[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Oliver v. Turner, Slip Opinion No. 2018-Ohio-2102.]




                                           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. 2018-OHIO-2102
    THE STATE EX REL. OLIVER v. TURNER, WARDEN; EPPINGER, WARDEN.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
         may be cited as State ex rel. Oliver v. Turner, Slip Opinion No.
                                     2018-Ohio-2102.]
R.C. 2929.41—Because sentencing entry for offense committed while petitioner
        was on parole did not specify that sentence was to be served consecutively
        to sentence for prior offense, sentence for later offense was to be served
        concurrently with sentence for prior offense—Petition not barred by res
        judicata—Writ of habeas corpus granted—Warden ordered to release
        petitioner.
       (No. 2018-0132—Submitted May 22, 2018—Decided June 1, 2018.)
                                    IN HABEAS CORPUS.
                                    ________________
        Per Curiam.
        {¶ 1} Tyrone Oliver filed a petition seeking a writ of habeas corpus against
Neil Turner, Warden of the North Central Correctional Complex, at which Oliver
                            SUPREME COURT OF OHIO




was an inmate. After filing this petition, Oliver was transferred to the Grafton
Reintegration Center and the custody of Warden LaShann Eppinger. We sua sponte
join Eppinger as a respondent in this case. See Jurek v. McFaul, 39 Ohio St.3d 42,
528 N.E.2d 1260 (1988). Because Oliver has completed his maximum sentence,
we hereby issue a writ of habeas corpus to Warden Eppinger commanding Oliver’s
immediate release from incarceration.
                                BACKGROUND
       {¶ 2} At a hearing on May 27, 1993, Oliver was sentenced to an
indeterminate prison sentence of 8 to 25 years for involuntary manslaughter. State
v. Oliver, Lucas C.P. No. CR93-5932A (June 3, 1993). After accounting for jail-
time credit, the Bureau of Sentence Computation (“BSC”) calculated his
maximum-sentence release date as January 9, 2018.
       {¶ 3} Oliver received parole release in July 2003. In February 2005, he
pleaded guilty to a charge of domestic violence and was sentenced to a prison term
of two years. State v. Oliver, Fulton C.P. No. 04CR45 (Feb. 22, 2005).
       {¶ 4} On January 26, 2018, Oliver filed the present petition for a writ of
habeas corpus. Oliver alleges that his 2005 sentence for domestic violence was to
be served concurrently with, not consecutively to, his 1993 sentence for involuntary
manslaughter, and he is therefore entitled to immediate release.
       {¶ 5} Because the petition states a facially valid claim, we ordered Turner
to file a return of the writ, 152 Ohio St.3d 1403, 2018-Ohio-723, 92 N.E.3d 876.
Turner complied on March 15, 2018, and Oliver filed a response on March 23.
                              LEGAL ANALYSIS
       {¶ 6} Prior to 1996, R.C. 2929.41 provided:


               (B) A sentence of imprisonment shall be served
       consecutively to any other sentence of imprisonment, in the
       following cases:




                                         2
                               January Term, 2018




               ***
               (3) When it is imposed for a new felony committed by a
       probationer, parolee, or escapee.


Am.Sub.H.B. No. 571, 145 Ohio Laws, Part IV, 6342, 6396. Thus, under former
R.C. 2929.41, it was mandatory that a sentence for a new felony committed while
an offender was on parole run consecutively to the sentence for any other offense.
       {¶ 7} However, the law changed with the 1995 passage of Am.Sub.S.B. No.
2, which deleted R.C. 2929.41(B)(3) effective July 1, 1996. 146 Ohio Laws, Part
IV, 7136, 7502. Under the new law, all sentences of imprisonment “shall be served
concurrently.” R.C. 2929.41(A). A sentencing judge may still impose consecutive
sentences if he or she makes certain findings, including a finding that consecutive
sentences are necessary to protect the public or to punish the offender. R.C.
2929.14(C)(4); State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d
659, ¶ 37. The fact that a defendant was on probation or parole for a prior offense
is now simply one factor that a court may cite as grounds for imposing consecutive
sentences, R.C. 2929.14(C)(4)(a), not a circumstance that requires consecutive
sentences.
       {¶ 8} Oliver’s 2005 sentencing entry states:


               It is hereby ORDERED that defendant serve a term of two
       (2) years at the Ohio Department of Rehabilitation and Correction,
       Orient, Ohio, for the offense of Domestic Violence, a violation of
       R.C. 2919.25(A) and (D)(4), a felony of the third degree.


(Capitalization sic.) State v. Oliver, Fulton C.P. No. 04CR45, at 2. The sentencing
entry does not explicitly order the new sentence to run consecutively to the 1993




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                             SUPREME COURT OF OHIO




involuntary-manslaughter conviction. Therefore, under the law in effect in 2005,
the sentences are presumptively concurrent.
       {¶ 9} In opposing this conclusion, Warden Turner points to an earlier
portion of Oliver’s 2005 sentencing entry, in which the trial judge described his
plea colloquy with Oliver.


