[Cite as State v. Gibson, 2019-Ohio-383.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

 No. 17AP-200 

v. : (C.P.C. No. 15CR-5417)

Daniel R. Gibson, : (ACCELERATED CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N E N B A N C 

Rendered on February 7, 2019 

 

Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for 

appellee. 

Tim Young, Ohio Public Defender, and Terrence K. Scott, for 

appellant. 

 

APPEAL from the Franklin County Court of Common Pleas 

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. No. 17AP-200, 2017-Ohio-7254 ("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 
No. 17AP-200 2 

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, and 

the Eleventh District Court of Appeals in State v. Guiterres, 11th Dist. No. 2015-T-0116, 

2016-Ohio-5572, 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. In a 2-to-1 decision, this court denied the state's application 

to certify a conflict. State v. Gibson, 10th Dist. No. 17AP-200, 2017-Ohio-8329. 

{¶ 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 jailtime 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 fourthdegree 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. 
No. 17AP-200 3 

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-theblank 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 jailtime 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. 

 

1 In his motion, Gibson asserted merely that he "learned" an alleged error in jail-time credit had been made 

after he was "delivered into state custody." (Dec. 15, 2016 Mot. at 1.) That is distinctly different from alleging 

a particular error in jail-time credit was not previously raised at sentencing. As a result of the sentencing 
No. 17AP-200 4 

{¶ 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 

 

hearing, Gibson did receive 49 days of jail-time credit. Thus, the sentencing entry provides some evidence 

that jail-time credit was an issue previously raised at the sentencing hearing. 
No. 17AP-200 5 

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 previously raised at sentencing. 

{¶ 16} Smith has been cited with approval for this proposition of law by the Fourth 

District Court of Appeals in Johnson and the Eleventh District Court of Appeals in 

Guiterres. In Johnson, the trial court determined res judicata barred defendant-appellant's 

motion for jail-time credit. Defendant-appellant appealed that decision to the Fourth 

District. The Fourth District ruled as follows: 

 

2 Effective October 20, 2018, the relevant language now appears in R.C. 2929.19(B)(2)(f)(ii). 2018 

Am.Sub.S.B. No. 66. 

3 Because the conflict between Smith and Gibson I concerns the trial court's continuing jurisdiction, there is 

no need for this court to address the trial court's alternative holding that the affirmative defense of res judicata 

barred Gibson's motion. 
No. 17AP-200 6 

Under R.C. 2929.19(B)(2)(g)(iii), a trial court has continuing 

jurisdiction to review any error (mathematical or legal) not 

previously raised at sentencing. State v. Copas, 2015-Ohio5362, 49 N.E.3d 755, ¶ 12. However, a defendant still has the 

burden of establishing that the alleged error was not previously 

raised at sentencing. State v. Smith, 10th Dist. Franklin Nos. 

15AP-209, 15AP-214, 2015-Ohio-4465, ¶ 10. The best way to 

determine whether an alleged error was not previously raised 

at sentencing is to review the transcript from the sentencing 

hearing. 

Here, Johnson failed to attach any evidence establishing that 

his claim was not considered by the trial court at his June 2007 

sentencing hearing. Thus, we cannot conclude that Johnson's 

claim was "not previously raised at sentencing" such that the 

trial court had authority to correct the alleged error. R.C. 

2929.19(B)(2)(g)(iii). Accord State v. Thompson, 147 Ohio St. 

3d 29, 2016-Ohio-2769, 59 N.E.3d 1264, ¶ 12 (sentencing court 

has authority under R.C. 2929.19(B)(2)(g)-(iii) to correct any 

error in determining jail-time credit that was not previously 

raised at sentencing). Therefore, we find that the trial court 

lacked jurisdiction to rule on the merits of Johnson's motion. 

(Emphasis added.) Id. at ¶ 20-21. 

{¶ 17} In Johnson, the Fourth District determined the moving party's failure to 

"attach any evidence establishing that his claim was not considered by the trial court at 

* * * sentencing" deprived the trial court of jurisdiction of the motion. (Emphasis added.) 

Id. at ¶ 21. Thus, Johnson stands for the proposition that for purposes of establishing the 

trial court's continuing jurisdiction of jail-time credit, R.C. 2929.19(B)(2)(g)(iii) requires 

the movant to produce evidence with the motion establishing the alleged error in jail-time 

credit was not "previously raised at sentencing." 

{¶ 18} Similarly, in Guiterres, the Eleventh District Court of Appeals affirmed the 

trial court's denial of defendant-appellant's motion for jail-time credit. The Eleventh 

District reached the following conclusion regarding the movant's burden of production: 

[R.C. 2929.19(B)(2)(g)(iii)] allows a defendant to raise an issue 

regarding his jail-time credit in a post-conviction motion, but 

only when the issue was not considered during the sentencing 

hearing. If an issue was raised and considered at the time the 

trial court rendered its original credit ruling, it cannot be 

asserted again in a motion for additional credit. State v. Smith, 

10th Dist. Franklin Nos. 15AP-209 and 15AP-214, 2015-Ohio-
No. 17AP-200 7 

4465, ¶ 9. Moreover, in moving for an additional credit, the 

defendant has the burden of demonstrating that their 

argument was not previously considered at sentencing. Id. at 

¶ 10. 

