State v. VerdiState v. Verdi
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Kevin J. Baxter, Erie County Prosecuting Attorney, Mary Ann Barylski and Frank Romeo Zeleznikar, Assistant Prosecuting Attorneys, for appellee.
Barry W. Wilford and Sarah M. Schregardus, for appellant.
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YARBROUGH, J.
I. Introduction
{¶ 1} Appellant, Mark Verdi, appeals the judgment of the Erie County Court of Common Pleas, denying his motion for custody credit. For the following reasons, we affirm.
{¶ 2} The relevant facts are undisputed. On March 3, 1989, appellant was indicted in the U.S. District Court for the Northern District of Ohio on two counts of possession of a firearm, and one count of conspiracy, stemming from appellant’s use of a firearm during the commission of various crimes including aggravated murder. He was arrested four days later and placed in federal custody at the Lucas County Jail.
{¶ 3} One week after being indicted on the federal charges, appellant was indicted by the Erie County Grand Jury on one count of aggravated murder in violation of
{¶ 4} On March 20, 1989, the Erie County prosecuting attorney certified that appellant was notified by the United States Marshal of the pending detainer and untried indictment. The arrest warrant issued pursuant to the Erie County indictment was subsequently executed on May 12, 1989.
{¶ 5} A jury trial commenced with regard to the federal charges on January 28, 1991. Ultimately, appellant was found guilty on all counts in the federal indictment and ordered to serve 180 months in federal prison.
{¶ 7} On February 11, 2013, appellant filed a motion for custody credit with the trial court, arguing that he was entitled to 2,346 days of jail-time credit under
B. Assignments of Error
{¶ 8} On appeal, appellant asserts the following assignments of error:
Assignment of Error I: THE JUDGMENT OF THE COURT BELOW DENYING CUSTODY CREDIT IS CONTRARY TO LAW AND SHOULD BE REVERSED AND REMANDED.
Assignment of Error II: THE COURT BELOW ERRED BY DENYING A HEARING UPON THE MOTION FOR CUSTODY CREDIT, AND THE JUDGMENT OF THE COURT SHOULD BE REVERSED AND REMANDED FOR HEARING.
II. Analysis
{¶ 9} In his first assignment of error, appellant argues that the trial court erred in denying his motion for custody credit. Appellant contends that he was entitled to receive credit for 2,346 days he served while he was “physically in the Lucas County jail in the legal custody of the U.S. Marshall attendant to related criminal proceedings in federal district court, and thereafter in the legal custody of the U.S. Department of Justice’s Bureau of Prisons pursuant to the sentence imposed by the federal district court in those related proceedings.” While he recognizes that his confinement was directly attributable to his conviction for the federal charges, appellant argues that he was entitled to receive jail-time credit under
{¶ 10} Appellee argues that Fugate is inapplicable in this case and, further, that appellant’s motion, which was filed more than a decade after the underlying sentence was
{¶ 11} This court has previously determined that a motion to correct jail-time credit is an alternative to raising the issue on direct appeal or in postconviction relief. State v. McLain, 6th Dist. Lucas No. L-07-1164, 2008-Ohio-481, ¶ 11, citing Heddleston v. Mack, 84 Ohio St.3d 213, 702 N.E.2d 1198 (1998). However, this remedy is limited to cases in which the trial court’s alleged error involves a clerical mistake rather than a substantive claim. State v. Newman, 6th Dist. Wood No. WD-07-083, 2009-Ohio-2935, ¶ 10. Indeed, we have held that “[f]ailure to timely raise substantive jail time credit claims results in the issue being barred from further consideration by the doctrine of res judicata.” Id. at ¶ 11.
{¶ 12} Here, appellant’s motion is premised upon his contention that he was entitled to additional credit for time served while he was held in custody under the federal charges. This was not a clerical mistake. Instead, appellant’s claim is a substantive claim, “which must be brought to the trial court’s attention before sentencing or raised on direct appeal.” (Emphasis added.) McLain at ¶ 12. Since appellant’s claim is substantive, his appeal is barred by res judicata. Id.
{¶ 13} Nonetheless, appellant argues that his appeal is not barred by res judicata in light of a recent amendment to
The 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 made 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. Sections 2931.15 and2953.21 of the Revised Code do not apply to a motion made under this section.
{¶ 14} Referencing
{¶ 15} In light of the foregoing, we conclude that principles of res judicata bar appellant’s claim for additional jail-time credit. Accordingly, appellant’s first assignment of error is not well-taken.
{¶ 16} In his second assignment of error, appellant argues that the trial court erred in denying his motion without first holding a hearing on the matter. Citing
{¶ 18} Accordingly, appellant’s second assignment of error is not well-taken.
III. Conclusion
{¶ 19} For the foregoing reasons, the judgment of the Erie County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
Mark L. Pietrykowski, J.
JUDGE
Stephen A. Yarbrough, J.
JUDGE
James D. Jensen, J.
JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.