               The Court further advised the defendant and the defendant
       said he understood that the Court could sentence him immediately
       and that if the offense to which he offered to plead was committed
       while he was on probation or parole, that the sentence for this
       offense must be consecutive with any possible sentence for violation
       of his probation or parole.


Id. Turner cites this statement as evidence that the trial judge imposed consecutive
sentences.


       Contrary to Oliver’s understanding, the sentencing entry establishes
       that these sentences were to be served consecutively. This is so
       because the Fulton County conviction for domestic violence was
       committed while Oliver was on parole from his 1993 Lucas County
       conviction.


       {¶ 10} But the sentencing entry does not indicate that the judge wanted to
impose consecutive sentences or that he had concluded that consecutive sentences
were warranted. Rather, the phrase “consecutive with any possible sentence for
violation of his probation or parole” appears in the judge’s explanation in the
sentencing entry that he had advised Oliver that consecutive sentences were
mandatory because Oliver’s offense had been committed while he was on parole, a




                                         4
                                  January Term, 2018




statement that was not legally correct. Because the sentencing entry does not
purport to impose a consecutive sentence, the sentence ran concurrently with
Oliver’s earlier sentence by operation of R.C. 2929.41(A). Therefore, Oliver
should have been released, at the latest, in January 2018.
        {¶ 11} Alternatively, Turner contends that irrespective of whether Oliver’s
claim has merit, it is barred by res judicata. In support thereof, Turner presents two
legal arguments.
        {¶ 12} First, he suggests that a writ of habeas cannot issue, because Oliver
had an adequate remedy to challenge his sentences by way of direct appeal. Turner
correctly notes that “ ‘[w]e have consistently held that sentencing errors are not
jurisdictional and are not cognizable in habeas corpus.’ ” State ex rel. Shackleford
v. Moore, 116 Ohio St.3d 310, 2007-Ohio-6462, 878 N.E.2d 1035, ¶ 5, quoting
Majoros v. Collins, 64 Ohio St.3d 442, 443, 596 N.E.2d 1038 (1992). But Oliver
is not challenging an error in the 2005 sentencing entry; his claim is that the BSC
misunderstood the legal effect of the sentencing entry when it added two years to
his maximum-sentence release date, a claim he could not have asserted in his direct
appeal, because it had not yet arisen.
        {¶ 13} Alternatively, Turner argues that res judicata applies because Oliver
unsuccessfully asserted the same claim in prior proceedings. On August 23, 2016,
Oliver filed a complaint in Franklin County Common Pleas Court against the Ohio
Department of Rehabilitation and Corrections and the BSC, seeking a declaratory
judgment that his 2005 domestic-violence sentence was to be served concurrently
to his earlier sentence. State ex rel. Oliver v. Mohr, Franklin Cty. C.P. No.
16CV007923.1 Six days later, he filed a second copy of the same complaint, which



1
 The complaint that Oliver filed in the Franklin County Court of Common Pleas on August 23,
2016, is available at https://fcdcfcjs.co.franklin.oh.us/CaseInformationOnline/imageLink
Processor.pdf?coords=bOh8SnaZZ5yAbboUKSMKNA7JXsq9%2FCOtxvk1ocW%2B0Y1Al2c6E
gQfCAdt0IlcsMQAkvCKQ03fufyXi%2F%2BDmC%2FALayK4I9CrlnI%2FHZMFXIlkBoIs6cc0




                                            5
                               SUPREME COURT OF OHIO




the Franklin County clerk assigned a separate case number. State ex rel. Oliver v.
Mohr, Franklin Cty. C.P. No. 16CV008161.2
        {¶ 14} The two cases were consolidated, and on December 12, 2016, the
trial judge denied the defendants’ motion for judgment on the pleadings but then
sua sponte dismissed the complaints as res judicata on the basis that the issue should
have been raised on direct appeal. Oliver appealed. But on September 5, 2017, the
court of appeals dismissed the appeal due to Oliver’s failure to file a merit brief.
State ex rel. Oliver v. Mohr, 10th Dist. Franklin No. 17AP-515 (Sept. 5, 2017).
        {¶ 15} The doctrine of res judicata provides that a final judgment rendered
on the merits by a court of competent jurisdiction is a complete bar to any
subsequent action on the same claim between the same parties or those in privity
with them. State ex rel. Jackson v. Ambrose, 151 Ohio St.3d 536, 2017-Ohio-8784,
90 N.E.3d 922, ¶ 13. We hold that the judgments in Oliver’s prior declaratory-
judgment actions do not operate as res judicata because they were not issued by a
court of competent jurisdiction.
        {¶ 16} R.C. 2721.03 provides that


        any person interested under a * * * writing constituting a contract or
        any person whose rights, status, or other legal relations are affected
        by a constitutional provision, statute, rule * * *, municipal
        ordinance, township resolution, contract, or franchise may have
        determined any question of construction or validity arising under the
        instrument, constitutional provision, statute, rule, ordinance,


