State ex rel. Crowley v. Dept. of Rehab. & Corr. , 2018 Ohio 2526 ( 2018 )

[Cite as State ex rel. Crowley v. Dept. of Rehab. & Corr., 2018-Ohio-2526.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Bryant Crowley, :
Relator, :
v. : No. 17AP-198
Ohio Department of Rehabilitation and : (REGULAR CALENDAR)
Correction,
:
Respondent.
:
D E C I S I O N
Rendered on June 28, 2018
Bryant Crowley, pro se.
Michael DeWine, Attorney General, and Andrea K. Boyd, for
respondent.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
TYACK, J.
{¶ 1} Bryant Crowley, an inmate at Ross Correctional Institution ("RCI") filed this
action in mandamus, seeking a writ to compel the Ohio Department of Rehabilitation and
Correction ("ODRC") to amend his maximum expiration date.
{¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case
was referred to a magistrate to conduct appropriate proceedings. The parties stipulated the
pertinent evidence and filed briefs. The magistrate then issued a magistrate's decision,
appended hereto, which contains detailed findings of fact and conclusions of law. The
magistrate's decision includes a recommendation that we deny the requested writ.
{¶ 3} Counsel for Crowley, before attempting to withdraw as counsel, filed
objections on his behalf.
No. 17AP-198 2
{¶ 4} Based on our independent review of the evidence in the record, we overrule
relator's objections and we adopt the findings of fact and conclusions of law contained in
the magistrate's decision. As a result, we deny the request for a writ of mandamus.
{¶ 5} We also permit counsel for Crowley to withdraw as counsel.
Motion to withdraw as counsel granted;
Objections overruled; writ denied.
BROWN, P.J., and LUPER SCHUSTER, J., concur.
No. 17AP-198 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Bryant Crowley, :
Relator, :
v. : No. 17AP-198
Ohio Department of Rehabilitation & : (REGULAR CALENDAR)
Correction,
:
Respondent.
:
MAGISTRATE'S DECISION
Rendered on March 5, 2018
Matthew J. Barbato, for relator.
Michael DeWine, Attorney General, and Andrea K. Boyd, for
respondent.
IN MANDAMUS
{¶ 6} In this original action, relator, Bryant Crowley, an inmate of the Ross
Correctional Institution ("RCI"), requests a writ of mandamus ordering respondent, Ohio
Department of Rehabilitation and Correction ("ODRC" or "respondent"), to amend its
calculation of the sentence maximum expiration date such that the date is listed on its
records as October 16, 2017 rather than April 12, 2022.
Findings of Fact:
{¶ 7} 1. On September 25, 2017, pursuant to an order of the magistrate, relator and
respondent jointly filed the stipulation of evidence.
No. 17AP-198 4
{¶ 8} 2. Among the stipulated documents is the affidavit of Janet Couts executed
September 7, 2017. The Couts affidavit avers:
[Two] I am currently employed by the Ohio Department of
Rehabilitation and Correction (ODRC) as a Correction
Records Sentence Computation Auditor with the Bureau of
Sentence Computation (BOSC). My duties include
interpreting official court documents and other related papers
in the possession of the ODRC and calculating offenders'
sentences and release dates.
[Three] I created the attached sentence computation, dated
September 7, 2017, for Inmate Bryant Crowley, A515-336, at
the request of Assistant Attorney General Andrea Boyd. To
create this computation, I reviewed BOSC's records pertaining
to Inmate Crowley. True and accurate copies of some of those
records are attached to the sentence computation.
{¶ 9} 3. Appended to the affidavit is a three-page memorandum that Couts
referenced as "the attached sentence computation." Dated September 7, 2017, the
memorandum is addressed to Andrea Boyd who is the assistant attorney general assigned
as counsel for respondent in this action.
{¶ 10} 4. In respondent's brief filed in this action on November 7, 2017, under the
caption "Procedural Posture and Factual Background," respondent's counsel sets forth in
detail the relevant facts to be considered. That portion of respondent's brief is derived from
the Couts affidavit. The magistrate adopts the following portion of respondent's brief as
the magistrate's findings of fact:
Relator has been incarcerated a total of four times beginning
in 1993, under three different inmate numbers, for various
criminal convictions. * * * Relator was first admitted to the
custody of ODRC on March 29, 1993, for a conviction of
Complicity to Aggravated Robbery, in Clark County Case No.