The record before this court does not have a transcript of the 

sentencing hearing. As a result, appellant cannot show whether 

the issue of his incarceration in the county jail was raised and 

considered at that time, thereby precluding its consideration in 

a postconviction motion. On this basis alone, the substance of 

appellant's argument cannot be addressed, and his sole 

assignment is without merit. 

(Emphasis added.) Id. at ¶ 15-16. 

{¶ 19} Pursuant to Guiterres, the initial burden of producing evidence that the 

alleged error in jail-time credit was not raised at sentencing is placed squarely on the 

movant. If the Eleventh District believed that the state had the initial burden to produce 

evidence that the alleged error in jail-time credit was previously raised at sentencing, the 

court would not have affirmed the denial of the motion on the basis that "[t]he record before 

this court does not have a transcript of the sentencing hearing." Id. at ¶ 16. If the burden 

of production was on the state, the absence of such evidence would not justify denial of the 

motion for jail-time credit. Accordingly, Guiterres stands for the proposition that for 

purposes of establishing the trial court's continuing jurisdiction of jail-time credit, R.C. 

2929.19(B)(2)(g)(iii) requires the movant to produce evidence with the motion establishing 

the alleged error in jail-time credit was not "previously raised at sentencing." 

{¶ 20} The majority in Gibson I suggested that placing the initial burden on the 

movant to produce evidence to support a finding that the alleged error in jail-time credit 

was not raised at sentencing means that the movant will be required to produce a transcript 

of the sentencing hearing whenever such a motion is filed. Though we agree with the 

Johnson court that the "best way to determine whether an alleged error was not previously 

raised at sentencing is to review the transcript from the sentencing hearing," there is 

nothing in the Smith decision, or the dissent in Gibson I, that dictates the quality or quantity 

of evidence that the moving party is required to produce in order to establish the sentencing 

court's continuing jurisdiction. Johnson at ¶ 20. That issue was not before the court in 
No. 17AP-200 8 

Smith because the moving party produced no evidence of any kind in support of the 

motion.4

{¶ 21} The same is true in this case as Gibson submitted no evidentiary materials of 

any kind in support of his R.C. 2929.19(B)(2)(g)(iii) motion for jail-time credit. Gibson 

relied exclusively on his unsworn personal assertion that he did not learn of the alleged 

error in jail-time credit until after sentencing. This court, in Smith, determined that a party 

moving the trial court to correct an error in jail-time credit, pursuant to R.C. 

2929.19(B)(2)(g)(iii), must submit evidence with the motion to establish the alleged error 

in jail-time credit was not raised at sentencing. 

{¶ 22} We acknowledge there may be instances where a record itself contains 

evidence to support a finding that the alleged error in jail-time credit was not raised at 

sentencing. For example, in State v. Coyle, 2d Dist. No. 23450, 2010-Ohio-2130, a case 

decided under prior law, the appellate court found that res judicata did not bar movant's 

motion for additional jail-time credit because the trial court "omitted any finding" as to the 

number of days of jail-time credit in its entry. Id. at ¶ 10. In the judgment of conviction 

and sentence in that case, there was a blank space where the court was to enter the amount 

of time that defendant was to receive for confinement credit. Id. Thus, the judgment entry 

of conviction and sentence in Coyle evidenced the fact that the issue of jail-time credit was 

not raised at sentencing. The Second District Court of Appeals in Coyle cautioned, however, 

that "[h]ad the court entered '0' or 'none' before the word 'days,' then Defendant's current 

claim would be barred by res judicata." Id. See also State v. Smiley, 10th Dist. No. 11AP266, 2012-Ohio-4126, ¶ 13, distinguishing Coyle. 

{¶ 23} By contrast, here, the trial court made a finding, pursuant to R.C. 

2929.19(B)(2)(g)(i), that Gibson had been confined for a period of 49 days arising out of 

the offense for which he was being sentenced and included 49 days of jail-time credit in its 

sentencing entry. Thus, the sentencing entry in this case shows there were issues of jailtime credit raised and determined at sentencing. Gibson did not file a direct appeal. 

Therefore, the judgment of conviction and sentence in Gibson's case is final. We do not 

 

4 Contrary to the assertions in the dissent, Smith does not require the movant to submit a transcript of the 

sentencing hearing in order to establish that the alleged error in jail-time credit was not raised at sentencing. 
No. 17AP-200 9 

perceive any violation of Gibson's due process rights in requiring him to produce some 

evidence with his motion to correct jail-time credit to establish the sentencing court's 

continuing jurisdiction to alter or amend a judgment of conviction and sentence that is 

otherwise final. 

