appeals of Ohio, Tenth District

October 26, 2017

State of Ohio, Plaintiff-Appellee,
Daniel R. Gibson, Defendant-Appellant.

         C.P.C. No. 15CR-5417


          Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.

          Timothy Young, Ohio Public Defender, and Terrence K. Scott, for appellant.


          BRUNNER, J.


         {¶ 1} On August 17, 2017, this Court issued a decision reversing the Franklin County Court of Common Pleas' judgment that denied defendant-appellant's, Daniel R. Gibson, motion for recalculation of jail-time credit. State v. Gibson, 10th Dist. No. 17AP-200, 2017-Ohio-7254. The common pleas court found in denying Gibson's motion that he had "not alleged" that the jail-time credit error had not been raised at sentencing so as to avail himself of a statutory postconviction motion authorized by R.C. 2929.19(B)(2)(g)(iii). (Feb. 17, 2017 Jgmt. Entry at 2.) Because Gibson did state facts in his motion to recalculate his jail-time credit that amounted to an assertion that he had not previously raised his claim, we concluded by a 2 to 1 majority that the trial court had erred in deciding that R.C. 2929.19(B)(2)(g)(iii) could not and did not apply to Gibson's motion. Gibson at ¶ 11-12. For that reason, we reversed. The plaintiff-appellee, State of Ohio, now asks that we 2017-Ohio-8329.docx consider the matter en banc based on an alleged conflict with State v. Smith, 10th Dist. No. 15AP-209, 2015-Ohio-4465, and certify the matter to the Supreme Court of Ohio based on alleged conflicts with State v. Johnson, 4th Dist. No. 16CA26, 2017-Ohio-4213, and State v. Guiterres, 11th Dist. No. 2015-T-0116, 2016-Ohio-5572.

         {¶ 2} We address in a separate decision whether en banc consideration is warranted or required, but we also discuss Smith in this decision because Smith is the case on which both Johnson and Guiterres rely for their holdings alleged to be in conflict with our decision in Gibson.


         {¶ 3} The Supreme Court has explained:

[A]t least three conditions must be met before and during the certification of a case to this court pursuant to Section 3(B)(4), Article IV of the Ohio Constitution. First, the certifying court must find that its judgment is in conflict with the judgment of a court of appeals of another district and the asserted conflict must be "upon the same question." Second, the alleged conflict must be on a rule of law -- not facts. Third, the journal entry or opinion of the certifying court must clearly set forth that rule of law which the certifying court contends is in conflict with the judgment on the same question by other district courts of appeals.

Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 596 (1993).

         {¶ 4} In Gibson, we reviewed a decision of the Franklin County Common Pleas Court by which the trial court found that Gibson had not alleged that the problem he perceived with his jail-time credit had not been raised at sentencing (which he did allege in his application) and that he was barred from the trial court's consideration of his motion by the doctrine of res judicata. The State argued, and the dissent agreed, that Gibson was required to ab initio submit evidence with his motion for jail-time credit proving that his motion was not barred by res judicata. (Aug. 28, 2017 Mot. for En Banc & to Certify at 5- 11.) Specifically, we said:

[T]he State argues that R.C. 2929.19(B)(2)(g)(iii) requires Gibson not only to raise the error, but to prove it by supplying a transcript with his motion.[fn. 1] We find no basis for this in the language of the statute. The State would have us interpret the statute so as to create a presumption that such error had been raised at sentencing unless a defendant can produce a transcript that proves otherwise, or else res judicata bars relief. This is not what the statute requires.
[fn. 1] It is conceivable that the State could have provided a transcript or portion thereof with its memorandum opposing Gibson's motion for jail-time credit. It did not do so and instead argues that Gibson should have.

Gibson at ¶ 10. Following the suggestion raised in the dissenting opinion in Gibson, the State now argues that Gibson conflicts with Guiterres and Johnson in that both adhere to the principle (originally set forth in Smith) that the defendant-movant has the burden of establishing that the alleged jail-time credit error was not previously raised at sentencing. Johnson at ¶ 20, citing Smith at ¶ 10; Guiterres at ¶ 15, citing Smith at ¶ 10. That principle of law from Smith is correct. Smith at ¶ 10. But to apply it as the State, the dissent in Gibson, and now the dissent herein suggests-to require the filing of a transcript ab initio with the motion pursuant to R.C. 2929.19(B)(2)(g)(iii)-is too simplistic an application of Smith and is inconsistent with both the statute and case law. Smith does not even address that a movant must conclusively rebut res judicata before it is affirmatively raised by the State, only that entitlement to relief must be established.[1]

         {¶ 5} In criminal cases, res judicata generally bars a defendant from litigating claims in a proceeding subsequent to the direct appeal "if he or she raised or could have raised the issue at the trial that resulted in that judgment of conviction or on an appeal from that judgment." (Emphasis sic.) State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, ¶ 92. Res judicata is not specifically addressed in the Ohio Rules of Criminal Procedure. Thus, to properly assert a claim of res judicata in criminal cases, Crim.R. 57(B) instructs the parties and the courts to "look to the rules of civil procedure and to the applicable law."

         {¶ 6} Rule 8(C) of the Ohio Rules of Civil Procedure classifies "res judicata" as an "affirmative defense." Ohio criminal case law is consistent with this designation. State v. Lelux, 10th Dist. No. 97APA10-1308, 1998 WL 303884, 1998 Ohio App. LEXIS 2547, *5 (June 11, 1998); see also, e.g., State v. Williams, 8th Dist. No. 103144, 2016-Ohio-2629, ¶ 9. Moreover, in Ohio civil case law, the Supreme Court has held that "[i]t is not proper for a court to grant a motion to dismiss based on res judicata, because res judicata is an affirmative defense, and because resolution of a res judicata defense typically requires resort to materials outside the pleadings." (Citations omitted.) State ex rel. West v.McDonnell,139 Ohio St.3d 115, 2014-Ohio-1562, ΒΆ ...

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