92-CR-6[3]2. * * * Relator was sentenced to serve an
indefinite sentence of six (6) to twenty-five (25) years. * * *
Relator was paroled for the first time on September 20, 2001.
* * * At this time, the maximum expiration date of the only
sentence for which he was under supervision of the Adult
Parole Authority─Case No. 92-CR-6[3]2─was October 16,
2017. * * *
No. 17AP-198 5
On October 30, 2002, Relator was admitted to the custody of
ODRC for the second time for a Forgery conviction in Clark
County Case No. 02-CR-309. * * * Relator received an eleven
(11) month sentence for this conviction. * * * As a result,
Relator's parole was revoked, and his indefinite sentence of 6
to 25 years in Case No. 92-CR-632 was re-imposed. * * *
After serving the entirety of the 11 month sentence, Relator
was granted parole for a second time in Case No. 92-CR-632
on January 12, 2004. * * * On May 12, 2004, Relator was
returned to the custody of ODRC because he again violated the
terms of his parole in Case No. 92-CR-632. * * * Relator was
granted parole for the third time on January 3, 2005. * * *
Because Relator had been incarcerated on Case No. 92-CR-
632, the maximum expiration date of that indefinite sentence
was still October 16, 2017. * * *
On January 23, 2006, Relator was admitted to the custody of
ODRC for a fourth time * * * following a Burglary conviction
in Clark County Case No. 05-CR-819. * * * In addition to the
two (2) year sentence that he received as a result of this newest
conviction, Relator's parole was revoked in Case No. 92-CR-
632, and his indefinite 6 to 25 year sentence was again re-
imposed. * * *
While incarcerated in ODRC on the two year definite sentence
in 05-CR-819 and the balance of his indefinite sentence in 92-
CR-6[3]2, Relator received three additional prison sentences
for crimes he committed while on parole. * * * On May 5,
2006, Relator received a two and one half (2 1/2) year
sentence for two Assault convictions, which was ordered to be
served consecutively to the prison term he was currently
serving. * * *
On February 26, 2007, Relator received an 18 month sentence
for a conviction of Aggravated Assault, to run concurrently to
the 2-year definite sentence that was just imposed for his
Burglary conviction in Clark County Case No. 05-CR-819. * * *
Lastly, on July 5, 2007, Relator received a two (2) year
sentence as a result of a Felonious Assault conviction, ordered
to be served consecutively to his current prison sentence. * * *
Given these additional sentences, Relator's total prison term
consists of a definite 6 year and 6 month sentence and a 6 to
25 year indefinite sentence. * * * As a result of these additional
convictions, and the orders for consecutive sentencing on
No. 17AP-198 6
several of the cases, the maximum expiration of all of Relator's
sentences is April 12, 2022. * * *
Relator again came before the Parole Board in Case No. 92-
CR-632 on January 6, 2010. * * * However, given that Relator
had not yet completed serving his definite sentences for
Burglary, Assault, and Felonious Assault, he was deemed "not
eligible" for release. * * * A subsequent Parole Board Hearing
was tentatively scheduled for February 28, 2012, after Relator
completed the definite sentences─totaling 6.5 years─that he
began serving on January 23, 2006. * * *
On January 4, 2012, Relator's first Parole Hearing where he
was eligible for release occurred. * * * Relator's case was
referred to Central Office Board Review ("COBR") for release
consideration. * * * It was noted that Relator had served 77
months (6.42 years) at the time of this hearing, and that his
first statutory eligibility date was January 2012. * * * On
January 25, 2012, COBR continued Relator's parole hearing
until January 2, 2017, citing that a "release at this time, would
not serve in the best interest or welfare of society." * * *
Relator was again considered for parole on November 8, 2016.
* * * At this most recent hearing he was deemed "not suitable
for release at this time" based on the severity of the crimes
committed, among other factors. * * * Relator will next appear
before the Parole Board on November 1, 2019.
(Respondent's brief at 1-7.)
Conclusions of Law:
{¶ 11} The issue is whether three sentencing entries are ambiguous as to whether
relator shall serve the sentences consecutively or concurrently to the indefinite sentence of
6 to 25 years entered by the Clark County Court of Common Pleas in March 1993 in case
No. 92-CR-632.
{¶ 12} The first sentencing entry at issue was entered in May 2005 by the Clark
County Court of Common Pleas in case No. 06-CR-102. That entry imposed a two and one-
half year definite sentence for two assault convictions that followed a jury trial. That
sentencing entry states in part:
It is the ORDER of this Court that defendant serve the
following prison terms:
No. 17AP-198 7
Count one-Assault of a Police Officer-twelve (12) months.
