Trevathan v. Eppinger , 2021 Ohio 1134 ( 2021 )

[Cite as Trevathan v. Eppinger, 2021-Ohio-1134.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
DANNY TREVATHAN, : PER CURIAM OPINION
Petitioner, :
CASE NO. 2020-T-0086
- vs - :
LASHANN EPPINGER (WARDEN), :
Respondent. :
Original Action for Writ of Habeas Corpus.
Judgment: Petition denied.
Danny Trevathan, pro se, A544-000, Trumbull Correctional Institution, 5701 Burnett
Road, P.O. Box 640, Leavittsburg, OH 44430 (Petitioner).
Dave Yost, Ohio Attorney General, State Office Tower, 30 East Broad Street, 16th Floor,
Columbus, Ohio 43215, and Stephanie Watson, Assistant Attorney General, Ohio
Attorney General’s Office, 150 East Gay Street, 16th Floor, Columbus, OH 43215 (For
Respondent).
PER CURIAM.
{¶1} Danny Trevathan, an inmate at the Trumbull Correctional Institution,
petitions this court to issue a writ of habeas corpus to Warden LaShann Eppinger.
Trevathan contends the Bureau of Sentence Computation (“BSC”) arbitrarily added an
additional year to his prison sentence without a court order. The matter is now before us
on the Warden’s motion for summary judgment and Trevathan’s reply in opposition.
{¶2} “Summary judgment is appropriate when an examination of all relevant
materials filed in the action reveals that ‘there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law.’” Smith v. McBride,
130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12, quoting Civ.R. 56(C).
{¶3} “To be entitled to a writ of habeas corpus, a party must show that he is being
unlawfully restrained of his liberty, R.C. 2725.01, and that he is entitled to immediate
release from prison or confinement.” State ex rel. Cannon v. Mohr, 155 Ohio St.3d 213,
2018-Ohio-4184, 120 N.E.3d 776, ¶ 10, citing Leyman v. Bradshaw, 146 Ohio St.3d 522,
2016-Ohio-1093, 59 N.E.3d 1236, ¶ 8. “Habeas corpus is generally available only when
the petitioner’s maximum sentence has expired and he is being held unlawfully. And in
those circumstances, the writ is not available when there is an adequate remedy in the
ordinary course of the law.” (Citations omitted.) Steele v. Harris, 161 Ohio St.3d 407,
2020-Ohio-5480, 163 N.E.3d 565, ¶ 13.
{¶4} The Warden first contends Trevathan cannot succeed in his petition
because his claim that the BSC miscalculated the expiration date of his sentence is not
cognizable in habeas corpus. The Warden relies on State ex rel. Fraley v. Ohio Dept. of
Rehab. & Corr., 161 Ohio St.3d 209, 2020-Ohio-4410, 161 N.E.3d 646, where the
offender was granted a writ of mandamus compelling the Ohio Department of
Rehabilitation and Correction (“DRC”) to correct its records. Here, Trevathan argues he
is being held unlawfully because his maximum sentence, which was arbitrarily changed
by the DRC, has expired. If such an argument has merit, a writ of habeas corpus may
issue. See, e.g., State ex rel. Oliver v. Turner, 153 Ohio St.3d 605, 2018-Ohio-2102, 109
N.E.3d 1204. The Warden’s contention fails, therefore, as a matter of law.
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{¶5} The Warden further contends Trevathan cannot demonstrate that his
maximum sentence has expired. The Warden supports his motion with an affidavit of the
Correction Records Sentence Computation Auditor for the DRC. The Auditor prepared
and attached a calculation of sentence for Trevathan from DRC records, which is
summarized as follows:
{¶6} Trevathan was admitted to the DRC December 30, 1992, for felony
convictions in Mahoning County case number 92-CR-570. He was ordered to serve three
concurrent sentences, the longest an indefinite 5 to 25 years, plus a consecutive 3-year
term for a firearm specification in violation of R.C. 2941.141. His maximum expiration
date was May 13, 2020. Trevathan was paroled February 1, 2006. Trevathan was again
admitted to the DRC March 10, 2008, for felony convictions in Mahoning County case
number 2006-CR-593. He was ordered to serve four concurrent sentences of 1 year
each, plus a consecutive 1-year term for a firearm specification in violation of R.C.
2941.141. This sentence was ordered to run concurrent with Trevathan’s sentence in a
federal case. The Auditor concludes, “The gun specification is consecutive with his
maximum expiration date. His maximum expiration date became 5/13/2021.”
{¶7} In response, Trevathan contends his “release date has [consistently] stated
May 13, 2020 from the beginning of the sentencing violation on March 4, 2008, Case No.
2006-CR-593 for over a decade,” and “the court,” presumably the sentencing court, “has
maintained that everything is to run concurrent.” He refers to documents attached to his
petition—"Placement Investigation Request,” dated January 18 and February 20, 2020—
which indicate “MAX: 05/13/2020.” Trevathan claims that sometime after these dates, his
maximum expiration date changed to May 13, 2021.
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{¶8} Also attached to Trevathan’s petition are copies of sentencing entries from
Mahoning County case numbers 92-CR-570 and 2006-CR-593, as well as the sentencing
entry from the federal case. The Warden does not contest the authenticity of these entries
and specifically refers to the 2006-CR-593 entry in his motion.
{¶9} The central dispute is whether the 1-year sentence for the firearm
specification in 2006-CR-593 runs concurrently with or consecutively to the prison
sentence in 92-CR-570. Dispositive and fatal to Trevathan’s petition is that the 2006-CR-
593 entry is silent on the issue.
{¶10} “When a statute requires sentences to be served consecutively and the
sentencing entry is silent as to how the sentences are to run, the statute controls.” Fraley,
2020-Ohio-4410, at ¶ 13, citing State ex rel. Thompson v. Kelly, 137 Ohio St.3d 32, 2013-
Ohio-2444, 997 N.E.2d 498, ¶ 10. And, R.C. 2929.14(C)(1)(a)1 requires a mandatory
prison term for a firearm specification in violation of R.C. 2941.141 to be served
“consecutively to any other prison term or mandatory prison term previously or
subsequently imposed upon the offender.”
{¶11} Therefore, because the 2006-CR-593 sentencing entry is silent in this
regard, Trevathan is required to serve the 1-year firearm specification in 2006-CR-543
consecutively to the prison term previously imposed in 92-CR-570. Trevathan has not
demonstrated a genuine issue as to any material fact with respect to his claim that he is
entitled to immediate release from prison. The Warden is entitled to summary judgment
as a matter of law.
1. R.C. 2929.14(E)(1)(a) at the time of Trevathan’s 2008 sentencing.
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{¶12} Also, Trevathan’s reliance on the disposition in Fraley is inapposite. There,
the relator was entitled to a writ compelling the DRC to correct its records because the
sentencing entries were not silent—the court had ordered the sentences in two cases to
be served concurrently with each other and did not separately address the sentences for
the firearm specifications. Although a legal error, the state did not appeal. In that
situation, “DRC’s role is not to correct a sentencing court’s errors and impose the
sentence it believes the court should have imposed. To the contrary, DRC is obliged to
execute the sentence imposed by the court.” Fraley at ¶ 17, citing State v. Grimes, 151
Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 21.
{¶13} The Warden’s motion for summary judgment is granted. Trevathan’s
petition for a writ of habeas corpus is denied.
CYNTHIA WESTCOTT RICE, J., THOMAS R. WRIGHT, J., MATT LYNCH, J., concur.
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