{¶ 24} The quality and quantity of proof required to establish the trial court's 

continuing jurisdiction over jail-time credit depends on the particular facts and 

circumstances in each case, and it is the trial court that must determine, in the first instance, 

whether the moving party has produced evidence sufficient to support a finding that the 

alleged error in jail-time credit was not raised at sentencing. Consistent with Smith, we hold 

that a movant's unsworn allegation that the alleged error in jail-time credit was not raised 

at sentencing is insufficient to establish the trial court's continuing jurisdiction under R.C. 

2929.19(B)(2)(g)(iii).5

{¶ 25} For the foregoing reasons, we conclude Smith correctly sets forth the 

movant's burden of going forward on a motion for jail-time credit filed pursuant to R.C. 

2929.19(B)(2)(g)(iii). Accordingly, we hold that the movant, not the state, has the threshold 

burden to provide an evidentiary basis for the sentencing court to determine whether it 

retains jurisdiction under R.C. 2929.19(B)(2)(g)(iii). Smith at ¶ 10; Johnson at ¶ 21; 

Guiterres at ¶ 15. It is the party moving the sentencing court to correct an error in jail-time 

credit, pursuant to R.C. 2929.19(B)(2)(g)(iii), who bears the burden of producing evidence 

with the motion to establish the alleged error in jail-time credit was not previously raised 

at sentencing. 

{¶ 26} Because Gibson did not produce any evidence with his motion to support a 

finding that the alleged error in jail-time credit was not raised at sentencing, the trial court 

correctly determined that it did not have jurisdiction to consider the motion. For this 

reason, we overrule Gibson's assignment of error. 

 

5 Even if we were to conclude that Gibson's unsworn assertion that he did not learn of the alleged error in jailtime credit until after he was delivered to the institution amounts to an allegation that the alleged error in jailtime credit was not raised at sentencing, Gibson's unsworn assertion is insufficient to meet his burden in this 

case as it does not constitute evidence. 
No. 17AP-200 10 

III. CONCLUSION 

{¶ 27} Having resolved the conflict between the judgment in Gibson I and Smith, we 

hereby vacate our judgment in Gibson I, overrule Gibson's assignment of error, and affirm 

the judgment of the Franklin County Court of Common Pleas. 

Judgment vacated in Gibson I;

judgment affirmed.

BROWN, J., KLATT, P.J., and LUPER SCHUSTER, J., concur. 

DORRIAN, J., concurs in judgment only. 

BRUNNER, TYACK, and HORTON, JJ., dissent. 

DORRIAN, J., concurring in judgment only. 

{¶ 28} I concur with the majority opinion because I agree (1) the initial burden to 

establish continuing jurisdiction lies with the movant, and (2) appellant did not meet the 

burden. 

BRUNNER, J., dissenting. 

In the first decision in this appeal, State v. Gibson, 10th Dist. No. 17AP-200, 

2017-Ohio-7254 ("Gibson I"), a three-judge panel of this Court reversed the trial court's 

denial of Gibson's jail-time credit correction motion, remanding the matter to the trial 

court. We held in that 2-1 decision: "Because 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, 15. The dissent in Gibson I argued cases in addition to 

State v. Smith, 10th Dist. No. 15AP-209, 2015-Ohio-4465, as well as cases that relied on 

and interpreted Smith, as support for the proposition that a transcript must be provided 

with a motion under R.C. 2929.19(B)(2)(g)(iii) to supply the continuing jurisdiction of the 

trial court to correct jail-time credit errors not addressed at sentencing. Gibson I at ¶ 24-

25.6

 

6 The specific language from the dissent in Gibson I is: 

Because 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. Johnson; Guiterres.
No. 17AP-200 11 

The Eleventh District Court of Appeals has specifically interpreted Smith as 

requiring a transcript to be filed with the motion. State v. Guiterres, 11th Dist. No. 2015-

T-0116, 2016-Ohio-5572, ¶ 15-16 ("Moreover, in moving for additional credit, the defendant 

has the burden of demonstrating that their argument was not previously considered at 

sentencing. [Smith] at ¶ 10. The record before this court does not have a transcript of the 

sentencing hearing. As a result, appellant cannot show whether the issue of his 

incarceration in the county jail was raised and considered at that time, thereby 

precluding its consideration in a postconviction motion. On this basis alone, the substance 

of appellant's argument cannot be addressed, and his sole assignment of error is without 

merit."). (Emphasis added.) See also Gibson I at ¶ 24-25. 

Following the State's motion for en banc review, and based on the dissent's 

arguments that Smith and the two other out-of-district appellate cases require a transcript, 

we determined that our holding in Gibson I was in conflict with our previous holding in 

Smith. We thus granted the State's motion for en banc review,7 finding Gibson I to be in 

conflict with our previous holding in Smith. 

