State v. Johnson , 2019 Ohio 1801 ( 2019 )

[Cite as State v. Johnson, 2019-Ohio-1801.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28162
:
v. : Trial Court Case No. 2004-CR-2082
:
RONALD G. JOHNSON : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 10th day of May, 2019.
...........
MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
RONALD G. JOHNSON, #518-770, 2240 Hubbard Road, Youngstown, Ohio 44505
Defendant-Appellant, Pro Se
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HALL, J.
{¶ 1} Ronald Johnson appeals pro se from a judgment of the trial court overruling
his motion to vacate judgment and motion for subpoena. Finding no error, we affirm.
I. Procedural History
{¶ 2} In 1987, Johnson was sentenced to 7-25 years in prison for voluntary
manslaughter in the Montgomery County Court of Common Pleas. While on parole, he
was convicted of offenses committed in Montgomery, Fayette, Adams, Highland, and
Madison Counties and was sentenced in the courts of common pleas in those counties.
In the Montgomery County case, Johnson was sentenced to community control. In 2007,
he violated the conditions of his community control, community control was revoked, and
he was sentenced to a total of 5 years in prison. The trial court ordered Johnson to serve
this sentence consecutive to any other sentences. Along with the sentences imposed in
the other counties, the result was an aggregate prison term of 12 years for all the new
offenses.
{¶ 3} Johnson filed numerous pro se motions with the trial court in the present
case, many of which sought to modify his sentence and all of which were overruled. In
particular, he filed a “Motion to Vacate Judgment on 5-yr. consecutive term Served from
8/29/2019 until 8/19/2024” in July 2018 and a “Subpoena for Records from the Bureau of
Sentence Computation.” In the motion to vacate, Johnson contended that he had already
served the 5-year term and that the Bureau of Sentence Computation (BSC) improperly
computed his sentence by adding the 5-year term to the maximum of his 7-to-25-year
prison term, rather than to the minimum of that term. The motion for subpoena asked the
trial court to issue the BSC a subpoena for records that, Johnson said, “will provide
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admissible evidence” in support of his argument. The trial court overruled both motions.
{¶ 4} Johnson appeals.
II. Analysis
{¶ 5} Johnson appears to present the following seven interrelated assignments of
error challenging the trial court’s decision overruling his two motions:
Honorable Judge Steven K. Dankof errored in concluding the motion
to vacate the Judgment on the duplicate consecutive definite term is a
challenge to the computation of sentences.
Honorable Judge Steven K. Dankof errored in not using his Judicial
Authority to determine the 5-year of imprisonment [sic] is fully satisfied as
of 6/14/2018.
Honorable Judge Steven K. Dankof errored in citing the 2017
Johnson v. Moore, 149 Ohio St.3d 716, 2017-Ohio-2792, 77 N.E.3d 967case as basis for his overruling the motion to vacate Judgment.
Honorable Judge Steven K. Dankof errored in using the cited case
Johnson v. Moore (2012) to determine the Ohio Administrative Code is
definite to indefinite sentencing guidelines.
Honorable Judge Steven K. Dankof errored in not granting the
motion for subpoena.
Honorable Judge Steven K. Dankof errored in not granting the
motion to vacate the Judgment of the duplicate consecutive definite term
served from 8/29/2019 expiring on 8/19/2024.
Honorable Judge Steven K. Dankof errored in failing to use his
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Judicial Authority to determine the merits of the satisfied Judgment order on
Montgomery County case # 2004-CR-2082.
{¶ 6} Johnson’s motion to vacate judgment sought a ruling that he had already
served the five-year prison term that he is to serve from August 29, 2019, to August 19,
2024, and that the BSC incorrectly computed his sentence. The trial court concluded that
the motion to vacate was not the proper way to challenge the sentence computation. We
agree. The trial court had no authority to address the BSC’s calculation of Johnson’s
sentence, and the court properly concluded that Johnson’s motion in this criminal case
was not the proper avenue for challenging the BSC’s calculation of his sentence. See
State v. Armstrong, 2d Dist. Montgomery No. 27413, 2018-Ohio-191, ¶ 8.
{¶ 7} The trial court further concluded that, even if it could address the sentence
calculation, Johnson’s argument would fail because the Ohio Supreme Court has already
found that his maximum term will not expire until 2024. The Court affirmed the Twelfth
District’s dismissal of Johnson’s petition for a writ of habeas corpus in Johnson v. Moore,
149 Ohio St.3d 716, 2017-Ohio-2792, 77 N.E.3d 967, concluding: “Johnson’s petition was
properly dismissed because it fails to state a claim. ‘When a sentencing court imposes a
definite term of imprisonment consecutively to an indefinite term, the Ohio Administrative
Code requires 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). As the 2007 letter from BOSC indicates, Johnson’s
maximum term will not expire until 2024.” Moore at ¶ 7.
{¶ 8} We note too that the Tenth District Court of Appeals has cited Moore to
dismiss Johnson’s challenge in that court to the BSC’s computation of his sentence.
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Johnson filed an original action in the Tenth District “requesting th[at] court issue writs of
mandamus and habeas corpus ordering respondent, Bureau of Sentence Computation
(‘BSC’), to properly calculate his sentences and immediately release him from
incarceration because ‘[a]ll terms of imprisonment imposed by all sentencing courts have
expired as of June 14, 2018.’ ” State ex rel. Johnson v. Bur. of Sentence Computation,
10th Dist. Franklin No. 18AP-351, 2018-Ohio-4338, ¶ 8. The appellate court concluded
that it did not have jurisdiction to consider the petition for a writ of habeas corpus. As for
the writ of mandamus, the court noted that Moore had ruled that the BSC “had acted
appropriately in finding that this inmate must serve the definite term sentences ordered
before starting to serve his indefinite sentences. The Supreme Court of Ohio found that
Johnson’s maximum term will not expire until 2024.” Id. at ¶ 3-4. So the appellate court
concluded that Johnson was “not entitled to a writ of mandamus because it has been
determined that BSC has properly calculated his sentence.” Id. at ¶ 20. “We are not in a
position,” said the court, “to overrule or overturn a ruling of the Supreme Court of Ohio.”
Id. at ¶ 6.
{¶ 9} As for Johnson’s motion seeking to subpoena BSC records in support of his
argument to vacate judgment, the trial court pointed out that the right to compulsory
process is a trial right and that no trial or any other proceeding was pending. The court
also cited Moore’s finding that the BSC had properly calculated Johnson’s sentence. We
agree with the trial court. There is no right to have a court subpoena documents when the
court’s jurisdiction has not been properly invoked. And in any event, the BSC records are
immaterial to the trial court’s decision.
III. Conclusion
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{¶ 10} The trial court did not err by overruling either of Johnson’s motions, and all
of the assignments of error are overruled. The trial court’s judgment is affirmed.
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WELBAUM, P.J. and DONOVAN, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Sarah E. Hutnik
Ronald G. Johnson
Hon. Steven K. Dankof