Court of Appeals of Ohio, Eleventh District, Ashtabula
Criminal Appeal from the Ashtabula County Court of Common
Pleas, Case No. 2015 CR 00137.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley
M. Pratt, Assistant Prosecutor, (For Plaintiff-Appellee).
V. Moss, pro se, (Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
Appellant, David V. Moss, appeals the December 11, 2018
decision of the Ashtabula County Court of Common Pleas
denying his motion for additional jail-time credit. For the
reasons set forth herein, we modify the judgment and affirm
In 2016, Mr. Moss pleaded guilty to four counts of
endangering children, in violation of R.C. 2919.22(B)(4),
felonies of the third degree, and one count of attempted
felonious assault, in violation of R.C. 2923.02(A) and R.C.
2903.11(A)(1), a felony of the third degree. He was sentenced
to two consecutive years imprisonment on each count, for a
total prison term of ten years.
Mr. Moss timely appealed. This court affirmed the trial
court's decision in an opinion dated April 24, 2017.
State v. Moss, 11th Dist. Ashtabula No. 2016-A-0047,
2017-Ohio-1507, ¶4, appeal not allowed, 150 Ohio St.3d
In June 2018, Mr. Moss filed a motion for additional
jail-time credit, which was denied on December 11, 2018. Mr.
Moss now appeals that decision and assigns one error for our
"The trial court violated Moss' Constitutional
rights when it denied Moss' request for all of his
pre-sentence confinement (jail-time credit) to be applied to
The state, in rebuttal, argues that Mr. Moss' present
appeal is barred by res judicata. "Res judicata bars the
assertion of claims against a valid, final judgment of
conviction that have been raised or could have been raised on
appeal. Ohio courts of appeals have applied res judicata to
bar the assertion of claims in a motion to withdraw a guilty
plea that were or could have been raised at trial or on
appeal." (Citations omitted.) State v.
Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, ¶59.
However, in 2016, the Supreme Court of Ohio held that though
prior to the enactment of R.C. 2929.19(B)(2)(g)(iii)
"[m]otions to correct errors made in determining
jail-time credit that were filed outside the time allowed for
appeal were barred by the doctrine of res judicata,"
after the enactment of the statute "an offender can file
a motion to correct an error in determining jail-time credit
'at any time after sentencing' and the sentencing
court has authority to correct any error in determining
jail-time credit that was 'not previously raised at
sentencing.'" State v. Thompson, 147 Ohio
St.3d 29, 2016-Ohio-2769, ¶¶11, 12, quoting R.C.
2929.19. While res judicata applies to successive motions
regarding jail-time credit, it does not bar an initial,
post-sentence motion for jail-time credit. See State v.
Watson, 11th Dist. Trumbull No. 2017-T-0047,
2017-Ohio-8631, ¶8. As Mr. Moss is appealing the denial
of his first motion for correction of jail-time credit, his
appeal is not barred by res judicata and we evaluate his
appeal on its merits.
"'"We review the trial court's
determination as to the amount of credit to which [a
defendant] is entitled under the 'clearly and
convincingly' contrary to law standard."'"
State v. Garver, 11th Dist. Lake No. 2016-L-069,
2017-Ohio-1107, ¶8, quoting State v. Moore,
11th Dist. Ashtabula No. 2015-A-0069, 2016-Ohio-3510,
¶15. An appellate court must modify or vacate sentences
if it finds by clear and convincing evidence the record does
not support trial court's findings. State v.
Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶22.
Mr. Moss cites State v. Fugate, 117 Ohio St.3d 261,
2008-Ohio-856, in support of his claim. In Fugate,
the Supreme Court of Ohio found that the defendant was
entitled to have his jail-time credit applied to his
concurrently-run sentences. Mr. Moss seeks for the same rule
to be applied to consecutive sentences, such as his, and asks
that all the jail-time credit he was given be applied to each
count. However, as the Court in Fugate expressly
states, different rules apply to concurrent and consecutive
prison terms. Id., at ¶20. Moreover, as we
previously held, "when offenders are serving consecutive
terms, jail-time credit is to be applied only once."
State v. Lane, 11th Dist. Lake No. 2017-L-046,
Thus, to the extent Mr. Moss seeks the application of his
jail-time credit to each consecutively run count, ...