Johnson v. Moore (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Johnson v. Moore, Slip Opinion No. 2017-Ohio-2792.]
NOTICE
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SLIP OPINION NO. 2017-OHIO-2792JOHNSON, APPELLANT, v. MOORE, WARDEN, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Johnson v. Moore, Slip Opinion No. 2017-Ohio-2792.]
Habeas corpus—Failure to state a viable claim—Prisoner not entitled to immediate
release—Court of appeals’ dismissal of petition affirmed.
(No. 2016-0646—Submitted February 28, 2017—Decided May 16, 2017.)
APPEAL from the Court of Appeals for Warren County,
No. CA2016-02-011.
________________
Per Curiam.
{¶ 1} Appellant, Ronald G. Johnson, appeals the judgment of the Twelfth
District Court of Appeals dismissing his petition for a writ of habeas corpus. We
affirm.
{¶ 2} Johnson was on parole from a 7- to 25-year sentence imposed in 1987
in the Montgomery County Court of Common Pleas when he was arrested in 2005
in Fayette County. He was subsequently convicted of offenses committed in
SUPREME COURT OF OHIO
Fayette, Montgomery, Adams, Highland, and Madison Counties and was sentenced
in the courts of common pleas of those counties. He received an aggregate prison
term of 12 years as to all of the new offenses.
{¶ 3} Seeking an order granting his immediate release, Johnson argues that
the Department of Rehabilitation and Correction (“DRC”) improperly calculated
his total sentence by adding the 12-year term he received after his arrest while on
parole to the 7- to 25-year sentence imposed in 1987. He contends that DRC’s
action in running the 12-year aggregate term consecutively to the indefinite term
violated his right to be free from double jeopardy. Johnson reasons that had the
improper calculation not occurred, he would have been entitled to be released from
prison no later than October 10, 2015. In a passing reference, Johnson also
contends that DRC violated his rights to due process and equal protection by taking
him into custody following his 2005 arrest without the “required on-site hearing.”
{¶ 4} Johnson attached to his petition the sentencing entries from the
Montgomery, Fayette, Adams, Highland, and Madison County Courts of Common
Pleas. He also attached a letter dated October 24, 2007, from the Bureau of
Sentence Computation (“BOSC”) explaining how his various sentences were
applied to determine the date of the expiration of his maximum sentence. As of the
date of BOSC’s letter, Johnson’s maximum-sentence release date was calculated to
be August 27, 2024.
{¶ 5} Appellee, Warden Ernie Moore, moved the court of appeals to dismiss
Johnson’s petition on several different grounds. The court of appeals dismissed the
petition on the basis of res judicata, noting that Johnson had filed “virtually the
same habeas corpus petition” in the Warren County Court of Common Pleas in
December 2015.
{¶ 6} We agree with Johnson that the court of appeals erred by dismissing
his habeas corpus petition on the basis of res judicata. Res judicata is not among
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the affirmative defenses that may be raised in a Civ.R. 12(B) motion to dismiss.
Jefferson v. Bunting, 140 Ohio St.3d 62, 2014-Ohio-3074, 14 N.E.3d 1036, ¶ 9-10.
{¶ 7} However, “we will not reverse a correct judgment merely because of
an erroneous rationale.” State ex rel. Gilmore v. Mitchell, 86 Ohio St.3d 302, 303,
714 N.E.2d 925 (1999). 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.
Dept. 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. Until that time, any claim for
immediate release is unripe. In addition, his other claims are not cognizable in
habeas corpus. Jackson v. Johnson, 135 Ohio St.3d 364, 2013-Ohio-999, 986
N.E.2d 989, ¶ 3 (due process); Elersic v. Wilson, 101 Ohio St.3d 417, 2004-Ohio-
1501, 805 N.E.2d 1127, ¶ 3 (double jeopardy); Thomas v. Huffman, 84 Ohio St.3d
266, 267, 703 N.E.2d 315 (1998) (equal protection).
{¶ 8} Therefore, we affirm the judgment of the Twelfth District Court of
Appeals dismissing Johnson’s petition for a writ of habeas corpus.
Judgment affirmed.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, O’NEILL, and
DEWINE, JJ., concur.
FISCHER, J., not participating.
_________________
Ronald G. Johnson, pro se.
Michael DeWine, Attorney General, and M. Scott Criss, Assistant Attorney
General, for appellee.
_________________
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