[Cite as State v. Colbert, 2017-Ohio-8559.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 

 vs. 

AMARIYA COLBERT, 

 Defendant-Appellant. 

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APPEAL NO. C-160866 

TRIAL NO. B-1407201 

O P I N I O N.

 

Criminal Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Affirmed as Modified 

Date of Judgment Entry on Appeal: November 15, 2017 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee, 

Office of the Ohio Public Defender, and Timothy B. Hackett, Assistant State Public 

Defender, for Defendant-Appellant. 
OHIO FIRST DISTRICT COURT OF APPEALS 

2

Per Curiam. 

{¶1} Defendant-appellant Amariya Colbert appeals the Hamilton County 

Common Pleas Court’s judgment overruling his “Motion for Recalculation of Jail 

Time Credit.” Because the common pleas court had no jurisdiction to entertain 

Colbert’s motion, we affirm the court’s judgment as modified to dismiss the motion. 

{¶2} In 2015, Colbert was convicted upon guilty pleas to aggravated robbery 

and having weapons while under a disability. The trial court imposed prison 

sentences totaling seven years. And the court credited against those prison terms the 

132 days between Colbert’s arrest on the indictment leading to his convictions and 

the entry of the judgment of conviction. Colbert did not appeal his convictions. 

{¶3} In 2016, Colbert filed with the common pleas court his “Motion for 

Recalculation of Jail Time Credit.” He argued that R.C. 2967.191 required the trial 

court to additionally credit him with the 63 days he spent in juvenile detention before 

his arrest on his indictment. In this appeal, he advances a single assignment of error 

challenging the common pleas court’s judgment overruling that motion. 

{¶4} In 2012, the General Assembly amended R.C. 2967.191 and 2929.19 to 

clarify the law concerning jail-time credit. R.C. 2967.191 tasks the department of 

rehabilitation and correction with reducing a prisoner’s prison term or paroleeligibility date “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 a juvenile facility.” For purposes of the prison-term 

reduction required by R.C. 2967.191, R.C. 2929.19(B)(2)(g)(i) imposes upon the trial 

court the duty to “determine,” as of the date of the offender’s conviction, “the 

number of days that the offender has been confined for any reason arising out of the 

offense for which the offender is being sentenced” and to “notify the offender of, and 

include in the sentencing entry” its jail-time-credit determination. 

{¶5} Before the 2012 amendments, an offender could challenge the trial 

court’s jail-time-credit determination on direct appeal, in a properly constituted 
OHIO FIRST DISTRICT COURT OF APPEALS 

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motion under Crim.R. 36 to “correct” a “clerical mistake[ ],” or in a petition under 

R.C. 2953.21 et seq. for postconviction relief. See Heddleston v. Mack, 84 Ohio St.3d 

213, 213, 702 N.E.2d 1198 (1988); State v. Weaver, 1st Dist. Hamilton No. C-050923, 

2006-Ohio-5072, ¶ 12. Under the 2012 amendments, an error in determining jailtime credit does not affect the conviction and may not be challenged in a new-trial 

motion or a postconviction petition. R.C. 2929.19(B)(2)(g)(iii) and (iv). But an 

erroneous jail-time-credit determination may still be challenged on direct appeal. 

And under Crim.R. 36, a trial court may still, at any time, enter judgment nunc pro 

tunc to the date of the original conviction, correcting a miscalculation, but not an 

error of law, in determining jail-time credit. And a trial court may “correct” an error, 

whether of law or fact, under the jurisdiction conferred, and pursuant to the 

procedure provided, by R.C. 2929.19(B)(2)(g)(iii). That statute provides 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. 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. 

An entry overruling an R.C. 2929.19(B)(2)(g)(iii) motion to correct jail-time credit is 

a final, appealable order. State v. Thompson, 147 Ohio St.3d 29, 2016-Ohio-2769, 59 

N.E.3d 1264, ¶ 13. 

{¶6} Colbert did not appeal his 2015 convictions and thus did not challenge 

on direct appeal the trial court’s determination of his jail-time credit. And his jailtime credit was not subject to correction under Crim.R. 36, when he sought in his 
OHIO FIRST DISTRICT COURT OF APPEALS 

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2016 motion correction of an alleged error of law in failing to credit him, as required 

by R.C. 2967.191, with the days spent in juvenile detention before his arrest on his 

indictment. 

{¶7} Nor did R.C. 2929.19(B)(2)(g)(iii) confer upon the common pleas court 

jurisdiction to correct the alleged error in Colbert’s jail-time credit, in the absence of 

some demonstration that the error had not been raised during his sentencing hearing. 

The statute grants jurisdiction to correct an error in determining jail-time credit only 

when that error was “not previously raised at sentencing.” Thus, the common pleas 

court’s jurisdiction to grant Colbert the relief sought in his motion depended upon 

matters that transpired at his sentencing hearing. But the common pleas court did 

not have before it a transcript of the proceedings at his sentencing hearing, because 

Colbert had not appealed his convictions and did not request that a sentencing 

transcript be filed with the common pleas court for its decision on his motion. See 

State ex rel. Partee v. McMahon, 175 Ohio St. 243, 248, 193 N.E.2d 266 (1963); State 

v. Hawkins, 1st Dist. Hamilton No. C-74425, 1975 WL 181869 (July 7, 1975) (holding 

that an indigent offender is entitled to a transcript of the proceedings leading to his 

conviction, at the state’s expense, if he has pending either a direct appeal or a 

postconviction proceeding). And the transcript of proceedings filed after he had 

appealed the overruling of his motion is not properly before us, because we may not 

add to the record, and then decide this appeal based on, matter that was not before the 

common pleas court in ruling on the motion. See State v. Ishmail, 54 Ohio St.2d 

402, 405-406, 377 N.E.2d 500 (1978), paragraph two of the syllabus (holding that 

when a trial court denies a postconviction petition seeking to withdraw guilty pleas 

without first considering a plea-hearing transcript, the appeals court cannot add that 

transcript to the record before it and then decide the appeal on the basis of matter 

disclosed by the transcript). Accord State v. Tekulve, 188 Ohio App.3d 792, 2010-

Ohio-3604, 936 N.E.2d 1030 (1st Dist.2010). 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶8} The common pleas court cannot be said to have erred in declining to 

afford Colbert the relief sought in his “Motion for Recalculation of Jail Time Credit,” 

when he failed to invoke the jurisdiction under R.C. 2929.19(B)(2)(g)(iii) to correct 

jail-time credit by requesting that a transcript of proceedings demonstrating that the 

error had not been raised at sentencing be filed with the common pleas court for its 

decision on his motion. Because the common pleas court had no jurisdiction to grant 

that relief, the motion was subject to dismissal. Accordingly, upon the authority of 

App.R. 12(A)(1)(a), we modify the judgment appealed from to reflect the dismissal of 

the motion. And we affirm the judgment as modified. 

Judgment affirmed as modified. 

MOCK, P.J., CUNNINGHAM and MYERS, JJ.

Please note: 

The court has recorded its entry on the date of the release of this opinion.