State ex rel. Dews v. Dept. of Rehab. & Corr., Bur. of Sentence Computation , 2024 Ohio 3259 ( 2024 )

[Cite as State ex rel. Dews v. Dept. of Rehab. & Corr.,
Bur. of Sentence Computation, 2024-Ohio-3259.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Melvin Dews, :
Relator, : No. 24AP-212
v. : (REGULAR CALENDAR)
ODRC/Bureau of Sentence Computation, :
Respondent. :
DECISION
Rendered on August 27, 2024
On brief: Melvin Dews, pro se.
On brief: Dave Yost, Attorney General, Andrew T. Gatti, and
John H. Bates for respondent.
IN MANDAMUS
EDELSTEIN, J.
{¶ 1} On March 25, 2024, relator filed a complaint in the instant mandamus action,
seeking a writ of mandamus to direct respondent, the Bureau of Sentence Computation
within the Ohio Department of Rehabilitation and Correction, to “correct its record to
reflect the sentence actually imposed by the court of common pleas.” (Compl. at 1.)
Specifically, he wishes to compel respondent to apply jail-time credit noted in the
sentencing entry from his Hamilton County criminal case to the mandatory portion of his
prison sentence imposed by the trial court for a firearm specification.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
this matter was referred to a magistrate, and on April 9, 2024, respondent filed a motion
to dismiss relator’s complaint asserting he failed to file an affidavit of prior civil actions
in compliance with R.C. 2969.25(A), and his legal claim was foreclosed by Supreme Court
No. 24AP-212 2
of Ohio precedent. On May 2, 2024, the magistrate issued the appended decision. The
magistrate’s decision included findings of fact and conclusions of law and recommended
that we grant respondent’s motion to dismiss. Although the magistrate rejected
respondent’s argument that relator had an obligation to file an affidavit of prior civil
actions, the magistrate nonetheless concluded that relator failed to state a claim upon
which relief can be granted because the exact legal arguments relator raised in his
mandamus complaint have already been rejected by the Supreme Court in State v. Moore,
154 Ohio St.3d 94, 2018-Ohio-3237, ¶ 10.
{¶ 3} Relator has not filed any objections to the magistrate’s decision. “If no timely
objections are filed, the court may adopt a magistrate’s decision, unless it determines that
there is an error of law or other defect evident on the face of the magistrate’s decision.”
Civ.R. 53(D)(4)(c). Finding no error of law or other defect on the face of the magistrate’s
decision, this court adopts the magistrate’s decision as our own, including findings of fact
and conclusions of law. In accordance with the magistrate’s recommendation,
respondent’s motion to dismiss is granted.
Respondent’s motion to dismiss granted;
action dismissed.
DORRIAN and LELAND, JJ., concur.
No. 24AP-212 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Melvin Dews, :
Relator, :
v. No. 24AP-212
:
ODRC/Bureau of Sentence Computation, (REGULAR CALENDAR)
:
Respondent.
:
MAGISTRATE’S DECISION
Rendered on May 2, 2024
Melvin Dews, pro se.
Dave Yost, Attorney General, Andrew T. Gatti, and John H.
Bates, for respondent.
IN MANDAMUS
ON RESPONDENT’S MOTION TO DISMISS
{¶ 4} Relator Melvin Dews seeks a writ of mandamus ordering respondent Bureau
of Sentence Computation (“BSC”) to modify its record to correctly reflect relator’s sentence.
BSC has filed a motion to dismiss.
I. Findings of Fact
{¶ 5} 1. At the time of the filing of this action, relator was an inmate incarcerated
at the Noble Correctional Institution in Caldwell, Ohio.
{¶ 6} 2. BSC, as an administrative section of Ohio Department of Rehabilitation
and Correction (“ODRC”), is a government entity for purposes of R.C. 2969.21 et seq.
No. 24AP-212 4
{¶ 7} 3. Relator commenced this mandamus action by the filing of his complaint
on March 25, 2024.
{¶ 8} 4. In his complaint, relator alleges he was sentenced following a plea of
guilty to three criminal counts on October 12, 2022 in the Hamilton County Court of
Common Pleas. Relator attached a document to his complaint that he alleges to be a copy
of his sentencing entry in that case. The purported entry reflects that relator was found
guilty of the offenses listed in counts four, five, and seven, with the remaining counts
dismissed. On count four, relator was sentenced to a 12-month period of incarceration
with a 3-year firearm specification to be served consecutively and prior to the sentence
imposed on the underlying offense in count four. On both count five and count seven,
relator was also sentenced to a 12-month period of incarceration. The entry provided that
the sentences in counts four, five, and seven were to be served concurrently with each
other for a total aggregate sentence of four years of incarceration to be served with ODRC.