In resolving this conflict on the merits, the majority retains the stance in 

Smith that incarcerated applicants who seek to invoke the trial court's continuing 

jurisdiction to correct jail-time credit under R.C. 2929.19(B)(2)(g)(iii) must supply specific, 

evidentiary material to support their motion. The majority has further stated, 

The quality and quantity of proof required to establish the trial 

court's continuing jurisdiction over jail-time credit depends on 

the particular facts and circumstances in each case, and it is the 

trial court that must determine, in the first instance, whether 

the moving party has produced evidence sufficient to support 

a finding that the alleged error in jail-time credit was not 

raised at sentencing. Consistent with Smith, we hold that a 

movant's unsworn allegation that the alleged error in jail-time 

credit was not raised at sentencing is insufficient to establish 

 

For the foregoing reasons, I would hold that the trial court did not err when 

it denied appellant's motion for jail-time credit. 

Gibson I at ¶ 24-25 

7 The majority now emphasizes that Smith did not per se require a transcript, even though Smith has been 

used time and again in arguing to require it. If this is the case, there is a real question about why en banc 

review was granted in the first instance, since a conflict appears more and more elusive. 
No. 17AP-200 12 

the trial court's continuing jurisdiction under R.C. 

2929.19(B)(2)(g)(iii). 

(Emphasis added.) (Majority Decision ("Gibson II") at ¶ 24.) 

{¶ 29} Accordingly, I respectfully dissent for two distinct reasons: one, that by 

judicially supplying additional obstacles (be it a transcript or an affidavit) to the statutory 

provisions for correction of jail-time credit, we unconstitutionally curtail the rights of 

citizens, whether they be incarcerated now or in the future; and two, because our decision 

impermissibly modifies the terms of the grant of jurisdiction given to the common pleas 

courts by the legislature in R.C. 2929.19(B)(2)(g)(iii) to correct certain errors in jail-time 

credit after sentencing. 

{¶ 30} When we in effect modify the terms of R.C. 2929.19(B)(2)(g)(iii) with 

additional requirements such as a transcript or an affidavit that must be provided to gain 

the court's attention, and further hold as a matter of law that the trial court has jurisdiction 

to "determine the quality and quantity of proof required" to establish its own continuing 

jurisdiction, we impermissibly cross the line separating the powers of the State's three 

branches of government, stepping into the province of the legislature. (Majority Decision 

at ¶ 24.) This we cannot do. Ohio Constitution, Article IV, Section (B). ("The courts of 

common pleas and divisions thereof shall have such original jurisdiction over all justiciable 

matters and such powers of review of proceedings of administrative officers and agencies 

as may be provided by law.") (Emphasis added.) For the purpose of explaining my reasons, 

I outline my concerns according to a delineated, progressive analysis. 

How Smith and Gibson I differ 

Smith and Gibson I are consistent with one another to the extent that both 

stand for the proposition that R.C. 2929.19(B)(2)(g)(iii) only permits a defendant to avoid 

application of a properly asserted defense of res judicata when the issue of jail-time credit 

error was "not previously raised at sentencing." Smith at ¶ 8-10; Gibson I at ¶ 9-10. But in 

Smith, decided before Gibson I, this Court held that, under R.C. 2929.19(B)(2)(g)(iii), an 

incarcerated individual seeking to correct jail-time credit bears an additional, unlegislated 

burden of producing a certain quality of evidence, described in Smith only as, "[g]iven the 

lack of evidence to support his motion, we conclude that appellant has not demonstrated 

that the trial court abused its discretion by denying his motion for jail-time credit," with
No. 17AP-200 13 

the motion to establish that the alleged error was not previously raised at sentencing, and 

that this must be done to avoid the application of res judicata. Smith at ¶ 10, 14. But in 

Smith, evidence such as a transcript was not for the purpose of invoking the continuing 

jurisdiction of the trial court. Rather, it was to avoid the application of the affirmative 

defense of res judicata. Id. at ¶ 8, in passim (using the word "jurisdiction" only once in a 

block quote of the statute and otherwise exclusively discussing res judicata). 

{¶ 31} Production of a transcript and other evidentiary materials is, for most 

incarcerated individuals, beyond their financial reach and in effect becomes in itself a 

collateral sanction.8 In Gibson I, we avoided this. 

{¶ 32} In Gibson I, we also avoided a more global problem: When we in Smith

required an incarcerated criminal defendant to request, pay for, and submit evidence such 

as a transcript or other documentary evidence,9,10 from his or her original or other 

sentencing proceedings to survive what is tantamount to a presumption that res judicata 

applies, we ignored the proverbial piranha in the fish tank of the State's constitutionally 

mandated separation of powers. We in effect stepped into the shoes of the legislature by 

adding requirements for access to the courts to a statute that determines a trial court's 

continuing jurisdiction. 

{¶ 33} Finally, in Gibson I, Gibson posited in his sole assignment of error the 

constitutional questions raised by the Fifth and Fourteenth Amendments of the U.S. 

Constitution. He asked us to balance all of these issues within the constitutional framework 

of equal protection and due process. Such an analysis was neither sought nor expressed in 

Smith.

