STATE OF OHIO, ) ) CASE NO. 14 MO 7 PLAINTIFF-APPELLEE, ) ) VS. ) O P I N I O N ) DOWELL NORRIS, ) ) DEFENDANT-APPELLANT. )
14 MO 7
STATE OF OHIO, MONROE COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
December 29, 2014
[Cite as State v. Norris, 2014-Ohio-5833.]
Hоn. Joseph J. Vukovich, Hon. Gene Donofrio, Hon. Mary DeGenaro
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney James Peters Prosecuting Attorney 101 North Main Street, Room 15 Woodsfield, Ohio 43793
For Defendant-Appellant: Dowell Norris, Pro se #A537-122 Noble Correctional Institution 15708 McCоnnelsville Road Caldwell, Ohio 43724
{¶1} Defendant-appellant Dowell Norris appeals the decision of the Monroe County Common Pleas Court denying his motion for additional jail time credit wherein he argued that he was incarcerated in West Virginia due to a warrant issued by Monroe County and that he should have bеen credited with the 89 days that he said he spent in West Virginia prior to being transferred to Ohio. Contrary to appellant‘s argument, the trial court cannot use a nunc pro tunc entry to add days that were not initially considered by the court as such situation is not a clerical error or a mechanical oversight. And regardless of the fact that the record belies appellant‘s claim that he was held in West Virginia solely on the Ohio warrant, the issue is res judicata as appellant filed a prior motion seeking credit for these same days that was denied but not appealed. In accordance, thе judgment of the trial court is affirmed.
STATEMENT OF THE CASE
{¶2} Appellant was indicted in October of 2005 with two counts of illegal assembly or possession of chemicals for the manufacture of drugs. (A new indictment was filed in April of 2006, the cases were consolidated, and the new indictment replaced the first, which is the reason that various filings have two trial court case numbers.) Appellant was convicted of the two third-degree felony counts after a jury trial. (One of the counts originally carried a school specification, but the jury failed to circle a choice on that specification.)
{¶3} In a June 26, 2006 entry, the court sentenced appellant to a maximum sentence of five years on each count to run consecutively. He was provided 126 days of jail time credit, representing the time between his local incarceration until the sentencing hearing. His conviction and sentence were upheld by this court on apрeal. State v. Norris, 7th Dist. No. 06MO5, 2007-Ohio-6915. Jail time credit was not discussed. The denial of an untimely post-conviction petition raising a merger argument was upheld on appeal as well. State v. Norris, 7th Dist. No. 11MO4, 2013-Ohio-866.
{¶4} Nearly eight years after sentencing, appellant filed a motion for additional jail time credit in the amount of 89 days, without asking for a hearing. In
{¶5} On April 7, 2014, the trial court entered an order denying the motion for jail time credit, stating that the sentence imposed was appropriate. Appellant did not appeal this order.
{¶6} Thereafter, he filed a May 19, 2014 motion for a nunc pro tunc entry, asking the court to correct a clerical mistake in the sentencing order concerning jail time credit. He repeated his request for jail timе credit for the 89 days spent in West Virginia after his arrest. He again attached the November 21 waiver of extradition. He noted that this court‘s precedent in Neville holds that a defendant is entitled to jail time credit for time awaiting extradition where he is only being held in the other state due to the Ohio warrant in the case under consideration. See State v. Neville, 7th Dist. No. 03BE68, 2004-Ohio-6840.
{¶7} Appellant posited that the matter did not involve a legal judgment and thus could be corrected nunc pro tunc as a clerical error or error arising from oversight or omission under
{¶8} On May 27, 2014, the trial court denied appellant‘s motion. Appellant filed a notice of appeal on June 6, 2014 from the May 27, 2014 order.
ASSIGNMENT OF ERROR
{¶10} “JAIL TIME CREDIT MUST BE GIVEN TO A CRIMINAL DEFENDANT WHO IS EXTRADITED FROM WEST VIRGINIA FOR THE TIME PERIOD THE DEFENDANT SPENT IN WEST VIRGINIA CUSTODY.”
{¶11} Appellant points to this court‘s decision in Neville that days awaiting extradition must be credited where the arrest arose from the case on which he was sentenced. In that case, we stated that if a flеeing felon is held in another state solely on the pending Ohio charge, then the felon is entitled to credit for the time served. Neville, 7th Dist. No. 03BE68 at ¶ 25-26 (finding that the sole reason for Neville‘s stay in Pennsylvania was for failing to appear at his Ohio sentencing and suggesting that the result may be different if a defendant is arrested in another statе for violating their law and is held for that offense and an Ohio warrant).