{¶ 9} 5. Relator alleges in his complaint that BSC calculated his sentence so “as to
modify his non-mandatory prison term to have been served in the county jail, by applying
jail-time credit to backend of sentence first, notwithstanding the sentencing court ordered
the exact opposite.” (Compl. at 2.) Relator further claims that BSC “has calculated the
sentence by applying jail-time credit to backend of the sentence first, modifying the 12-
month non-mandatory stated prison term to that of being mandatory.” (Compl. at 2-3.)
Relator asserts entitlement to a peremptory writ of mandamus compelling BSC “to correct
its record to reflect the sentence actually imposed by the court of common pleas.” (Compl.
at 1.)
{¶ 10} 6. BSC filed a motion to dismiss on April 9, 2024. Relator has not filed a
response.
No. 24AP-212 5
II. Discussion and Conclusions of Law
{¶ 11} BSC asserts relator’s complaint is subject to dismissal for failing to state a
claim upon which relief can be granted pursuant to Civ.R. 12(B)(6).
A. Review of a Motion to Dismiss for Failure to State a Claim
{¶ 12} A motion to dismiss for failure to state a claim is procedural and tests the
sufficiency of the petition or complaint itself and any attached documents. State ex rel.
Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (1992), citing Assn. for
Defense of Washington Local School Dist. v. Kiger, 42 Ohio St.3d 116, 117 (1989).
Attachments to the complaint are considered part of the complaint for all purposes.
Civ.R. 10(C). Generally, in ruling on a Civ.R. 12(B)(6) motion, a court “ ‘cannot resort to
evidence outside the complaint to support dismissal [except] where certain written
instruments are attached to the complaint.’ ” Brisk v. Draf Indus., 10th Dist. No. 11AP-
233, 2012-Ohio-1311, ¶ 10, quoting Park v. Acierno, 160 Ohio App.3d 117, 2005-Ohio-
1332, ¶ 29 (7th Dist.).
{¶ 13} A court reviewing a motion to dismiss pursuant to Civ.R. 12(B)(6) must
presume all factual allegations contained in the complaint to be true and make all
reasonable inferences in favor of the nonmoving party. Red Foot Racing
Stables v. Polhamus, 10th Dist. No. 19AP-390, 2020-Ohio-592, ¶ 11, citing State ex rel.
Turner v. Houk, 112 Ohio St.3d 561, 2007-Ohio-814, ¶ 5. “Before the court may dismiss
the complaint, it must appear beyond doubt from the complaint that the plaintiff can
prove no set of facts entitling the plaintiff to recovery.” Jones v. Dann, 10th Dist.
No. 09AP-352, 2009-Ohio-5976, ¶ 9, citing O’Brien v. Univ. Community Tenants Union,
Inc., 42 Ohio St.2d 242 (1975), syllabus. Provided there is a set of facts, consistent with
the complaint, under which the complaining party could obtain relief, a court may not
No. 24AP-212 6
grant a motion to dismiss for failure to state a claim. Prime Invests., LLC v. Altimate Care,
LLC, 10th Dist. No. 20AP-526, 2022-Ohio-1181, ¶ 23, citing York v. Ohio State Hwy.
Patrol, 60 Ohio St.3d 143, 145 (1991). However, a court need not accept as true any
unsupported and conclusory legal propositions presented in the complaint. Bullard v.
McDonald’s, 10th Dist. No. 20AP-374, 2021-Ohio-1505, ¶ 11, citing Morrow v. Reminger
& Reminger Co. LPA, 183 Ohio App.3d 40, 2009-Ohio-2665, ¶ 7 (10th Dist.).
B. Inmate Filing Requirements
{¶ 14} In support of dismissal, BSC first argues that relator failed to comply with
the inmate filing requirements in R.C. 2969.25. R.C. 2969.25(A) and (C) provide
procedural requirements for inmates commencing a civil action or appeal against a
government entity or employee. See State ex rel. Foster v. Foley, 170 Ohio St.3d 86, 2022-
Ohio-3168, ¶ 10; State ex rel. Swanson v. Ohio Dept. of Rehab. & Corr., 156 Ohio St.3d
408, 2019-Ohio-1271, ¶ 6. These procedural requirements include an affidavit of prior
civil actions under R.C. 2969.25(A) and an affidavit of waiver and affidavit of indigency
under R.C. 2969.25(C). Compliance with the inmate filing requirements of R.C. 2969.25
is mandatory, and failure to comply compels dismissal. Boles v. Knab, 129 Ohio St.3d 222,
2011-Ohio-2859, ¶ 1.