Count two-Assault of a Police Officer-eighteen (18) months.
For a total prison term of two and one half (2 1/2) years, to be
served CONSECUTIVELY with prison term defendant is
currently serving.
(Emphasis sic.)
{¶ 13} The second sentencing entry at issue was entered in July 2007 by the Warren
County Court of Common Pleas in case No. 06CR23350. That entry sentenced relator for
the offense of felonious assault. The entry states in part:
It is hereby ORDERED that Defendant serve:
As to COUNT 1: a term of 2 years in prison, of which 0 years
is a mandatory term pursuant to R.C. §2929.13(F),
§2929.14(D)(3) or Chapter 2925. To run consecutively to
current prison sentence.
(Emphasis sic.)
{¶ 14} The third sentencing entry at issue was entered in January 2006 by the Clark
County Court of Common Pleas in case No. 05-CR-819. That entry sentenced relator
pursuant to a plea of guilty to the crime of burglary, a felony of the third degree. In the
sentencing entry, there is no mention as to whether the two year definite prison term
imposed is to be served consecutively or concurrently. The entry simply states: "It is the
ORDER of this Court that defendant serve a prison term of two (2) years." (Emphasis sic.)
Alleged Ambiguity in Sentencing Entries:
Cases Cited by Relator
{¶ 15} In State v. Carr, 167 Ohio App.3d 223, 2006-Ohio-3073, at ¶ 4, the court
states:
If sentencing is ambiguous as to whether a sentence should be
served concurrently or consecutively, the ambiguity must be
resolved in favor of the defendant and the sentences must be
served concurrently. State v. Quinones, 8th Dist. No. 83720,
2004 Ohio 4485and Hamilton v. Adkins (1983), 10 Ohio
App.3d 217, 10 Ohio B. 292, 461 N.E.2d 319. Since there was
ambiguity in the sentencing order as to whether the sentences
were to be consecutive or concurrent in this case, the
No. 17AP-198 8
ambiguity should have been resolved in favor of Carr and be
served concurrently.
{¶ 16} In State v. Downey, 8th Dist. No. 99685, 2013-Ohio-4924, the appellate
court states:
Downey also argues that the trial court's statement in the
entry that it "recommends that this sentence be served
concurrently with the defendant's federal sentence in Case
1:12CR285, which arises from the same incident," was
ambiguous because the court only "recommended" that the
state sentence run concurrently with the federal sentence. If
the sentence is ambiguous as to whether a sentence should be
served concurrently or consecutively, the ambiguity must be
resolved in favor of the defendant and the sentences must be
served concurrently. State v. Carr, 167 Ohio App.3d 223,
2006-Ohio-3073, 854 N.E.2d 571 (3d Dist).
Id. at 6.
Service of Prison Terms: Cases Cited by Respondent
{¶ 17} In Johnson v. Moore, 149 Ohio St.3d 716, 2017-Ohio-2792, ¶ 7, the Supreme
Court of Ohio states:
"When a sentencing court imposes a definite term of
imprisonment consecutively to an indefinite term, the Ohio
Administrative Coderequires the prisoner to serve the definite
term first, followed by the indefinite term." Jones v. Dep't. of
Rehab. & Corr., 10th Dist. Franklin No. 16AP-138, 2016-Ohio-
5425, ¶ 16; Ohio Adm.Code 5120-2-03.2(E).
{¶ 18} In Davis v. Dept. of Rehab. & Corr., 10th Dist. No. 14AP-337, 2014-Ohio-
4589, ¶ 16, this court states:
When a definite term of imprisonment was imposed
consecutively to an indefinite term, the prisoner must serve
the definite term first, followed by the indefinite term. Former
R.C. 2929.41(C)(4); Ohio Adm.Code 5120-2-03(E)(5). While
the prisoner serves the definite term, the indefinite term is
tolled. State ex rel. Foster v. Ohio State Adult Parole Auth.,
10th Dist. No. 91AP-1109, 1992 Ohio App. LEXIS 4065(Aug. 6, 1992), aff'd, 65 Ohio St.3d 456, 1992 Ohio 82, 605
N.E.2d 26 (1992).
