[Cite as State v. McKinney,

.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 12 MA 163 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) JERMAINE McKINNEY ) ) DEFENDANT-APPELLANT )

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

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503

For Defendant-Appellant: Jermaine McKinney, Pro se #A520-677 Mansfield Correctional Institution P.O. Box 788 Mansfield, Ohio 44901

JUDGES:

Hon. Cheryl L. Waite Hon. Joseph J. Vukovich Hon. Mary DeGenaro Dated: September 30, 2013 [Cite as State v. McKinney,

.] 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,

,

,

, 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.”

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 -2-

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 -3-

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,

, ¶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. -4-

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 DUE PROCESS AND EQUAL PROTECTION OF THE LAW

AS GUARANTEED BY THE 14TH AMENDMENT TO THE UNITED

STATES CONSTITUTION

{¶7} Appellant argues that his sentence in this matter was ordered to be

served concurrently with the sentence in Trumbull County Case No. 05-CR-948.

Appellant contends that, under State v. Fugate, a defendant is entitled to have jail-

time credit applied to all related concurrent sentences. Fugate held 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.”

at syllabus. Appellant interprets Fugate to mean that all the time he spent

in jail or prison, from the time he was arrested on January 1, 2006, until the day he

was sentenced on April 16, 2009, should be applied to his sentence in this case. -5-

Appellant believes this amounts to 1,200 days. The trial court awarded him 263

days. Thus, Appellant concludes that he is owed the remaining 937 days.

{¶8} Appellee argues that the issue under review in this appeal is res

judicata because it could have been raised in the direct appeal of his conviction and

sentence. The doctrine of res judicata establishes that “a final judgment of conviction

bars a convicted defendant who was represented by counsel from raising and

litigating in any proceeding except an appeal from that judgment, any defense or any

claimed lack of due process that was raised or could have been raised by the

defendant at the trial, which resulted in that judgment of conviction, or on an appeal

from that judgment.” (Emphasis deleted.) State v. Perry,

,

(1967), paragraph nine of the syllabus. We have held that “the proper

vehicle for challenging legal errors in the imposition of jail-time credit is via a direct

appeal from the sentencing entry.” State v. Mason, 7th Dist. No.

, 2011-

Ohio-3167, ¶13. Appellant's theory in this appeal is that, pursuant to State v. Fugate,

if it were correctly applied, he should have been awarded 1,200 days of jail-time

credit. Since this is a purely legal argument, Appellant should have raised it on direct

appeal. This issue is now res judicata and cannot be raised in a subsequent appeal.

{¶9} Even if the matter was not res judicata, Appellant's argument is not

persuasive. The issue under review in Fugate was whether jail-time credit that was

awarded in a probation revocation case should also be calculated towards

defendant’s sentence in the corresponding criminal case that prompted the probation

revocation in the first place. In Fugate, the defendant was on community control after

being convicted of receiving stolen property. He was later charged with theft and -6-

burglary. Probation revocation charges were filed in the earlier case because Fugate

committed a crime while serving community control sanctions. He was later

convicted of the theft and burglary charges, and he was sentenced in both cases at

the same time. He was sentenced to 12 months in prison for the community control

violation, with 213 days jail-time credit given. He was sentenced to two years in

prison on the theft and burglary charges, and no jail-time credit was given. The

sentences were ordered to be served concurrently. Fugate at ¶3.

{¶10} The issue in Fugate was whether the 213 days of jail-time credit should

also have been applied in his second case because his prison terms were ordered to

be served concurrently. Fugate was primarily attempting to interpret and correctly

apply R.C. 2967.191, which states that “[t]he department of rehabilitation and

correction shall reduce the stated prison term of a prisoner * * * by the total number of

days that the prisoner was confined for any reason arising out of the offense for

which the prisoner was convicted and sentenced, including confinement in lieu of bail

while awaiting trial * * *.” Id. at ¶12, 22. In Fugate, the defendant was being held in

jail simultaneously awaiting sentencing for both probation revocation and theft and

burglary. Thus, there was no question that he was confined in lieu of bail awaiting

trial on both cases simultaneously.

{¶11} The Fugate Court ruled for the defendant that, pursuant to R.C.

2967.191, the 213 days should have been applied to both cases. Fugate held that:

“When a defendant is sentenced to consecutive terms, the terms of imprisonment are

served one after another. Jail-time credit applied to one prison term gives full credit

that is due, because the credit reduces the entire length of the prison sentence. -7-

However, when a defendant is sentenced to concurrent terms, credit must be applied

against all terms, because the sentences are served simultaneously. If an offender is

sentenced to concurrent terms, applying credit to one term only would, in effect,

negate the credit for time that the offender has been held. To deny such credit would

constitute a violation of the Equal Protection Clause. Therefore we hold 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 ¶22.

{¶12} A number of courts, including this Court, have concluded that Fugate

does not explain how to calculate jail-time credit. Instead, it serves only to explain

how to apply such credit to concurrent or consecutive sentences once it is calculated.

State v. Maynard, 10th Dist. No. 08AP-43,

; State v. Mason, 7th

Dist. No.

,

; State v. Dailey, 3d Dist. No. 8-10-01,

. Fugate did not negate the basic principle that “a defendant is

not entitled to jail-time credit for time incarcerated in another county for unrelated

offenses.” State v. Daughenbaugh, 3d Dist. No. 16-09-05,

.

Further, it is apparent that once Appellant was convicted and sentenced in the

Trumbull County murder case on December 11, 2006, he was no longer being

confined in lieu of bail in the instant case. He was confined in prison due to his

murder conviction. Thus, Appellant was not entitled to anything even remotely

approaching 1,200 days of jail-time credit in this case. At most, he may be entitled to

time from the day of arrest (January 1, 2006) until the date he began serving his

prison term for murder (December 11, 2006). Appellant presents no reason to -8-

question the trial court’s calculation of 263 days of jail-time credit, and we will

presume that the calculation was correct.

{¶13} Whether under the principle of res judicata, or because Appellant

misinterprets the Fugate case on which he relies in support of this appeal, Appellant's

assignment of error must be overruled. Appellant should have raised the legal

argument regarding his jail-time credit in a direct appeal after he was sentenced in

2009, but he did not. Thus, the matter is res judicata. Additionally, Fugate does not

explain how to calculate jail-time credit and is inapplicable to Appellant's situation.

Fugate explains only the application of jail-time credit once it is calculated, and it is

clear that Appellant does not correctly interpret how to calculate jail-time credit.

There is no reversible error in this case, and the judgment of the trial court is

affirmed.

Vukovich, J., concurs.

DeGenaro, P.J., concurs in judgment only.