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State v. Moss

Court of Appeals of Ohio, Eleventh District, Ashtabula

June 3, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
DAVID V. MOSS, Defendant-Appellant.

          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).

          David V. Moss, pro se, (Defendant-Appellant).

          OPINION

          CYNTHIA WESTCOTT RICE, J.

         {¶1} 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 as modified.

         {¶2} 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.

         {¶3} 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 1445, 2017-Ohio-7843.

         {¶4} 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 review:

         {¶5} "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 his sentence."

         {¶6} 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.

         {¶7} 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.

         {¶8} "'"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.

         {¶9} 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, 2017-Ohio-9335, ¶13.

         {¶10} Thus, to the extent Mr. Moss seeks the application of his jail-time credit to each consecutively run count, ...


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