[Cite as State v. Bowers, 2013-Ohio-5523.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, ) 

) CASE NO. 13 MA 82 

PLAINTIFF-APPELLEE, ) 

) 

VS. ) O P I N I O N 

) 

JOHN BOWERS, ) 

) 

DEFENDANT-APPELLANT. ) 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas 

Court, Case No. 10CR1355. 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee: Attorney Paul Gains 

Prosecuting Attorney 

Attorney Ralph Rivera 

Assistant Prosecuting Attorney 

21 West Boardman Street, 6th Floor 

Youngstown, Ohio 44503 

For Defendant-Appellant: John Bowers, Pro se 

#621-934 

Belmont Correctional Institution 

P.O. Box 540 

St. Clairsville, Ohio 43950 

JUDGES: 

Hon. Joseph J. Vukovich 

Hon. Gene Donofrio 

Hon. Mary DeGenaro 

Dated: December 12, 2013
[Cite as State v. Bowers, 2013-Ohio-5523.]

VUKOVICH, J. 

{¶1} Defendant-appellant John Bowers appeals the decision of the 

Mahoning County Common Pleas Court denying his pro se motion for jail-time credit. 

The issues raised in this appeal are whether the trial court correctly computed jailtime credit and whether it correctly applied the holding of the Ohio Supreme Court in 

State v. Fugate, 117 Ohio St.3d 261, 883 N.E.2d 440, 2008-Ohio-856. For the 

reasons expressed below, jail-time credit was not miscalculated and Bowers’ Fugate

argument is barred by res judicata. Therefore, the judgment of the trial court is 

hereby affirmed. 

Statement of the Case

{¶2} On December 9, 2010, Bowers was indicted for two counts of trafficking 

crack cocaine in violation of R.C. 2925.03(A)(1)(C)(4)(e) and (A)(1)(C)(4)(d), first and 

second-degree felonies respectively. Bowers originally pled not guilty, however, on 

January 5, 2012, Bowers changed his plea and pled guilty to the indicted offenses. 

01/09/12 J.E; 01/20/12 Amended J.E. The trial court proceeded immediately to 

sentencing. Bowers received 2 years for each offense and the trial court ordered the 

sentences to run concurrently. 01/09/12 J.E.; 01/20/12 J.E. The trial court then gave 

Bowers 11 days of credit for time served, plus any additional time awaiting 

conveyance. 01/20/12 Amended J.E. Bowers did not file an appeal from his 

sentence or conviction. 

{¶3} On February 6, 2013, Bowers filed a pro se motion for jail-time credit. 

He argued that the trial court incorrectly computed his jail time credit and that it did 

not apply the jail-time credit to both charges. 02/06/13 Motion. The state answered 

and asserted that the trial court properly stated the credited amount of time. 03/05/13 

Motion. 

{¶4} After reviewing the motions, the trial court denied the request and 

stated that Bowers was entitled to 11 days credit. 04/25/13 J.E. 

{¶5} Bowers appeals that decision. 

Assignment of Error
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{¶6} “The trial court abused its discretion and erred in not granting all the jailtime credit the Appellant is entitled to and failing to apply Fugate to credit each of 

Appellant’s concurrent sentences.” 

{¶7} Bowers’ argument can be divided into two parts. First, he contends that 

the trial court did not compute the amount of jail time correctly. As aforementioned, 

the trial court credited him for 11 days. Bowers contends that he spent 26 days in jail 

during the pendency of the case and he should have been credited for that entire 

time. His second argument concerns the Ohio Supreme Court’s decision in Fugate. 

He contends that since his sentences were ordered to be served concurrently he was 

entitled to credit for 26 days on each sentence for a total credit number of 52 days. 

{¶8} In response to these arguments, the state asserts two positions. First, 

it claims that the matter is barred by res judicata because Bowers could have filed a 

direct appeal from the sentence but he did not. Second, the state asserts that even if 

the merits are reached, Bowers’ argument is meritless. It claims that Fugate applies 

only to multiple cases, not to multiple offenses. Thus, in this situation where there is 

only one case with multiple offenses, it does not apply. 

{¶9} In reviewing his arguments, we must first determine whether res 

judicata has any application in this case. We have previously explained that while a 

defendant may challenge mathematical errors in calculating jail-time credit by filing a 

motion for correction with the trial court, and then by appealing the resulting 

judgment, the proper vehicle for challenging legal errors in the imposition of jail-time 

credit is via a direct appeal from the sentencing entry. State v. Mason, 7th Dist No. 

10CO20, 2011–Ohio–3167, ¶ 13. Therefore, if legal errors are not raised via a direct 

appeal from the sentencing entry, they are barred by res judicata. Id.; State v. 

McKinney, 7th Dist. No. 12MA163, 2013-Ohio-4357, ¶ 8. The doctrine of res judicata 

establishes that “a final judgment of conviction bars a convicted defendant who was 

represented by counsel from raising and litigating in any proceeding except an 

appeal from that judgment, any defense or any claimed lack of due process that was 

raised or could have been raised by the defendant at the trial, which resulted in that 

judgment of conviction, or on an appeal from that judgment.” (Emphasis deleted.) 
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State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the 

syllabus. 

{¶10} With that law in mind, we will now look at each of his arguments in turn. 

1. Computation of Jail-Time Credit

{¶11} Bowers first argument concerns an alleged mathematical error; he is 

arguing that the trial court incorrectly computed jail time credit. Thus, res judicata 

does not bar this claim. 

