State v. Gibson

120 N.E.3d 870

2019 Ohio 383

STATE of Ohio, Plaintiff-Appellee,

v.Daniel R. GIBSON, Defendant-Appellant.

No. 17AP-200

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on February 7, 2019

DECISION EN BANC

SADLER, J.

{¶ 1} This case arises from an appeal by defendant-appellant, Daniel R. Gibson, from a decision of the Franklin County Court of Common Pleas denying his motion to correct an alleged error in jail-time credit filed pursuant to R.C. 2929.19(B)(2)(g)(iii). In his appeal, Gibson set forth a single assignment of error as follows:

The trial court abused its discretion and denied Daniel Gibson Due Process and Equal Protection of the law when it failed to consider the merits of his motion for jail-time credit, in violation of the Fifth and Fourteenth Amendments to the United States Constitution, and R.C. 2929.19(B)(2)(g)(iii).

{¶ 2} In State v. Gibson , 10th Dist., 2017-Ohio-7254, 96 N.E.3d 919 (" Gibson I "), this court, in a 2-to-1 decision, held that "[b]ecause Gibson's motion did state facts, amounting to an assertion that he had not previously raised in his claim regarding jail-time credit, the trial court erred in deciding that Gibson's motion was not filed pursuant to R.C. 2929.19(B)(2)(g)(iii)." Id. at ¶ 1. Accordingly, the majority in Gibson I sustained Gibson's assignment of error, reversed the judgment of the trial court, and remanded the matter for further proceedings. Id. at ¶ 15. Gibson I , therefore, stands for the proposition that a mere unsworn allegation by the movant that the alleged error in jail-time credit was not raised at sentencing is sufficient to establish the sentencing court's continuing jurisdiction.

{¶ 3} On August 28, 2017, plaintiff-appellee, State of Ohio, filed both an application to certify a conflict between the judgment in Gibson I and the judgments of the of the Fourth District Court of Appeals in State v. Johnson , 4th Dist. No. 16CA26, 2017-Ohio-4213, 2017 WL 2537581, and the Eleventh District Court of Appeals in State v. Guiterres , 11th Dist. No. 2015-T-0116, 2016-Ohio-5572, 2016 WL 4586262, and an application for en banc consideration based on a conflict between the judgment in Gibson I and the judgment of this court in State v. Smith , 10th Dist. No. 15AP-209, 2015-Ohio-4465, 2015 WL 6459961. In a 2-to-1 decision, this court denied the state's application to certify a conflict. State v. Gibson , 10th Dist., 2017-Ohio-8329, 99 N.E.3d 948.

{¶ 4} On June 5, 2018, this court issued a journal entry granting the state's August 28, 2017 application for en banc consideration on finding the judgment in Gibson I is in conflict with the judgment of this court in Smith . The issue on which the two cases are in conflict is whether a party moving the sentencing court to correct an alleged error in jail-time credit, pursuant to R.C. 2929.19(B)(2)(g)(iii), has the burden to produce evidence with the motion to establish that the alleged error in jail-time credit was not previously raised at sentencing.

{¶ 5} The case is now before the court en banc for determination. For the reasons that follow, we vacate our decision in Gibson I , overrule Gibson's assignment of error, and affirm the judgment of the Franklin County Court of Common Pleas.

I. FACTS AND PROCEDURAL HISTORY

{¶ 6} On November 3, 2015, a Franklin County Grand Jury indicted Gibson for two counts of robbery, one count of kidnapping, one count of attempted rape, and one count of gross sexual imposition. On May 17, 2016, Gibson pleaded guilty to one count of fourth-degree felony aggravated assault in exchange for dismissal of the other charges.

{¶ 7} The trial court held a sentencing hearing on October 25, 2016. On October 31, 2016, the trial court sentenced Gibson to 16 months in prison. In compliance with R.C. 2929.19(B)(2)(g)(i), the trial court determined Gibson had been confined for a period of 49 days arising out of the offense for which he was being sentenced and included in the sentencing entry 49 days of jail-time credit. Gibson did not file a direct appeal from his conviction and sentence.

{¶ 8} On December 15, 2016, Gibson filed a motion, pursuant to R.C. 2929.19(B)(2)(g)(iii), seeking an additional 294 days of jail-time credit. Using a fill-in-the-blank form, Gibson alleged that he discovered the trial court had failed to credit him with the additional jail time after he was "delivered into state custody" on November 4, 2016. (Dec. 15, 2016 Mot. for Jail-Time Credit at 1.) The motion set forth specific dates during which Gibson was allegedly confined arising from the offense for which he pleaded guilty but did not provide any specifics as to when he actually discovered the alleged error. Gibson did not submit a transcript of the sentencing hearing or any other evidence in support of the motion.