{¶12} Appellant attaches an exhibit to his brief that is his West Virginia signed statement acknowledging the accusation that he was a fugitive from justice from Monroe County, Ohio and that the possible penalty was extradition to the State of Ohio. He uses this to confirm his statement that he was incarcerated in West Virginia on November 16, 2005; as his later waiver of extradition, which he provided to the trial court, was dated November 21, 2005. And, he may believe that the November 16 document shows that he was solely arrested due to the Ohio case as he claims that he was arrested in West Virginia on a warrant issued by Monroe County in this case.
{¶13} Notably, this document was not provided to the trial court to support his jail time credit argument. Additionally, it does not establish that he was solely arrested due to the Ohio case. And, he did not specifically explain to the trial court his current allegation that he was held in West Virginia only after he waived extradition and made himself available to the State of Ohio.1
{¶15} Appellant posits that by mistake or oversight the trial court failed to credit him with the 89 days he spent in West Virginia awaiting transportation to Ohio and states that the issue should have been corrected as a clerical еrror under
CLERICAL MISTAKE
{¶16} Appellant entitled the motion which resulted in this appeal as a motion for a nunc pro tunc entry to correct a clerical mistake.
{¶17} Although a court has “inherent authority to correct clerical errors in judgment entries so the record speaks the truth,” a nunc pro tunc entry is “limited in proper use to reflecting what the court actually decided, not what the court might or
{¶18} Here, the court granted 126 days of jail time credit at sentencing and then issued an entry accordingly. The court did not actually decide that appellant would receive jail time credit for time incarcerated in West Virginia and then by oversight fail to include that time in the sentencing entry. The issue was thus not mechanical in nature, nor was it an issue of mathematics. Thus, any mistakes were not clerical, and a nunc pro tunc entry was not available.
{¶19} In the past, some courts regularly held that clerical or mathematical jail time credit issues could be remedied by the trial court after sentencing but legal determinations could not as they were res judicata where they could have been raised at sentencing and in the direct appeal therefrom. Effective on September 28, 2012, a statutory amendment рrovides for a sentencing court‘s continuing jurisdiction on the matter of jail time credit errors. See
CONTINUING JURISDICTION
{¶20}
[T]he sentencing court retains continuing jurisdiction to correct any error not previously raised at sentencing in making a determination under division (B)(2)(g)(i) of this section. The offender may, at any time after sentencing, file a motion in the sentencing court to correct any error madе in making a determination under division (B)(2)(g)(i) of this section, and the court may in its discretion grant or deny that motion. If the court changes the number of days in its determination or redetermination, the court shall cause the entry granting that change to be delivered to the department of rehabilitation and correction without delay.
{¶21} The limitations on filing a motion for a new trial under
{¶22} The statute requirеs the matter to be one not previously raised at sentencing. In speaking of time served in jail pending sentencing, appellant‘s counsel mentioned at sentencing that he was arrested in November of 2005. (Sent.Tr. 6). However, the court used the date of Ohio incarceration. (Sent.Tr. 12-13). As aforementioned, аppellant appealed from the sentencing entry, but he did not raise this issue. State v. Norris, 7th Dist. No. 06MO5, 2007-Ohio-6915. In any event, appellant does not maintain his argument regarding this statute on appeal, and there is an additional res judicata issue preventing our review of the merits of the trial court‘s refusal to grant jail time credit herе.
RES JUDICATA
{¶24} Appellant already asked for jail time credit in a prior motion filed on March 31, 2014. Notably, that motion was filed well after the September 28, 2012 effective date of the statutory provision permitting the trial court to exercise continuing jurisdiction to address such a motion on matters not previously raised at sentencing. And, the trial court then denied him jail time credit on April 7, 2014. Appellant failed to appeal that judgment entry. Instead, he again asked the triаl court for jail time credit.
{¶25} However, the trial court has already ruled that its sentencing order was appropriate. That decision is now res judicata and constitutes the law of the case on the topic of whether appellant was entitled to an additional 89 days for a West Virginia incarceration alleged2 to have arisen out of the offenses in this case. A defendant cannot keep filing motions seeking the same additional jail time credit sought in a prior motion and then only appeal the last of such motions.
{¶26} In conclusion, a nunc pro tunc decision was unavailable here as the trial court was alleged to have made a legal rather than a clerical error. This issue could have been raised in the appeal taken from the original sentence, and there was mention at sentencing of appellant‘s jail time prior to his local incarceratiоn. And
Donofrio, J., concurs.
DeGenaro, P.J., concurs.