 

8 From a practical standpoint, if we determine the burden belongs to the incarcerated defendant, our next 

question faced will be whether such an individual (who is most likely indigent on account of incarceration) is 

entitled to a free transcript or other documentary evidence from the clerk or sheriff. 

9 It should be noted that a transcript may not always be the form of evidence submitted by a defendant seeking 

to correct jail-time credit. In State v. Canty, 10th Dist. No. 15AP-715, 2015-Ohio-5241, the incarcerated 

individual "provided documentation to the trial court indicating he was arrested and detained on February 14, 

2013 in Madison County, Illinois as a 'Fugitive from Justice.' " Id. at ¶ 10. We characterized the jail-time 

credit error as being "asserted by Canty" as "not raised at sentencing," and we held that "res judicata does not 

bar Canty's request for additional jail-time credit pursuant to R.C. 2929.19(B)(2)(g)(iii)." Canty at ¶ 11. 

10 We also noted in Gibson I, the State could have provided a transcript but "did not do so and instead argues 

that Gibson should have." Gibson I at ¶ 10, fn. 1. 
No. 17AP-200 14 

How the majority decision in the en banc Gibson II differs from Smith and 

Gibson I 

{¶ 34}In Gibson I, we saw no requirement in the language of R.C. 

2929.19(B)(2)(g)(iii) for the incarcerated individual to supply anything but a motion with 

an allegation that jail-time credit error existed that had not previously been raised at 

sentencing. In Gibson II, it appears that the majority steps away from the more extreme 

requirement implicated in Smith, argued by the State and endorsed by the dissent in 

Gibson I, of requiring the incarcerated movant to file a transcript; rather, the Gibson II 

majority now requires an affidavit. But an affidavit is not required by the statute, either. 

Thus, more in keeping with Smith, the majority would require an affidavit to be submitted 

to accompany or be part of an R.C. 2929.19(B)(2)(g)(iii) motion rather than to give effect 

to the plain language of the statute. 

{¶ 35}In Gibson I, we reached our decision in recognition of the fact that R.C. 

2929.19(B)(2)(g)(iii) expands or continues the jurisdiction of the trial court to make jailtime credit correction under particular circumstances set forth in the statute. Now, under 

Gibson II, instead of overruling those parts of Smith that the State and the dissent in 

Gibson I argue impose a transcript requirement to avoid res judicata, the majority holds 

that an affidavit must be submitted, which may not be enough if the trial court does not 

think so (Majority Decision at ¶ 24), instead of a transcript under R.C. 

2929.19(B)(2)(g)(iii)—and this is necessary just to gain the trial court's attention to 

correcting potential error in how much time a person may legally and constitutionally be 

locked up. 

Constitutional underpinnings to R.C. 2929.19(B)(2)(g)(iii) 

{¶ 36} The Constitution requires that " 'all time spent in any jail prior to trial and 

commitment by [a prisoner who is] unable to make bail because of indigency must be 

credited to his sentence.' " (Emphasis sic.) State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio856, ¶ 7; see also Tate v. Short, 401 U.S. 395 (1971); Williams v. Illinois, 399 U.S. 235 

(1970); Griffin v. Illinois, 351 U.S. 12 (1956). Before this constitutional right can be 

procedurally forfeited, due process must be observed. 

{¶ 37} As the Second District Court of Appeals recently observed: 
No. 17AP-200 15 

We have held that due process requires that a defendant be 

given notice of, and an opportunity to be heard regarding, the 

findings the court intends to make on jail-time credit. If an 

opportunity to be heard did not occur during the sentencing 

hearing, often because the necessary facts concerning a 

defendant's confinement are not then known to the court, "the 

court must make a delayed determination, and due process 

then requires that the defendant have notice of and an 

opportunity to be heard concerning the finding the court 

proposes to make." State v. Flemings, 2d Dist. Montgomery 

No. 24615, 2011-Ohio-4286, ¶ 33-34, citing State v. Coyle, 2d 

Dist. Montgomery No. 23450, 2010-Ohio-2130. 

State v. Wade, 2d Dist. No. 2015-CA-45, 2015-Ohio-5171, ¶ 13. In recognition of the gravity 

of jail-time credit determinations, the Supreme Court of Ohio has recognized that a 

judgment of conviction and sentence required by Crim.R. 32(C) entails a factual 

determination of the number of days of confinement by which the department of 

rehabilitation and correction must reduce the sentence the court imposes. State ex rel. 

Rankin v. Ohio Adult Parole Auth., 98 Ohio St.3d 476, 2003-Ohio-2061, ¶ 7. 

Understanding a sentencing court's continuing jurisdiction versus the barring 

of claims because of res judicata 

{¶ 38} In tension with the constitutional right to jail-time credit and the due process 

right to be heard on the factual determination of jail-time credit, there are two frames of 

reference in correcting or modifying jail-time credit after the time for direct appeal: First, 

the trial court relinquishes jurisdiction following final judgment except to correct void 

judgments and clerical errors. State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, ¶ 20. 