{¶ 9} The state opposed the motion arguing, among other things, R.C. 2929.19(B)(2)(g)(iii)"does not create continuing jurisdiction to address all claims of jail-time credit error. Rather, only purported errors ‘not previously raised at sentencing’ fall within a court's continuing jurisdiction. Defendant's motion fails to give any indication that the issue he now seeks to raise was ‘not previously raised at sentencing.’ " (Dec. 22, 2016 Memo. Contra at 7.) The state noted because the trial court included 49 days of jail-time credit in the sentencing entry, "[i]t is very likely that the court and the parties expressly discussed the amount of jail-time credit to be awarded." (Memo. Contra at 7.)

{¶ 10} On February 17, 2017, the trial court denied Gibson's motion. The trial court held that it did not have jurisdiction to hear and determine Gibson's motion because R.C. 2929.19(B)(2)(g)(iii) confers continuing jurisdiction on the sentencing court to correct only those errors in jail-time credit that were " ‘not previously raised at sentencing’ " and concluded that Gibson "has not alleged that any such error failed to be raised at sentencing." (Feb. 17, 2017 Decision at 2.)¹ In the alternative, the trial court determined that res judicata barred Gibson's motion.

{¶ 11} Gibson appealed to this court from the judgment of the trial court. On August 17, 2017, this court issued its 2-to-1 decision in Gibson I . In reversing the trial court judgment denying Gibson's motion for jail-time credit, the majority held that "[b]ecause the face of Gibson's motion for jail-time credit contains the assertion that he did not learn of the alleged error in jail-time credit until after sentencing, and no material in the record contradicts that assertion, it was error for the trial court to have concluded that R.C. 2929.19(B)(2)(g)(iii) was inapplicable." (Emphasis added.) Gibson I at ¶ 15. The dissenting opinion maintained the rule of law adopted by this court in Smith and by other appellate districts that had addressed the continuing jurisdiction of a sentencing court under R.C. 2929.19(B)(2)(g)(iii) is that the moving party bears the burden of producing evidence with the motion to support a finding that the alleged error in jail-time credit was not previously raised at sentencing. The dissenting opinion explained that Smith required the moving party, not the state, to provide an evidentiary basis for the sentencing court to determine whether it retained jurisdiction under R.C. 2929.19(B)(2)(g)(iii). The dissent concluded "[b]ecause appellant did not file a transcript of the sentencing hearing or any other evidence establishing that the jail-time credit issue was not raised at sentencing, the trial court was without jurisdiction to consider the motion." (Emphasis added.) Gibson I at ¶ 24.

II. DECISION OF THE COURT EN BANC

{¶ 12} Our majority decision in Gibson I conflicts with our prior decision in Smith on the threshold issue of who bears the burden of demonstrating the applicability of R.C. 2929.19(B)(2)(g)(iii), and because our resolution of the conflict disposes of this appeal, we will limit our discussion to the specific issue on which the two cases conflict.

{¶ 13} R.C. 2929.19(B)(2)(g)(iii), as amended in 2012, provides, in relevant part, as follows:

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.

(Emphasis added.)²

{¶ 14} Pursuant to R.C. 2929.19(B)(2)(g)(iii), it must be proven that the alleged error in jail-time credit was not previously raised at sentencing in order to establish the trial court's continuing jurisdiction. Johnson at ¶ 20, citing Smith at ¶ 10.³ In Smith , this court addressed the movant's burden of going forward on a motion for jail-time credit, pursuant to R.C. 2929.19(B)(2)(g)(iii), as follows:

Appellant's motion requested additional jail-time credit. He claimed a legal entitlement to certain days and not a mathematical or clerical error. As the movant, it was appellant's burden to demonstrate that R.C. 2929.19(B)(2)(g)(iii) applies to preclude the application of res judicata. Therefore, it was appellant's burden to establish that the alleged error was not addressed at sentencing. R.C. 2929.19(B)(2)(g)(iii). Appellant failed to demonstrate that the issue was not raised at sentencing. Therefore, appellant failed to meet his burden . We cannot conclude that R.C. 2929.19(B)(2)(g)(iii) applies to appellant's motion.

(Emphasis added.) Id. at ¶ 10.

{¶ 15} The rule of law adopted by this court in Smith is that the movant, not the state, has the threshold burden to provide an evidentiary basis for the sentencing court to determine whether it retained jurisdiction under R.C. 2929.19(B)(2)(g)(iii). Accordingly, Smith holds that the moving party bears the burden of producing evidence with the motion to establish the alleged error in jail-time credit was not...