In his brief, relator argues:
No. 17AP-198 9
On January 23, 2006, Relator was returned to the institution
for Case No. 05 CR 819, Burglary, to serve a definite two (2)
[year] sentence. On May 5, 2006, Relator received another
prison definite sentence for Case No. 06 CR 102, two counts
of Assault, of 2.5 years to run "consecutively with the prison
term defendant is currently serving." * * *
On July 5, 2007, Relator received another definite prison term
for Case No. 06 CR 23350, Felonious Assault, of two (2) years,
"to run consecutively to current prison sentence." * * *
The sentencing entries in Case No.'s 05 CR 819, 06 CR 102
and 06 CR 23350 are ambiguous when determining whether
the sentence imposed should be consecutive to Relator's
indeterminate sentence and should therefore be read in favor
of the Relator and be considered to run concurrent.
The sentencing entries prepared by the Courts in question,
specifically in Case No.'s 05 CR 819, 06 CR 102 and 06 CR
23350 do not include any reference to Relator's indeterminate
sentence imposed in 92 CR 632. Nor is there any reference to
the fact that Relator was on parole at the time these sentences
were imposed. It is unclear, because there is no reference
whatsoever, whether the Court itself was aware the Relator
was on Parole and whether it was that Court's intention that
its prison sentence was to run concurrently or consecutively
to Relator's indeterminate sentence.
Just as valid an interpretation of these Court's sentencing
entries is that the Courts intended that the sentences run
consecutive to the other prison sentences imposed under
these other case numbers only.
(Relator's brief at 5-6.)
{¶ 19} In its brief, respondent argues:
Contrary to Relator's assertion that the sentencing entries in
Case Nos. 06-CR-102 and 06-CR-23350 are "ambiguous" as
to whether the sentences imposed should have been imposed
consecutively to Relator's indeterminate sentence, the plain
language of the entries is clear. As noted by Relator, the
language in the sentencing entries in Case Nos. 06-CR-102
and 06-CR-23350 respectively state that the sentences were
No. 17AP-198 10
"to be served consecutively with the prison term defendant is
currently serving," and "to run consecutively to [his] current
prison sentence." * * *
Relator's parole was revoked in Case No. 92-CR-632 prior to
the imposition of these sentences; he was admitted into the
custody of ODRC on January 23, 2006 on both Case No. 05-
CR-819 and 92-CR-632. * * * Relator's indefinite sentence in
92-CR-632 was therefore part of his "prison term" prior to the
imposition of sentence in 06-CR-102 and 06-CR-23350. It
stretches credulity that the trial courts in Case Nos. 06-CR-
102 and 06-CR-23350 meant for the consecutive language in
their sentencing entries to be applicable only to the definite
term Relator was serving in 05-CR-819, and not to any
indefinite term that he was serving. Rather, given the use of
the language "prison term currently serving," and "current
prison sentence," it seems the courts intended these definite
terms to run consecutively to any time for which Relator was
currently incarcerated, which would include 92-CR-632.
(Respondent's brief at 15-16.)
{¶ 20} The magistrate agrees with respondent's argument and disagrees with
relator's argument. There is no requirement that the sentencing entries in case Nos. 06-
CR-102 and 06 CR 23350 that imposed definite sentences reference case No. 92CR-632
that imposed the indefinite sentence of 6 to 25 years. As indicated in the findings of fact of
this magistrate's decision, relator's parole was revoked in case No. 92CR-632 prior to the
imposition of the definite sentences imposed in case Nos. 06CR-102 and 06CR-23350.
{¶ 21} In order to obtain a writ of mandamus, the relator must demonstrate (1) that
he has a clear legal right to the relief prayed for, (2) that respondent has a clear legal duty
to perform the requested relief, and (3) that relator has no plain and adequate remedy in
the ordinary course of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28, 29
(1983).
{¶ 22} Moreover, relator bears the burden of proving his entitlement to the relief
requested by clear and convincing evidence. State ex rel. Doner v. Zody, 130 Ohio
St.3d 446, 2011-Ohio-6117, ¶ 55-57.
No. 17AP-198 11
{¶ 23} Based on the foregoing discussion, it is clear that relator has failed to prove
by clear and convincing evidence that he has a clear legal right to the relief requested and
that respondent has a clear legal duty to perform the requested relief.
{¶ 24} Accordingly, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus.
/S/ MAGISTRATE
KENNETH W. MACKE
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically objects
to that factual finding or legal conclusion as required by Civ.R.
53(D)(3)(b).