{¶12} The trial court’s amended sentencing judgment entry states, “Credit for 

eleven (11) days for time already served shall be applied plus any additional time 

awaiting conveyance.” 01/20/12 J.E. As aforementioned, Bowers claims that he was 

in jail on these charges for a total of 26 days. Specifically, he contends that he was 

in jail from January 15, 2011 to January 26, 2011 and from January 5, 2012 to 

January 18, 2012. Given the date of the indictment and the bond entries in the case, 

the 11 days from January 15, 2011 to January 26, 2011 is when Bowers was being 

held in jail awaiting release on bond. The trial court correctly credited him for these 

11 days. Sentencing occurred on January 5, 2012. That date to January 18, 2012 is 

the additional time he was awaiting conveyance to prison. The trial court’s judgment 

clearly indicates that the Ohio Adult Parole Authority is to give Bowers credit for the 

time he served while awaiting conveyance. The Ohio Department of Rehabilitation 

and Corrections’ website indicates that he was admitted into Belmont Correctional 

Institute on January 18, 2012. Furthermore, it indicates that his release date is 

December 13, 2013. Therefore, it is clear that the Ohio Adult Parole Authority 

followed the trial court’s order and did give Bowers credit for the time he served while 

awaiting conveyance to prison. Consequently, there is no error in the computation of 

credit for time served. Bowers’ argument to the contrary lacks merit. 

2. Application of Fugate

{¶13} This leads us to Bowers’ second argument that the trial court 

misapplied the Fugate holding. We have previously held that the argument that the 

court misapplied the Fugate holding is a purely legal argument and should have been 

raised in a direct appeal. McKinney, 2013-Ohio-4357, ¶ 8 (however, we still 
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continued to determine if Fugate was misapplied). Accordingly, the argument is 

barred by res judicata. Id. 

{¶14} Even if the matter was not barred by res judicata, given the facts of this 

case, it must be concluded that the trial court did not misapply Fugate. In Fugate, the 

offender was found guilty of theft and burglary in Case No. 05CR4367. In Case No. 

05CR1414 he was on community control for a previous conviction of receiving stolen 

property. Following the indictment in 05CR4367, the probation department moved to 

revoke his community control. A hearing on that motion was held immediately before 

sentencing Fugate on the new charges. The probation officer informed the court that 

Fugate had over 200 days of jail-time credit. The prosecutor argued that the jail-time 

credit should only be applied to the sentence for violating the community control. The 

court imposed a prison term of 12 months for the community-control violation, noting 

a jail-time credit of 213 days. The court also stated that the sentence was to run 

concurrently with the sentences to be imposed for the burglary and theft convictions 

in the new case. The court then imposed a two-year prison term for the burglary 

conviction and a six month term for the theft offense. Those terms were ordered to be 

concurrent with each other and concurrent with the sentence for the community 

control violation. However, no jail-time credit was allowed for the burglary and theft 

convictions. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, ¶ 3-6. 

{¶15} Fugate appealed and argued that he should have received jail-time 

credit of 213 days toward each of his concurrent prison terms. The Ohio Supreme 

Court agreed and stated in the syllabus, “When a defendant is sentenced to 

concurrent prison terms for multiple charges, jail-time credit pursuant to R.C. 

2967.191 must be applied toward each concurrent prison term.” Id. at syllabus. 

{¶16} In reaching that determination, the Court noted that jail-time credit is 

governed by R.C. 2967.191 and the Ohio Administrative Code. It explained that Ohio 

Adm.Code 5120–2–04(F) applies to concurrent sentences, while Ohio Administrative 

Code 5120-2-04(G) applies to consecutive sentences. Provision (F) specifically 

provides that “[i]f an offender is serving two or more sentences, stated prison terms 

or combinations thereof concurrently, the adult parole authority shall independently 
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reduce each sentence or stated prison term for the number of days confined for that 

offense.” Conversely, provision (G) provides that for consecutive terms, jail-time 

credit is to be applied only once. After noting these provisions, the Court then 

explained: 

 Thus, * * * when concurrent prison terms are imposed, courts do 

not have the discretion to select only one term from those that are run 

concurrently against which to apply jail-time credit. R.C. 2967.191 

requires that jail-time credit be applied to all prison terms imposed for 

charges on which the offender has been held. If courts were permitted 

to apply jail-time credit to only one of the concurrent terms, the practical 

result would be, as in this case, to deny credit for time that an offender 

was confined while being held on pending charges. So long as an 

offender is held on a charge while awaiting trial or sentencing, the 

offender is entitled to jail-time credit for that sentence; a court cannot 

choose one of several concurrent terms against which to apply the 

credit. 

Fugate at ¶ 11-12. 

{¶17} Given the holding in Fugate, Bowers is correct that he is entitled to 11 

days credit on each charge. That said, there is no indication that he was not given 

credit for 11 days on each charge. The trial court’s judgment entry did not state that 

he was only entitled to 11 days on one of the charges. Although Fugate dealt with 

multiple offenses in one case, the focus was on the multiple cases and those 

sentences running concurrent. When there are multiple cases where the sentences 

are run concurrent, it is necessary to state in each case that the credit is given in 

each case. However, where there is only one case with multiple offenses, when the 

trial court states that the sentences are to run concurrent and generally states that an 

offender is entitled to so many days of jail-time credit, that statement applies to all 

charges unless otherwise specified. Furthermore, given that his release date is 

December 13, 2013 and the fact that he was sentenced on January 5, 2012, it is 

clear that 11 days plus the number of days awaiting conveyance was applied to both 
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sentences. Or in other words, there is no evidence here that jail-time credit was not 

given on both charges. 

{¶18} Therefore, even if Bowers’ Fugate argument was not barred by res 

judicata, we could not find that there was a misapplication of the Fugate holding. 

Conclusion

{¶19} For the foregoing reasons, the judgment of the trial court denying the 

motion for jail-time credit is hereby affirmed. 

Donofrio, J., concurs. 

DeGenaro, P.J., concurs.