Second, res judicata provides the State with an equitable defense to preclude arguments 

that jail-time credit awarded was incorrect if the arguments were raised or could have been 

raised at trial or on direct appeal. State v. Breeze, 10th Dist. No. 15AP-1027, 2016-Ohio1457, ¶ 7-9. Though analyses of these concepts are often taken together in cases involving 

jail-time credit, a court's jurisdiction and res judicata remain separate legal concepts. 

"Jurisdiction" refers to a court's power to hear a case (subject-matter jurisdiction) and to 

assert authority over the parties (personal jurisdiction). In re L.H., 10th Dist. No. 06AP23, 2006-Ohio-4116, ¶ 7. " 'Res judicata,' " by contrast, is a combination of issue preclusion 

and claim preclusion that one party may assert to estop the other from relitigating matters 
No. 17AP-200 16 

already decided. Breeze at ¶ 7, quoting Brooks v. Kelly, 144 Ohio St.3d 322, 2015-Ohio2805, ¶ 7. 

{¶ 39} As for the question of jurisdiction, the Supreme Court has time and again 

"recognized that 'trial courts lack authority to reconsider their own valid final judgments in 

criminal cases.' " Raber at ¶ 20, quoting State ex rel. White v. Junkin, 80 Ohio St.3d 335, 

338 (1997), citing State ex rel. Hansen v. Reed, 63 Ohio St.3d 597 (1992). But it has long 

been established that trial courts nonetheless "retain continuing jurisdiction to correct a 

void sentence and to correct a clerical error in a judgment." Raber at ¶ 20, citing State ex 

rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, ¶ 19. Among the clerical 

errors that trial courts have always retained jurisdiction to correct are "mathematical 

errors" in computing jail-time credit. 

{¶ 40} In addition to framing the question in terms of continuing jurisdiction, we 

also have previously held that jail-time credit correction should not be foreclosed by res 

judicata. State v. Canty, 10th Dist. No. 15AP-715, 2015-Ohio-5241, ¶ 9; State v. Lee, 10th 

Dist. No. 11AP-721, 2012-Ohio-1761, ¶ 6; State ex rel. Corder v. Wilson, 68 Ohio App.3d 

567, 573 (10th Dist.1991). Res judicata generally bars a criminal defendant from litigating 

claims after direct appeal if the issue was raised or could have been raised before the trial 

court or on a direct appeal11 from the trial court's judgment. State v. Jackson, 141 Ohio 

St.3d 171, 2014-Ohio-3707, ¶ 92. However, res judicata does not automatically apply 

without being raised as an affirmative defense, and it is subject to forfeiture, just as are 

constitutional arguments. Thus, the party asserting res judicata usually bears the burden 

of showing entitlement to the defense, and the defense does not apply in situations where 

it would be unjust to apply it, as explained further. 

{¶ 41} Res judicata is not contemplated directly in the Ohio Rules of Criminal 

Procedure, but Crim.R. 57(B) requires that we "look to the rules of civil procedure and to 

the applicable law" in their absence.12 Civ.R. 8(C) classifies "res judicata" as an "affirmative 

defense." Interpretive caselaw is consistent with this designation, even in the context of 

 

11 "Jail-time credit determinations can be challenged in a direct appeal." Canty at ¶ 7. 

12 "If no procedure is specifically prescribed by rule, the court may proceed in any lawful manner not 

inconsistent with these rules of criminal procedure, and shall look to the rules of civil procedure and to the 

applicable law if no rule of criminal procedure exists." Crim.R. 57(B). 
No. 17AP-200 17 

criminal cases. State v. Lelux, 10th Dist. No. 97APA10-1308, 1998 WL 303884, 1998 Ohio 

App. LEXIS 2547, *5 (June 11, 1998); see also, e.g., State v. Williams, 8th Dist. No. 103144, 

2016-Ohio-2629, ¶ 9. 

{¶ 42} The Supreme Court has held that, "because res judicata is an affirmative 

defense * * * resolution of a res judicata defense typically requires resort to materials 

outside the pleadings." (Citations omitted.) State ex rel. West v. McDonnell, 139 Ohio St.3d 

115, 2014-Ohio-1562, ¶ 16; see also Midfed Sav. Bank v. Martin, 12th Dist. No. CA91-12-

202, 1992 WL 165143, 1992 Ohio App. LEXIS 3677, *6 (July 13, 1992), quoting Freeman v. 

Beech Aircraft Corp., 12th Dist. No. CA80-11-119, 1983 Ohio App. LEXIS 15878, *11 

(Sept. 30, 1983) (stating " 'the party relying on res judicata or collateral estoppel has the 

burden of showing that precisely the same issue was adjudicated in the prior case as arises 

in the subsequent case' "). 

