[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Hunley v. Dept. of Rehab. & Corr., Slip Opinion No. 2019-Ohio-933.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                           SLIP OPINION NO. 2019-OHIO-933
         THE STATE EX REL. HUNLEY, APPELLANT, v. DEPARTMENT OF
                   REHABILITATION AND CORRECTION, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
 may be cited as State ex rel. Hunley v. Dept. of Rehab. & Corr., Slip Opinion
                                   No. 2019-Ohio-933.]
Mandamus—Procedendo—Inmate’s sentences ran consecutively by operation of
        statute even though judgment entry is silent on issue—Writ of procedendo
        is appropriate when a court has refused to render a judgment or has
        unnecessarily delayed proceeding to judgment—Court of appeals’ denial of
        petition affirmed.
    (No. 2018-0972—Submitted January 29, 2019—Decided March 20, 2019.)
      APPEAL from the Court of Appeals for Franklin County, No. 15AP-593.
                                    ________________
        Per Curiam.
        {¶ 1} Appellant, Harold Joseph Hunley, appeals the judgment of the Tenth
District Court of Appeals denying his petition for a writ of mandamus and/or
                             SUPREME COURT OF OHIO




procedendo to compel the Bureau of Sentence Computation of appellee, Ohio
Department of Rehabilitation and Correction (“DRC”), to recalculate his maximum
sentence. We affirm.
                                   Background
       {¶ 2} In 1989, Hunley pleaded guilty to robbery and was sentenced to 3 to
15 years in prison. Hunley was paroled in 1992, but later that year, he again pleaded
guilty to robbery and was sentenced to 3 to 15 years in prison. He was paroled a
second time in 1997.
       {¶ 3} In 2008, Hunley pleaded guilty in three separate cases in the Franklin
County Court of Common Pleas. In these cases, the court imposed concurrent
sentences of ten months in prison for forgery and two six-year terms for robbery.
The trial court also sentenced Henley to two three-year prison terms for gun
specifications, to run consecutively to the other sentences.
       {¶ 4} On June 17, 2015, Hunley filed a complaint for a writ of mandamus
and/or procedendo in the Tenth District Court of Appeals, arguing that his
maximum sentence should expire in 2019 instead of 2025 (as DRC had calculated)
because his 1989 and 1992 sentences should run concurrently. The magistrate
recommended denying the writ, concluding that the two 3-to-15-year sentences
were to be served consecutively. Hunley did not file objections to the magistrate’s
decision. The court of appeals adopted the magistrate’s decision and held that DRC
correctly determined that because the trial court’s 1992 judgment entry is silent on
the issue, it is presumed that the 1989 and 1992 sentences are consecutive.
                                  Legal Analysis
       {¶ 5} Pursuant to Civ.R. 53(D)(3)(b)(iv), we review the record for plain
error because Hunley failed to file written objections to the magistrate’s decision
and thus waived any challenge to the court of appeals’ adoption of the magistrate’s
findings of fact and conclusions of law. State ex rel. Muhammad v. State, 133 Ohio
St.3d 508, 2012-Ohio-4767, 979 N.E.2d 296, ¶ 3.



                                          2
                                 January Term, 2019




       {¶ 6} To be entitled to a writ of mandamus, Hunley was required to prove
(1) a clear legal right to the requested relief, (2) a clear legal duty on DRC’s part to
provide it, and (3) the lack of an adequate remedy in the ordinary course of the law.
State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452,
¶ 6.
       {¶ 7} In support of his first proposition of law, Hunley claims that DRC
altered the trial court’s 1992 judgment entry by determining that that sentence was
to run consecutively to his 1989 sentence, even though the judgment entry is silent
as to whether the sentences were consecutive or concurrent. Hunley is subject to
the sentencing schemes in effect at the time each of his offenses was committed.
See, e.g., State v. Thomas, 148 Ohio St.3d 248, 2016-Ohio-5567, 70 N.E.3d 496,
¶ 9; State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, ¶ 121.
The version of R.C. 2929.41(B)(3) that was in effect in 1992 stated that “[a]
sentence of imprisonment shall be served consecutively to any other sentence of
imprisonment * * * [w]hen it is imposed for a new felony committed by a
probationer, parolee, or escapee.” Former R.C. 2929.41(B)(3), Am.Sub.S.B. No.
258, 143 Ohio Laws, Part I, 1307, 1438.
       {¶ 8} Because Hunley was on parole when he reoffended in 1992, his
sentences ran consecutively by operation of statute, even though the 1992 judgment
entry is silent on that issue. State ex rel. Smith v. Schweitzer, 153 Ohio St.3d 232,
2018-Ohio-2396, 103 N.E.3d 816, ¶ 7. Hunley’s argument therefore lacks merit.
       {¶ 9} As his second proposition of law, Hunley maintains that the court of
appeals violated his due-process rights when it affirmed DRC’s alleged altering of
the trial court’s 1992 judgment entry. As stated above, however, the court of
appeals did not err in concluding that former R.C. 2929.41(B)(3) required
consecutive sentences. We affirm the court of appeals’ denial of Hunley’s request
for a writ of mandamus.




                                           3
                            SUPREME COURT OF OHIO




       {¶ 10} Finally, Hunley also seeks a writ of procedendo, but a writ of
procedendo is appropriate when a court has refused to render a judgment or has
unnecessarily delayed proceeding to judgment, e.g., State ex rel. Miley v. Parrott,
77 Ohio St.3d 64, 65, 671 N.E.2d 24 (1996), and DRC is not a court.
                                                               Judgment affirmed.
       O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
                              _________________
       Harold Joseph Hunley, pro se.
       Dave Yost, Attorney General, and Thomas E. Madden, Assistant Attorney
General, for respondent.
                              _________________




                                        4
