[Cite as Jones v. Ohio Dept. of Rehab. & Corr., 2016-Ohio-5425.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT



Johnny L. Jones,                                       :

                Plaintiff-Appellant,                   :
                                                                         No. 16AP-138
v.                                                     :            (Ct. of Cl. No. 2014-00891)

Ohio Department of Rehabilitation                      :           (REGULAR CALENDAR)
and Correction,
                                                       :
                Defendant-Appellee.
                                                       :


                                         D E C I S I O N

                                     Rendered on August 18, 2016


                On brief: Johnny L. Jones, pro se.

                On brief: Michael DeWine, Attorney General, James P.
                Dinsmore, and Timothy M. Miller, for appellee.

                             APPEAL from the Court of Claims of Ohio
SADLER, J.
        {¶ 1} Plaintiff-appellant, Johnny L. Jones, appeals from a judgment of the Court
of Claims of Ohio in favor of defendant-appellee, Ohio Department of Rehabilitation and
Corrections ("ODRC"). For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} In 1990, the Mahoning County Court of Common Pleas convicted appellant
of rape, kidnapping, and aggravated robbery.                  The court sentenced appellant to an
indefinite prison term of 15 to 25 years. In 1997, a Richland County Grand Jury indicted
appellant on one count of felonious assault in connection with a fight appellant had with
another inmate on September 14, 1996. The court convicted appellant of felonious assault
No. 16AP-138                                                                              2


and sentenced him to a definite prison term of eight years, consecutive to his sentence in
the 1990 case.
       {¶ 3} According to appellant, ODRC erroneously determined that Ohio law
required that he serve his definite, consecutive term of eight years before completing the
remainder of his indefinite term. This resulted in a new aggregate sentence of 23 to 33
years and a corresponding delay in appellant's parole eligibility. Consequently, the Ohio
Adult Parole Authority moved the date of appellant's first parole hearing from the year
2000 to the year 2007 due to the 1997 conviction.
       {¶ 4} Appellant believes that ODRC should have first applied his prison time to
his indefinite term of 15 to 25 years, making him eligible for release after he had served a
total of 23 years, the minimum 15-year term for the 1990 conviction followed by the 8-
year prison term for the 1997 conviction. In 2014, appellant filed an action against ODRC
in the Court of Claims seeking damages for false imprisonment. The case was tried to a
magistrate of the court on the issue of liability. On November 16, 2015, the magistrate
issued a decision recommending judgment for ODRC. Appellant filed objections to the
magistrate's decision on November 30, 2015, but he did not file a transcript of
proceedings before the magistrate or an affidavit of evidence.
       {¶ 5} On February 4, 2016, the Court of Claims issued a judgment entry
overruling appellant's objections, adopting the magistrate's decision as its own, and
entering judgment in favor of ODRC. Appellant timely appealed to this court from the
judgment of the Court of Claims.
II. ASSIGNMENTS OF ERROR
       {¶ 6} Appellant assigns the following as error:
               [1.] THE MAGISTRATE ERRED IN IT'S [sic] RULING THAT
               THE OHIO DEPARTMENT OF REHABILITATION,
               (hereinafter O.D.R.C.) HAD SOME LEGAL PRIVILEGE TO
               KEEP APPELLANT, WHO WAS LAWFULLY SENTENCED
               TO IMPRISONMENT, BEYOND THE EXPIRATION OF HIS
               SENTENCE.

               [2.] IF THE EXPIRATION OF A SENTENCE DOES NOT
               CREATE A DUTY TO RELEASE A PRISONER BREACH OF
               WHICH CONSTITUTES FALSE IMPRISONMENT.
No. 16AP-138                                                                             3


               [3.] THE COURT ERRED WHEN IT FAILED TO ADDRESS
               THE ISSUE OF APPELLANTS [sic] RIGHT TO SEE THE
               PAROLE BOARD BEFORE THE EXPIRATION OF
               APPELLANTS [sic] minimum sentence, Ohio Revised Code
               §2967.13, and Civil Rights Act of 1871.