{¶ 43} The initial burden was on the State to demonstrate that res judicata applied 

by showing that Gibson "raised or could have raised the issue" of jail-time credit at 

sentencing. (Emphasis omitted.) Jackson at ¶ 92. Requiring a transcript of an incarcerated 

defendant who seeks correction of jail-time credit, underpinned by Smith, Johnson, and 

Guiterres at ¶ 15-16, in order to overcome a res judicata defense of the State is an affront to 

due process.13

{¶ 44} Finally, the Supreme Court has held that res judicata (unlike want of 

jurisdiction) is only to be " 'applied in particular situations as fairness and justice require, 

and that it is not to be applied so rigidly as to defeat the ends of justice or so as to work an 

injustice.' " (Emphasis sic.) Davis v. Wal-Mart Stores, Inc., 93 Ohio St.3d 488, 491 (2001), 

quoting Grava v. Parkman Twp., 73 Ohio St.3d 379, 386 (1995) (Douglas, J. dissenting); 

46 American Jurisprudence 2d, Judgments, Section 522, at 786-87 (1994); see also, e.g., 

State v. Griffin, 138 Ohio St.3d 108, 2013-Ohio-5481, ¶ 47. 

{¶ 45} Because the Ohio Constitution, Article IV, Section (B), establishes common 

pleas courts' jurisdiction to be "as may be provided by law," only the legislature can expand 

 

13 Under Gibson I, at a hearing, Gibson would have had the burden to prove his allegations of error in the 

computation of his jail-time credit, and the State would have had the burden to prove its affirmative defense, 

i.e., to show that res judicata applied, because the matter of jail-time credit error asserted by Gibson had been 

or could have been previously raised at the trial level or on appeal. 
No. 17AP-200 18 

or contract the provisions of its own statute. The phrase "as provided by law" in the 

Constitution of Ohio "must be given its plain, ordinary and usual meaning and that 

meaning must be uniform in all the parts of the constitution and * * * it means an act of the 

general assembly of this state * * *." Fitzgerald v. Cleveland, 88 Ohio St. 338, 400 (1913) 

(Donahue, J., dissenting). See also Weiss v. Kearns, 117 Ohio App. 393, 413 (8th Dist.1963) 

(Skeel, C.J., dissenting) ("But even if it should be concluded that by simply changing the 

place of the words, 'as provided by law,' in the jurisdictional grant of the Constitution, 

defining the jurisdiction of the Courts of Appeals, from the end of the clause to a place near 

the beginning, it was the purpose of the constitutional amendment to return to the 

Legislature (as was true prior to 1912) the right to fix and control the jurisdiction of the 

Courts of Appeals, then such right would be circumscribed by the phrase to review, affirm, 

modify, set aside, or reverse judgments or final orders, thus limiting the power of the 

Legislature to provide for appeals on questions of law.") (citations omitted); and 

Libertarian Party of Ohio v. Husted, 10th Dist. No. 16AP-496 2017-Ohio-7737, ¶ 34 

("Indeed, by stating that petitions are to be made 'as provided by law,' the provision [Ohio 

Constitution, Article V, Section 7] explicitly reserves the proper construction of such 

petitions to subsequent enactments by the General Assembly."). 

{¶ 46} We may only interpret but not add words to the statute, which is by state 

constitutional definition what is "provided by law." Id. Rather than to insert ourselves into 

the policymaking role of the legislature, we should recognize, like it or not, that in R.C. 

2929.19(B)(2)(g)(iii), the legislature codified and expanded the jurisdiction of the common 

pleas courts to reconsider their decisions in criminal cases in stated circumstances. In 

doing so, the legislature carefully extended the continuing jurisdiction of a sentencing court 

and thereby afforded an exception to the common law defense of res judicata: 

The sentencing court retains continuing jurisdiction to correct 

any error not previously raised at sentencing in making a 

determination [regarding jail-time credit]. The offender may, 

at any time after sentencing, file a motion in the sentencing 

court to correct any error made in making a determination 

[regarding jail-time credit], and the court may in its discretion 

grant or deny that motion. * * * Sections [governing petitions 

for postconviction relief and motions for new trials] do not 

apply to a motion made under this section. 
No. 17AP-200 19 

R.C. 2929.19(B)(2)(g)(iii). The Supreme Court has recognized this as an expansion of trial 

court jurisdiction and noted that, prior to this enactment, motions to correct jail-time credit 

were frequently "barred by the doctrine of res judicata," but after the enactment "an 

offender can file a motion to correct an error in determining jail-time credit 'at any time 

after sentencing' and the sentencing court has authority to correct any error in determining 

jail-time credit that was 'not previously raised at sentencing.' " (Emphasis added.) See 

State v. Thompson, 147 Ohio St.3d 29, 2016-Ohio-2769, ¶ 11-12, quoting R.C. 

2929.19(B)(2)(g)(iii). 

{¶ 47} In laying the foundation for judicially imposing certain evidentiary 

requirements in Smith and specifically extending them in Gibson II even to trial courts, we 

make easier for trial courts to conflate continuing jurisdiction (set by statute) with res 

judicata (a defense proffered by the State). State ex rel. West at ¶ 16. We dishonor the 

constitutional rights of incarcerated defendants, and we tread unconstitutionally in areas 

not meant for us. We do not set the jurisdiction of trial courts; the legislature does. Ohio 

Constitution, Article IV, Section (B).

