[Cite as Chapin v. Bradley, 2016-Ohio-7441.]




                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                     PICKAWAY COUNTY

Bradley K. Chapin                  :
                                   :
      Petitioner,                  :  Case No. 16CA12
                                   :
      v.                           :
                                   :
Charles Bradley, Warden            :  DECISION AND JUDGMENT ENTRY
Pickaway Correctional Institution, :
                                   :
      Respondent.                  :  RELEASED: 10/19/16
                                   :
______________________________________________________________________

HOOVER, J.

        {¶1}    Bradley K. Chapin filed a habeas corpus petition seeking his immediate

release from the Pickaway Correctional Institute on the ground that the state is holding

him beyond his maximum sentence. The state filed a motion to dismiss the petition on

the ground that while Chapin was released on parole, he committed federal crimes and

served federal prison sentences that are not counted towards his state sentence. Thus,

Chapin has failed to establish that he has served his maximum sentence. We find that

because Chapin was released on parole and declared to be a violator, the time between

the date on which he was declared a violator and the date on which he returned to

custody in this state under immediate control of the Adult Parole Authority (APA) shall

not be counted as time served under his Ohio sentence. Therefore, Chapin has failed to

establish that his maximum sentence has expired. Respondent’s motion for summary

judgment is GRANTED. Petition is DISMISSED.

                                         I. Procedural History
Pickaway App. No. 16CA12                                                                    2


       {¶2}   In June 1983, Chapin entered a guilty plea to one count of theft of drugs

with a firearm and one count of drug abuse. The trial court sentenced Chapin on the

theft with firearm count to 4 to 25 years, with 4 years actual and an additional 3 years of

actual incarceration for the firearm violation, and 2 to 5 years on the drug abuse count,

to be served concurrently with the sentences on the theft/firearm count. He received 64

days of jail time credit. (Entry, Chapin Exhibit A)

       {¶3}   Chapin was paroled in August 1990. In August 1991, while released on

parole Chapin pleaded guilty to armed bank robbery and a federal court sentenced him

to a 210-month federal prison term (17 years, 6 months) with 5 years of supervision.

(Sentence Monitoring Computation, Chapin Exhibit B) However, while being held on the

armed bank robbery charge, Chapin escaped from custody for several hours. The

federal court sentenced him to an additional consecutive term of 27 months for escape

(2 years, 3 months) with 3 years of supervision. (Chapin Exhibit B). In 2006, while

serving his federal sentence in a Pennsylvania prison, he was charged with

assault/bodily injury. The federal court sentenced him to 84 months (7 years), with 3

years supervision. (Chapin Exhibit B)

       {¶4}   In total, Chapin was incarcerated in federal prison from January 1992 to

December 2015, approximately 24 years. After his release, Chapin returned to state

custody in the Correction Reception Center, Pickaway County, Ohio. The Ohio Adult

Parole Authority revoked his parole in January 2016 based on the 1991 armed bank

robbery conviction and the circumstances surrounding it. Chapin is currently

incarcerated in the Pickaway Correctional Institution.
Pickaway App. No. 16CA12                                                                             3


        {¶5}    Chapin argues that his maximum state incarceration term was 28 years

(25 years, plus 3 for the firearm) and that he started serving it in 1983 and it expired on

April 4, 2011.1 Therefore, he argues that the APA usurped custody of him and

unlawfully extended his sentence when it revoked his parole in 2016 and incarcerated

him with a maximum sentence expiration date of 2035.

        {¶6}    The state argues that Chapin’s maximum state prison sentence is 28

years, but that he had served only 8 years of it at the time he committed armed bank

robbery and began his federal prison term. While Chapin was serving federal prison

time, he was not serving his state term and is not entitled to receive credit against it for

time served in federal prison. Therefore, when Chapin was released from federal prison

in late 2015, he still had about 20 years left on his state term and he is not entitled to be

released until 2035.

                                       II. Standard of Review

        {¶7}    The state filed a combined motion to dismiss for failure to state a claim

upon which relief can be granted under Civ.R. 12(B)(6) and motion for summary

judgment under Civ.R. 56(C).