               [4.] THE MAGISTRATE ERRED WHEN IT DIDN'T
               ADDRESS THE BREACH OF THE PLEA AGREEMENT
               APPELLANT HAD WITH THE STATE OF OHIO.

III. LEGAL ANALYSIS
       A. First, Second, and Third Assignments of Error
       {¶ 7} In appellant's first, second, and third assignments of error, appellant
contends that he is entitled to an award of damages for false imprisonment because
ODRC has continued to confine him beyond his lawful term. We disagree.
       {¶ 8} The state may be held liable for false imprisonment. McKinney v. Ohio
Dept. of Rehab. & Corr., 10th Dist. No. 09AP-960, 2010-Ohio-2323, ¶ 8. False
imprisonment occurs when a person confines another intentionally without lawful
privilege and against his consent within a limited area for any appreciable time, however
short. Griffin v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 10AP-733, 2011-Ohio-2115,
¶ 20, citing Bennett v. Ohio Dept. of Rehab. & Corr., 60 Ohio St.3d 107, 109 (1991).
ODRC may be found liable for the tort of false imprisonment if it intentionally continues
to confine an inmate despite having knowledge that the privilege initially justifying that
confinement no longer exists. Baker v. Dept. of Rehab. & Corr., 10th Dist. No. 11AP-987,
2012-Ohio-1921, ¶ 12, citing Bennett at 109. Thus, the elements of an inmate's claim of
false imprisonment are: (1) expiration of the lawful term of confinement, (2) intentional
confinement after the expiration, and (3) knowledge that the privilege initially justifying
the confinement no longer exists. Griffin at ¶ 19, quoting Corder v. Ohio Dept. of Rehab.
& Corr., 94 Ohio App.3d 315, 318 (10th Dist.1994).
       {¶ 9} Appellant argues that ODRC misapplied the relevant provisions of the Ohio
Administrative Code when it determined that Ohio law required appellant to immediately
begin serving his consecutive 8-year term, resulting in an adjusted aggregate prison term
of 23 to 33 years and corresponding delay in his parole eligibility. ODRC argues that it
continues to confine appellant because his sentence has not expired, and he has not been
No. 16AP-138                                                                                               4


released on parole. In overruling appellant's objections in this case, the Court of Claims
determined that the McKinney case barred appellant's false imprisonment claim against
ODRC.
        {¶ 10} In McKinney, ODRC incarcerated McKinney pursuant to an October 10,
2003 judgment entry that revoked his community control.                        McKinney brought suit
against ODRC in the Court of Claims alleging false imprisonment. Relying on the holding
in Davis v. Wolfe, 92 Ohio St.3d 549, 552 (2001), and former R.C. 2951.09, McKinney
claimed that the judgment entry was void on its face because the entry itself noted that his
period of community control ended June 22, 2003, yet his community control was not
revoked until October 10, 2003. 1 The Court of Claims granted ODRC's motion for
summary judgment, and McKinney appealed to this court.
        {¶ 11} On appeal, McKinney maintained that the plain language of the judgment
entry put ODRC on notice that the trial court lacked jurisdiction to revoke his community
control. This court disagreed, concluding that ODRC is immune from liability for false
imprisonment when it confines plaintiff pursuant to a facially-valid judgment or order,
even if the facially-valid judgment or order is later determined to be void. McKinney at
¶ 9. This court further stated that "[f]acial invalidity does not require the consideration of
extrinsic information or the application of case law." Id. at ¶ 12, citing Gonzales v. Ohio
Dept. of Rehab. & Corr., 10th Dist. No. 08AP-567, 2009-Ohio-246, ¶ 10. Applying the
prevailing rule of law to McKinney's claim, this court found that "the invalidity of the
judgment entry is only apparent by the application of case law." Id. Accordingly, this
court concluded that the Court of Claims did not err in granting summary judgment for
ODRC. Id. at ¶ 13.
        {¶ 12} This court has applied the McKinney "facial invalidity" rule in a number of
subsequent decisions. See, e.g., Beachum v. Ohio Dept. of Rehab. & Corr., 10th Dist. No.
11AP-635, 2012-Ohio-673 (McKinney bars a false imprisonment claim based on an
inmate's contention that his prison sentence was void because the trial court's sentencing
entries failed to properly notify him of post-release control); Foreman v. Ohio Dept. of
Rehab. & Corr., 10th Dist. No. 14AP-15, 2014-Ohio-2793, ¶ 14 (citing McKinney, this