Gibson II: Requiring an affidavit instead of a transcript, as Smith requires 

{¶ 48} According to the statute, the operative action Gibson was required to take was 

to "file a motion" that asserted that the issue of jail-time credit he raised had not been raised 

at sentencing. As noted, there is no requirement for the filing of a transcript or an affidavit 

to support his allegation. R.C. 2929.19(B)(2)(g)(iii); Smith at ¶ 14; Guiterres at ¶ 15-16. Nor 

does Crim.R. 47 require a transcript to be filed. Instead, Crim.R. 47 merely requires that 

Gibson's motion be stated with particularity and that such motion may be supported by 

affidavit. 

{¶ 49} By its plain language, R.C. 2929.19(B)(2)(g)(iii) vests a trial court with 

continuing jurisdiction to review "any" jail-time credit error not previously raised at 

sentencing, regardless of whether the alleged error is legal or mathematical in nature. We 

saw no basis in Gibson I for requiring the defendant to submit a transcript to invoke the 

trial court's jurisdiction and I see none now. 

{¶ 50} Whether either a movant or the State uses a transcript to satisfy their burden 

of proof or whether they use other material such as an affidavit depends on the record and 

on each party's strategy in successfully meeting their burdens of proof. To cause the moving 
No. 17AP-200 20 

party to bear both the burden of proving allegations in a motion as well as disproving an 

affirmative defense such as res judicata is tantamount to requiring the State in the initial 

criminal case to prove the lack of an affirmative defense in proving the commission of a 

crime, whether or not the defense is raised. This can hardly be what the Ohio General 

Assembly meant when it drafted R.C. 2929.19(B)(2)(g)(iii). 

Failure to honor state constitutionally established separation of powers 

{¶ 51} Having established that Smith specifies that it is "the movant[]'s burden to 

demonstrate" an entitlement to the statutory exception with the production of what has 

heretofore been argued to require a transcript at the time of the filing of a motion under 

R.C. 2929.19(B)(2)(g)(iii), the en banc majority's requirement of an affidavit is 

substantively little different from requiring an incarcerated defendant to provide a 

transcript with his or her motion to correct jail-time credit. Smith at ¶ 7-10. This is because 

the incarcerated movant is still required to undertake activity that the statute does not 

mandate. 

{¶ 52} In Gibson II, we, as a court, have judicially determined what supplies the 

continuing jurisdiction of the state's trial courts by imposing new requirements to the very 

statute that declares it—R.C. 2929.19(B)(2)(g)(iii). Under Ohio Constitution, Article IV, 

Section (B), only the legislature can do this. 

{¶ 53} In Smith, we assiduously avoided this question and instead embraced the 

concept of what such an incarcerated defendant must do to avoid res judicata. We should 

have examined the fact that our decision to impose evidentiary requirements at the outset 

of the filing of a motion impermissibly operated to limit the legislature's power to determine 

courts' jurisdiction. Whether it is in Smith or in the decision of the en banc majority in 

Gibson II, we cannot undertake this role. Fitzgerald; Weiss; Libertarian Party of Ohio.

{¶ 54} The people of this State have spoken through their Constitution, and they 

have not authorized us in their delegation of self-governance to determine our own or any 

other court's jurisdiction. Nor have they authorized that we release the common pleas court 

from the jurisdiction "as provided by law" to determine its own jurisdiction. Ohio 

Constitution, Article IV, Section (B); Majority Decision at ¶ 24. 

{¶ 55} I dissent based on the unshakeable conviction that we must heed our state 

constitutional limits of this power. Judges of the courts of appeal act as arbiters between 
No. 17AP-200 21 

those people who have submitted the resolution of their problems to the trial and 

administrative courts of this State and those officers of the court who directly impose the 

rule of law in resolving them. We must identify and cause to be corrected both the neglect 

and abuse of that process so that the very law in which the people trust is not used unfairly 

against them. Thus, it is not for us to add language to the statute that does not exist—

especially when that language defines the jurisdiction of the common pleas courts of this 

State whose decisions we must carefully review. We must heed the call of judicial restraint 

rather than impose procedures that may well result in restraint of our people beyond what 

is legally and constitutionally permissible. 

{¶ 56} Accordingly, I would hold that the trial court erred in finding that Gibson had 

failed to allege that the claimed error in his jail-time credit was not raised at sentencing. I 

would further hold that the trial court erred as a matter of law in rejecting on res judicata 

grounds the merits of Gibson's motion for additional jail-time credit on the filing of the 

motion, and I would sustain Gibson's assignment of error. For the reasons stated in this 

opinion, I respectfully dissent from the decision of the majority en banc. 

TYACK and HORTON, JJ., join in the foregoing dissent. 

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