        {¶8}    “A motion to dismiss for failure to state a claim upon which relief can be

granted tests the sufficiency of the complaint.” Volbers-Klarich v. Middletown Mgt., Inc.,

125 Ohio St.3d 494, 2010-Ohio-2057, 929 N.E.2d 434, ¶ 11. In order for a court to

dismiss a complaint under Civ.R. 12(B)(6) for failure to state a claim upon which relief

can be granted, it must appear beyond doubt that the plaintiff can prove no set of facts


1In his petition, Chapin questioned whether his firearm sentence was consecutive to his drug theft
sentence. The state addressed this issue and in a subsequent filing Chapin conceded this issue.
Pickaway App. No. 16CA12                                                                      4


in support of the claim that would entitle the plaintiff to the relief sought. Ohio Bur. Of

Workers’ Comp. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶

12; Rose v. Cochran, 4th Dist. Ross No. 11CA3243, 2012-Ohio-1729, ¶ 10. This same

standard applies in cases involving claims for extraordinary relief, including habeas

corpus. Boles v. Knab, 130 Ohio St.3d 339, 2011-Ohio-5049, 958 N.E.2d 554, ¶ 2

(“Dismissal under Civ.R. 12(B)(6) for failure to state a claim was warranted because

after all factual allegations of Boles’s petition were presumed to be true and all

reasonable inferences therefrom were made in his favor, it appeared beyond doubt that

he was not entitled to the requested extraordinary relief in habeas corpus”).

       {¶9}   The state attached additional APA documents to its motion in support of

its argument. Because we must go beyond the face of the complaint and consider

matters outside the pleading to make a determination, we deny the state’s Civ.R.

12(B)(6) motion to dismiss and address the state’s Civ.R. 56(C) motion for summary

judgment. See JNS Enterprises, Inc. v. Sturgell, 4th Dist. Ross No. 05CA2814, 2005-

Ohio-3200, ¶8 (If a motion to dismiss or opposing memoranda refers to or depends on

matters outside the pleadings, the court must deny the motion to dismiss).

       {¶10} Summary judgment is appropriate if the party moving for summary

judgment establishes that (1) there is no genuine issue of material fact; (2) the moving

party is entitled to judgment as a matter of law; and (3) reasonable minds can come to

but one conclusion, which is adverse to the party against whom the motion is made.

Civ.R. 56(C); New Destiny Treatment Ctr., Inc. v. Wheeler, 129 Ohio St.3d 39, 2011–

Ohio–2266, 950 N.E.2d 157, ¶ 24; Settlers Bank v. Burton, 4th Dist. Washington Nos.
Pickaway App. No. 16CA12                                                                   5


12CA36 and 12CA38, 2014–Ohio–335, ¶ 20. The moving party has the initial burden,

by pointing to summary judgment evidence, of informing the trial court of the basis for

the motion and identifying the parts of the record that demonstrate the absence of a

genuine issue of material fact on the pertinent claims. Dresher v. Burt, 75 Ohio St.3d

280, 293, 662 N.E.2d 264 (1996). Once the moving party meets this initial burden, the

nonmoving party has the reciprocal burden under Civ.R. 56(E) to set forth specific facts

showing that there is a genuine issue for trial. Id.

                                   III. Law and Analysis

       {¶11} Habeas corpus petitions are governed by R.C. 2725. Habeas corpus is

available when an individual's maximum sentence has expired and he is being held

unlawfully. “[H]abeas corpus will lie to challenge a decision of the APA to revoke parole

only in extraordinary cases where the petitioner is entitled to immediate release from

confinement.” Pryor v. Lazaroff, 131 Ohio App.3d 617, 619, 723 N.E.2d 178 (4th Dist.

1999). In habeas corpus cases, the burden of proof is on the petitioner to establish his

right to release. Chari v. Vore, 91 Ohio St.3d 323, 325, 744 N.E.2d 763 (2001).

       {¶12} Chapin alleges that he is entitled to immediate release from confinement

because he began serving his 28-year maximum state term in 1983 and it expired in

April 2011. He claims that he is entitled to have the time he served on parole and in

federal custody credited towards his maximum state term. Therefore, when he was

released from federal prison in December 2015, his maximum state term had already

expired. The state argues that Chapin was a “parole violator” and thus was not entitled

to have his time served in federal prison credited to his state sentence.
Pickaway App. No. 16CA12                                                                    6


       {¶13} R.C. 2967.15(C)(1) provides, “The time between the date on which a

person who is a parolee or other releasee is declared to be a violator or violator at large

and the date on which the person is returned to custody in this state under the

immediate control of the adult parole authority shall not be counted as time served

under the sentence imposed on that person or as a part of the term of post-release

control.” R.C. 2967.01 defines “Parole violator” as “any parolee or release who had

been declared to be * * * in violation of any other term, condition, or rule of the parolee’s

or releasee’s parole * * *, the determination of which has been made by the adult parole

authority and recorded in its official minutes.”