1In Davis, the Supreme Court of Ohio held that a trial court lacks jurisdiction to revoke probation after the
end of a probationary period.
No. 16AP-138                                                                               5


court held that an inmate's claim that ODRC imprisoned him beyond his lawful term fails
to state a claim against ODRC where the sentencing entry is valid on its face but failed to
credit the inmate with all jail-time served); Pruitt v. Ohio Dept. of Rehab. & Corr., 10th
Dist. No. 13AP-117, 2013-Ohio-3743 (relying on McKinney, this court held that the Court
of Claims did not err when it dismissed plaintiff's claim for false imprisonment because
the plaintiff was sentenced pursuant to a facially-valid sentencing entry and the plaintiff's
basis for the false imprisonment claim was that the sentencing court erred in its
calculation of jail-time credit). In McKinney and in the subsequent decisions of this court
holding that McKinney disposed of an inmate's false imprisonment claim, the inmate
alleged that the sentencing court erred when it imposed sentence even though the error
was not apparent on the face of the sentencing entry.
       {¶ 13} Here, appellant does not contend that the sentencing court imposed an
illegal or invalid prison term for either of his convictions, nor does he contend that either
of the two sentences is void.       Rather, appellant claims that ODRC erred when it
determined that Ohio law required appellant to first serve the eight-year definite term
before completing the remainder of his indefinite sentence, resulting in the lengthening of
his aggregate prison term and a delay in his parole eligibility. Thus, unlike McKinney and
the cases decided thereunder, appellant alleges error on the part of ODRC in failing to
properly calculate his sentence expiration date. According to appellant, ODRC's error in
interpreting valid and unambiguous sentencing entries caused his illegal confinement.
Because appellant does not allege error on the part of the sentencing court, we do not
believe McKinney disposes of his false imprisonment claim.
       {¶ 14} Nevertheless, in addition to concluding that McKinney disposed of
appellant's action for false imprisonment, the magistrate rejected appellant's claim that
ODRC miscalculated his sentence expiration date. Specifically, the magistrate concluded
that, pursuant to the relevant provisions of the Ohio Administrative Code, appellant must
serve his definite term of imprisonment imposed by the court in 1997 before he completes
the indefinite prison term imposed by the court in 1990. We agree with the magistrate's
analysis.
       {¶ 15} Ohio Adm.Code 5120-2-03.2 provides, in relevant part, as follows:
               (A) As used in this rule:
No. 16AP-138                                                                                 6


               (1) "Senate Bill 2 sentence" means a prison term imposed for
               offenses committed on or after July 1, 1996 but before
               September 30, 2011, to be served with the department of
               rehabilitation and correction.

               ***

               (4) "Pre-Senate Bill 2 indefinite sentence" means indefinite
               sentences imposed for offenses committed before July 1, 1996,
               to be served with the department of rehabilitation and
               correction.

               ***

               (E) When a Senate Bill 2 sentence * * * is imposed to run
               consecutively to a pre-Senate Bill 2 indefinite sentence, any
               Senate Bill 2 sentence shall be served first, * * * and, lastly, the
               pre-Senate Bill 2 indefinite sentence shall be served.