{¶ 15} With regard to the affidavit of prior civil actions, R.C. 2969.25(A) provides
that an inmate commencing a civil action in the court of appeals must file an affidavit
containing a “description of each civil action or appeal of a civil action that the inmate has
filed in the previous five years in any state or federal court.” To comply with
R.C. 2969.25(A), the filed affidavit must include all of the following:
(1) A brief description of the nature of the civil action or
appeal;
No. 24AP-212 7
(2) The case name, case number, and the court in which the
civil action or appeal was brought;
(3) The name of each party to the civil action or appeal;
(4) The outcome of the civil action or appeal, including
whether the court dismissed the civil action or appeal as
frivolous or malicious under state or federal law or rule of
court, whether the court made an award against the inmate or
the inmate’s counsel of record for frivolous conduct under
section 2323.51 of the Revised Code, another statute, or a rule
of court, and, if the court so dismissed the action or appeal or
made an award of that nature, the date of the final order
affirming the dismissal or award.
R.C. 2969.25(A). See Swanson at ¶ 5. R.C. 2969.21 provides definitions applicable to
R.C. 2969.25. A “civil action or appeal against a government entity or employee” is
defined as including any of the following:
(a) A civil action that an inmate commences against the state,
a political subdivision, or an employee of the state or a
political subdivision in a court of common pleas, court of
appeals, county court, or municipal court;
(b) An appeal of the judgment or order in a civil action of the
type described in division (B)(1)(a) of this section that an
inmate files in a court of appeals.
R.C. 2969.21(B)(1). However, a “civil action or appeal against a government entity or
employee” does not include “any civil action that an inmate commences against the state,
a political subdivision, or an employee of the state or a political subdivision in the court
of claims or the supreme court or an appeal of the judgment or order entered by the court
of claims in a civil action of that nature, that an inmate files in a court of appeals or the
supreme court.” R.C. 2969.21(B)(2). Importantly, inmates who have not filed a civil action
or appeal of a civil action against a government entity or employee in the previous five
years need not file the affidavit of prior civil actions required by R.C. 2969.25(A). State ex
rel. Wickensimer v. Bartleson, 123 Ohio St.3d 154, 2009-Ohio-4695, ¶ 3.
{¶ 16} Substantial compliance with the inmate filing requirements of R.C. 2969.25
is not sufficient. State ex rel. McGlown v. Mohr, 10th Dist. No. 14AP-478, 2015-Ohio-
1554, ¶ 9, citing State ex rel. Manns v. Henson, 119 Ohio St.3d 348, 2008-Ohio-4478, ¶ 4;
State ex rel. Neil v. French, 153 Ohio St.3d 271, 2018-Ohio-2692, ¶ 7. Nor can a deficiency
No. 24AP-212 8
in compliance with the statutory requirements present at the time of the filing of the
complaint or petition be cured at a later date. State ex rel. Swopes v. McCormick, 171 Ohio
St.3d. 492, 2022-Ohio-4408, ¶ 14 (stating that “all avenues for curing a failure to comply
with R.C. 2969.25” were “expressly foreclosed”) (Emphasis sic.)); State ex rel. Young v.
Clipper, 142 Ohio St.3d 318, 2015-Ohio-1351, ¶ 9 (stating that failure to comply with the
mandatory requirements of R.C. 2969.25 “is not curable by subsequent amendment” and
that a “belated attempt to file an affidavit that complies with R.C. 2969.25 does not excuse
the noncompliance”); Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, ¶ 9; Boles
at ¶ 2. Furthermore, the Supreme Court of Ohio has held that a court does not err by sua
sponte dismissing an original action for failure to comply with the inmate filing
requirements in R.C. 2969.25. State ex rel. Bey v. Bur. of Sentence Computation, 166
Ohio St.3d 497, 2022-Ohio-236, ¶ 19; State ex rel. Watkins v. Andrews, 142 Ohio St.3d
308, 2015-Ohio-1100, ¶ 8; State ex rel. Hall v. Mohr, 140 Ohio St.3d 297, 2014-Ohio-
3735, ¶ 5.
{¶ 17} BSC contends that relator has failed to comply with R.C. 2969.25(A)
because he failed to file an affidavit of prior civil actions. It is true that relator did not file
such an affidavit with his complaint. Notably, however, BSC does not contend that relator
has filed a civil action or appeal of a civil action against a government entity within the
previous five years. In the absence of evidence demonstrating that relator has filed such
an action, relator was not required by the plain text of R.C. 2969.25(A) to file an affidavit
of prior civil actions. Wickensimer at ¶ 3-6. BSC’s contention regarding relator’s lack of
compliance with R.C. 2969.25(A) is therefore without merit.
C. Alleged Failure to Apply Jail-Time Credit to Firearm Specification
No. 24AP-212 9
{¶ 18} Next, BSC argues relator’s complaint fails to state a claim upon which relief
can be granted because jail-time credit cannot be applied to relator’s sentence for the
firearm specification. In support of this position, BSC cites to State v. Moore, 154 Ohio
St.3d 94, 2018-Ohio-3237.