       {¶14} Chapin alleges that he has never been declared a “parole violator at

large” by the APA for purposes of invoking R.C. 2967.15(C)(1) and therefore his time in

federal prison should be counted towards his state sentence. However, the state

attached the APA special minutes showing that on August 16, 1991 the APA declared

Chapin to be a “parole violator” effective August 9, 1991. The state also attached a

subsequent arrest warrant for Chapin. (State Exhibits B & C) Chapin was released from

the federal prison on December 8, 2015 and was transported to the Correctional

Reception Center in Orient, Ohio. (State Exhibit D)

       {¶15} After Chapin’s return, the APA entered the following special minutes:

       Whereas, [Chapin] was declared a Violator in custody effective 8-9-91; and,
Whereas, the Superintendent of the Adult Parole Authority field offices has
recommended that he be restored to parole while at large effective 12-11-15; * * *
Therefore, by virtue of the authority vested in the Adult Parole Authority by Section
2967.15 of the Ohio Revised Code, he is hereby restored to parole status, effective 12-
11-15, to continue under the supervision of the Parole Supervision Section. (State
Exhibit E)
Pickaway App. No. 16CA12                                                                   7


The special minutes also include the notations: “Old Max Date: 4-4-2011”; “Lost Time

(in Days): 8889”; and “New Max Date: 8-5-2035.” (State Exhibit E) In January 2016, the

APA found that Chapin had violated the terms of his parole in 1991 and 1992 based on

his armed bank robbery conviction, possession of drug paraphernalia, possession of a

firearm, and a change of residence. At his parole violation hearing, Chapin admitted the

violations and APA revoked his parole effective January 11, 2016. (Chapin Exhibit D)

       {¶16} The state argues that because Chapin was declared a parole violator

effective August 9, 1991, he cannot have his federal prison term counted as time served

under his state terms under R.C. 2967.15(C). Chapin argues that he was never a

“parole violator at large” but instead was only a “parole violator.” He claims that R.C.

2967.15(C) applies only to a “parole violator at large” and not to a “parole violator.”

Chapin cites no authority to support his claim. The plain language of R.C. 2967.15(C)(1)

provides that the time between the date on which a parolee “is declared to be a violator

or violator at large” and the date on which that person is returned to state custody

under the immediate control of the parole authority shall not be counted as time served

under the state sentence. (Emphasis added). State ex rel. Gillen v. Ohio Adult Parole

Auth., 72 Ohio St.3d 381, 1995-Ohio-194, 650 N.E.2d 454 (parole violator not entitled to

credit for time served in New York); Coleman v. Ohio Adult Parole Auth., 4th Dist. Ross

No. 97CA2302, 1997 WL746046 (Nov. 19, 1997); Fowler v. McAninch, 4th Dist. Ross

No. 97CA2269, 1997 WL426119 (July 14, 1997). Thus, the state correctly followed the

provisions of R.C. 2967.15(C)(1) by adding the time between the date Chapin was
Pickaway App. No. 16CA12                                                                               8


declared to be a parole violator and the date on which he was returned to custody in

Ohio under the immediate control of the parole authority.

       {¶17} Next Chapin argues that his federal prison sentence should be counted as

time served under his state sentence because his federal sentence for armed bank

robbery was to be served concurrently with his state sentence.2 (Chapin Exhibit B)

However, because Chapin’s state sentence ceased to run from August 9, 1991 (the

date on which he was declared to be a parole violator) until December 11, 2015 (the

date he was returned to custody of the state under the immediate control of the adult

parole authority), there was no state sentence actively running at the time the federal

court imposed its sentence. Thus, the federal sentence could not “run concurrent” with

his state sentence. State ex rel. Amburgey v. Russell, 139 Ohio App.3d 857, 859-860,

745 N.E.2d 1134 (12th Dist. 2000); see also, State v. Trivett, 12th Dist. Clermont No.

CA2001-12-095, 2002-Ohio-6391, ¶20-22 (Because defendant’s out-of-state sentence

was not currently existing when his prior Ohio sentence was reinstated for probation

violation, defendant was not entitled to have his out-of-state sentence served concurrent

with his Ohio sentence).

       {¶18} Additionally, courts in other jurisdictions cannot circumvent R.C.

2967.15(C)(1) and require the state of Ohio to credit time served in prisons in other

jurisdictions against a prisoner’s Ohio sentence. State ex rel. Amburgey v. Russell,

supra. In Amburgey, Amburgey was convicted of attempted burglary and released on

parole when he moved to Kansas and was convicted of robbery. The Kansas


2Chapin attached a printout captioned “Sentence Monitoring Computation Data” as proof of his federal
sentences instead of the actual sentencing entries.
Pickaway App. No. 16CA12                                                                9


sentencing entry states that the Kansas term “runs concurrent to prior sentence in State

of Ohio.” Shortly thereafter Ohio declared Amburgey to be a parole violator. After

serving his Kansas sentence, Amburgey returned to Ohio where the Ohio Department

of Rehabilitation and Corrections added 928 days to his sentence, which reflected the

time between when he was declared to be a parole violator and when he was returned

to Ohio.