       {¶ 16} 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. State v. Hilliard, 5th Dist.
No. 15CA16, 2015-Ohio-5324, ¶ 40-41. " 'While the prisoner serves the definite term, the
indefinite term is tolled.' " Id. at ¶ 39, quoting Davis v. Dept. of Rehab. & Corr., 10th Dist.
No. 14AP-337, 2014-Ohio-4589, ¶ 16.            In light of the relevant provisions of the
Administrative Code, ODRC did not err when it determined that Ohio law required
appellant to first serve his definite prison term for an offense committed after July 1, 1996,
before completing his indefinite prison term for an offense committed before July 1, 1996.
Thus, ODRC did not err when it adjusted his aggregate prison term from 15 to 25 years to
23 to 33 years. Furthermore, because appellant's indefinite sentence tolled during his
service of the definite prison term, appellant's claim that ODRC erred by deferring his
parole eligibility from 2000 to 2007 is also without merit. Hilliard.
       {¶ 17} Pursuant to R.C. 2949.12, a convicted felon "shall be kept within the
institution, jail, or workhouse until the term of the felon's imprisonment expires, the felon
is pardoned, paroled, or placed under a post-release control sanction, or the felon is
transferred under laws permitting the transfer of prisoners." Fisk v. Ohio Dept. of Rehab.
& Corr., 10th Dist. No. 11AP-432, 2011-Ohio-5889, ¶ 16. There is no dispute that at the
No. 16AP-138                                                                             7


time appellant filed his complaint in the Court of Claims, appellant had served just over
23 years in prison. Because appellant's maximum prison term of 33 years has not expired
and because he has not received parole, ODRC's initial privilege to confine appellant still
exists and ODRC is not liable to appellant for false imprisonment.
       {¶ 18} Based on the foregoing, we overrule appellant's first, second, and third
assignments of error.
       B. Fourth Assignment of Error
       {¶ 19} In appellant's fourth assignment of error, appellant claims that the
magistrate erred by failing to address his allegation that ODRC violated his plea
agreement. Appellant alleges that his 1997 plea agreement guaranteed him a parole
hearing on the completion of his minimum sentence.
       {¶ 20} The magistrate's decision makes no mention of appellant's plea agreement.
The Court of Claims overruled appellant's objection on this issue because appellant failed
to support his objection with a transcript of the proceedings held before the magistrate.
Civ.R 53(D)(3)(b) provides, in relevant part, as follows:
               (iii) Objection to magistrate's factual finding; transcript or
               affidavit. An objection to a factual finding, whether or not
               specifically designated as a finding of fact under Civ.R.
               53(D)(3)(a)(ii), shall be supported by a transcript of all the
               evidence submitted to the magistrate relevant to that finding
               or an affidavit of that evidence if a transcript is not available.

               (iv) Waiver of right to assign adoption by court as error on
               appeal. Except for a claim of plain error, 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 has objected to that
               finding or conclusion as required by Civ.R. 53(D)(3)(b).

       {¶ 21} Pursuant to Civ.R. 53(D)(3)(b)(iii), the absence of a transcript or an
affidavit of evidence prevented the Court of Claims from reviewing appellant's objection.
Additionally, because appellant failed to support his objection with a transcript of
proceedings, appellant waived the argument he raises in his fourth assignment of error.
Civ.R. 53(D)(3)(b)(iv); Huffer v. Huffer, 10th Dist. No. 12AP-883, 2013-Ohio-1575, ¶ 8,
No. 16AP-138                                                                            8


citing Petty v. Equitable Prod. & E. States Oil & Gas, Inc., 7th Dist. No. 05 MA 80, 2006-
Ohio 887, ¶ 23-24.
      {¶ 22} For the foregoing reasons, appellant's fourth assignment of error is
overruled.
IV. CONCLUSION
      {¶ 23} Having overruled appellant's four assignments of error, we affirm the
judgment of the Court of Claims of Ohio.
                                                                     Judgment affirmed.
                      TYACK and LUPER SCHUSTER, JJ., concur.
                               ___________________