{¶ 19} In Moore, the defendant sought to have the time he spent in county jail
credited toward his sentence pursuant to the jail-time credit provisions contained in
R.C. 2967.191. The Supreme Court of Ohio explained Ohio’s sentencing scheme with
regard to firearm specifications:
Ohio law allows for the additional punishment of an offender
when a firearm is involved in the offense. R.C. 2929.14(B).
This is accomplished through a “specification,” which must be
set forth in the indictment for the underlying felony. See, e.g.,
R.C. 2941.141. For example, an offender who had a firearm on
his person or under his control while committing the offense
is subject to a one-year prison term for the specification. Id.;
R.C. 2929.14(B)(1)(a)(iii). An offender who displays,
brandishes, or uses the firearm to facilitate the underlying
offense is subject to an additional three-year prison term.
R.C. 2941.145; R.C. 2929.14(B)(1)(a)(ii). A sentence for a
specification must be served consecutively to and prior to any
sentence for the underlying felony offense.
R.C. 2929.14(C)(1)(a).
The prison term for the firearm specification is mandatory.
R.C. 2929.14(B)(1)(a). Moreover, the term “shall not be
reduced pursuant to section 2967.19 [petition for early
release], section 2929.20 [petition for judicial release],
section 2967.193 [earned days of credit], or any other
provision of Chapter 2967 or Chapter 5120 of the Revised
Code.” (Emphasis added.) R.C. 2929.14(B)(1)(b).
Moore at 8-9.1 The court noted that R.C. 2967.191 entitled a prisoner to jail-time credit
by requiring ODRC to reduce a prisoner’s term of imprisonment by the total number of
days that the prisoner was confined for any reason arising out of the offense for which the
1 The General Assembly amended R.C. 2929.14 in the time between the Supreme Court of Ohio’s decision in
Moore and relator’s sentencing. However, those amendments do not materially alter the text of the statute as
construed by Moore and as relevant to the present matter.
No. 24AP-212 10
prisoner was convicted and sentenced, including confinement while awaiting trial as
determined by the sentencing court. Id. at ¶ 10. However, the court found that the jail-
time-credit provision in R.C. 2967.191 “plainly constitutes ‘any other provision of Chapter
2967.’ ” Id. Therefore, under the terms of R.C. 2929.14, the court found that the
defendant’s “prison terms for the firearm specifications could not be reduced based upon
the time he served in jail prior to sentencing.” Id.
{¶ 20} Here, relator asserts entitlement to relief in mandamus based on the same
arguments considered and rejected by the Supreme Court of Ohio in Moore. Even
presuming the allegations in relator’s complaint to be true, i.e., BSC applied relator’s jail-
time credit to the portion of his sentence related to the underlying offense as opposed to
the mandatory firearm specification,2 relator cannot meet the requirements for a writ of
mandamus. Notably, relator does not claim BSC has failed to apply jail-time credit to his
sentence. Instead, he alleges only that BSC incorrectly applied relator’s jail-time credit to
the sentence for the offense underlying the firearm specification. Presuming all factual
allegations contained in the complaint to be true and making all reasonable inferences in
favor of relator as the nonmoving party, relator cannot demonstrate that BSC was under
a clear legal duty to apply jail-time credit to his sentence for the firearm specification or
that he has a clear legal right to such application of jail-time credit. See Moore at ¶ 15
(stating “the plain language of the specification provision requires that jail-time credit not
be applied toward prison terms for firearm specifications”). See also State v. Clinkscale,
10th Dist. No. 22AP-708, 2023-Ohio-4146, ¶ 12; State v. Hempstead, 8th Dist. No.
2 For purposes of R.C. Chapter 2929, the term “mandatory prison term” is defined in pertinent part as “the
term in prison that must be imposed for the offenses or circumstances set forth in * * * division (B) of section
2929.14 of the Revised Code.” R.C. 2929.01(X). See State v. Workman, 10th Dist. No. 21AP-607, 2024-Ohio-
167, ¶ 47. It is also noted that R.C. 2929.01 was amended following relator’s sentencing; those amendments,
however, are not relevant to the present matter.
No. 24AP-212 11
113051, 2024-Ohio-1474, ¶ 11. Therefore, relator fails to state in his complaint a claim
upon which relief can be granted.
D. Conclusion
{¶ 21} Accordingly, it is the decision and recommendation of the magistrate that
BSC’s motion to dismiss should be granted and relator’s complaint dismissed.
/S/ MAGISTRATE
JOSEPH E. WENGER IV
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). A party may file written objections to the
magistrate’s decision within fourteen days of the filing of the
decision.