      {¶19} Amburgey argued that he was entitled to be credited with his time served

in Kansas. The appellate court rejected this argument:

             In this case, Amburgey was convicted and sentenced under Ohio
      law and then, as a matter of grace, was granted parole. Amburgey
      violated his parole by committing a crime in Kansas for which he was
      incarcerated in Kansas. Ohio has a law, R.C. 2967.15(C)(1), which states
      that a person who violates parole and is declared to be a violator or
      violator-at-large is not entitled to count as time served the period between
      the time the person is declared to be a violator and the date he is returned
      to the custody of the state of Ohio. The Kansas judge, in an extraterritorial
      sentencing decision, attempted to circumvent R.C. 2967.15(C)(1) by
      running Amburgey's Kansas sentence “concurrent to prior sentence in the
      state of Ohio.” Presumably, this meant any sentence that might be
      imposed as a result of Amburgey's parole violation. The record does not
      indicate whether the Kansas judge knew about the provisions of R.C.
      2967.15(C)(1).

             Under these circumstances, we conclude that the state of Ohio, by
      and through the Adult Parole Authority, has the right to enforce its own
      statute, which was lawfully enacted and applicable to Amburgey. Parole is
      intended to be a means of restoring offenders who are good social risks to
      society. Unless a parole violator can be required to serve time in prison in
      addition to that imposed for an offense committed while on parole, he
      escapes punishment for the unexpired portion of his original sentence,
      and the disciplinary authority of the Parole Board is undermined.

(Citations omitted) Id. at 861. Chapin cites no authority that requires the APA to

disregard the calculation requirements of R.C. 2967.15(C)(1) and follow a sentencing
Pickaway App. No. 16CA12                                                                      10


order of a foreign court (state or federal) for purposes of calculating a parole violator’s

time served on an Ohio sentence.

       {¶20} Next, Chapin argues that when the parole authority calculated his

remaining sentence under R.C. 2967.15(C) the effect was to “sua sponte” impose

consecutive sentences in violation of the separation of powers doctrine. He argues that

only a trial court may impose consecutive sentences and those sentencing statutes as

amended now provide for concurrent sentences. The premise of Chapin’s argument is

false: The parole authority does not “impose consecutive sentences” upon him when it

calculates the additional time he must serve in accordance with R.C. 2967.15(C)(1).

This argument and the sentencing statutes Chapin cites are inapplicable to the facts of

this case. See State ex rel. Gillen v. Ohio Parole Auth., 72 Ohio St.3d 381, 382, 1995-

Ohio-194, 650 N.E.2d 454 (concurrent sentencing statute, R.C. 2929.41, has no

application because it governs Ohio courts, not foreign courts and does not require the

parole authority to allow credit for sentences served in foreign jurisdictions); see also

State ex rel. Thompson v. Kelly, 137 Ohio St.3d 32, 2013-Ohio-244, 997 N.E.2d 498.

                                       IV. Conclusion

       {¶21} We find that there are no genuine issues as to any of the material facts.

After serving approximately 8 years of a 28-year sentence, Chapin was declared a

parole violator. He committed additional federal crimes and served approximately 24

years in federal prisons in various states before he was returned to custody in Ohio

under the immediate control of the APA. Under R.C. 2967.15(C)(1), the time between

August 9, 1991 and December 11, 2015 (8889 days) does not count towards his Ohio
Pickaway App. No. 16CA12                                                              11


sentence. Chapin maximum prison sentence has not expired. Chapin’s argument

concerning his concurrent federal sentences fails because under R.C. 2967.15(C)(1) his

state sentence ceased to run and therefore the federal sentence could not run

concurrent to it. The respondent is entitled to judgment as a matter of law. We GRANT,

the state’s motion for summary judgment and DISMISS the petition.

      {¶22} The clerk shall serve a copy of this order on all counsel of record and

unrepresented parties at their last known addresses by ordinary mail.

      {¶23} MOTION GRANTED. PETITION DISMISSED.

Abele, J. & McFarland, J.: Concur.



                                               FOR THE COURT


                                               _____________________________
                                               Marie Hoover
                                               Judge


                                       NOTICE

     This document constitutes a final judgment entry and the time period for
appeal commences from the date of filing with the clerk.

       Pursuant to Civ.R. 58(B), the clerk is ORDERED to serve notice of the
judgment and its date of entry upon the journal on all parties who are not in
default for failure to appear. Within three (3) days after journalization of this entry,
the clerk is required to serve notice of the judgment pursuant to Civ.R. 5(B), and
shall note the service in the appearance docket