%2F%2FwdFTb%2Fg652NDXPeGKppHiQdptKRro7Rsz%2Fh44TLyFUDZg1vKI1AS8tOs%3D
.
2
  The complaint that Oliver filed in the Franklin County Court of Common Pleas on August 29,
2016, is available at https://fcdcfcjs.co.franklin.oh.us/CaseInformationOnline/imageLink
Processor.pdf?coords=rzyioti1XS7I%2BkpGANQW2QZwdshfx3HkQUNN0KqEN1oICGCwX7
GtXRMy9tm1yr6YQ2tiRxQZ9ff0fmw1mL%2BTujpFhjMgAri%2BMjkdiC2bn3BtOUIHDsmZ1
Vnz5KtSSgqDhCg2Yi7FpwjqP07IrVJenlhKmRbTFOQ5Fumar3IxW2A%3D.




                                             6
                                 January Term, 2018




       resolution, contract, or franchise and obtain a declaration of rights,
       status, or other legal relations under it.


Oliver’s complaints in the common pleas court did not fall within the scope of the
Declaratory Judgment Act, R.C. 2721.01 et seq. He was not seeking a declaration
of his rights under the sentencing statute, because those rights were clear: his
sentence was to run concurrently to his prior sentence absent imposition by the
court of a consecutive sentence along with the requisite findings. What he was
seeking was a declaration of the meaning of the court’s sentencing entry, but the
statute does not provide for a declaration of rights under a sentencing entry. We
therefore hold that res judicata does not bar this petition.
       {¶ 17} We hold that Oliver has served his maximum sentence and is entitled
to immediate release.
                                                                        Writ granted.
       O’CONNOR, C.J., and FRENCH, DEWINE, and DEGENARO, JJ., concur.
       O’DONNELL, J., concurs in judgment only.
       KENNEDY, J., concurs in judgment only, with an opinion joined by FISCHER,
J.
                                _________________
       KENNEDY, J., concurring in judgment only.
       {¶ 18} Because the facts of this case demonstrate that petitioner, Tyrone
Oliver, has served his sentences in full, I agree with the majority that he is entitled
to a writ of habeas corpus ordering his immediate release from prison. We have
explained:


               Res judicata is a rule of fundamental and substantial justice,
       see State v. Szefcyk (1996), 77 Ohio St.3d 93, 95, 671 N.E.2d 233,
       citing Federated Dept. Stores, Inc. v. Moitie (1981), 452 U.S. 394,




                                           7
                             SUPREME COURT OF OHIO




       401, 101 S.Ct. 2424, 69 L.Ed.2d 103, that “ ‘is to be applied in
       particular situations as fairness and justice require, and that * * * is
       not to be applied so rigidly as to defeat the ends of justice or so as
       to work an injustice.’ ”


(Ellipsis sic.) State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d
568, ¶ 25 (superseded on other grounds by statute as stated in State v. Singleton,
124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958), quoting Grava v. Parkman
Twp., 73 Ohio St.3d 379, 386-387, 653 N.E.2d 226 (1995) (Douglas, J., dissenting),
quoting 46 American Jurisprudence 2d, Judgments, Section 522, 786-787 (1994).
       {¶ 19} The sentencing entry does not impose a consecutive sentence, and
that sentence ran concurrently with Oliver’s previously imposed sentence pursuant
to R.C. 2929.41(A).     He has now served those sentences and is entitled to
immediate release. Because it would be an injustice to permit Oliver to remain
incarcerated when he has fully served his sentence, res judicata does not bar relief.
       {¶ 20} For this reason, it is unnecessary to decide whether the Franklin
County Court of Common Pleas lacked jurisdiction to hear Oliver’s declaratory-
judgment action. That issue has not been raised or briefed by the parties, and as we
observed in Sizemore v. Smith, “justice is far better served when it has the benefit
of briefing, arguing, and lower court consideration before making a final
determination.” 6 Ohio St.3d 330, 333, 453 N.E.2d 632 (1983), fn. 2. Moreover,
it is not clear to me that the common pleas court lacked jurisdiction; actions for a
declaratory judgment are within the subject-matter jurisdiction of a court of
common pleas pursuant to the Declaratory Judgment Act, R.C. 2721.01 et seq., and
“[a] court’s subject-matter jurisdiction is determined without regard to the rights of
the individual parties involved in a particular case.” Bank of Am., N.A. v. Kuchta,
141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 19. Further, as the
majority’s analysis in this case reveals, review and application of R.C. 2929.41(A)




                                          8
                                January Term, 2018




is required to determine whether the sentencing entry in fact imposed consecutive
or concurrent sentences. This is true regardless of how well Oliver pleaded his
cause of action.
       {¶ 21} Accordingly, I concur in judgment only.
       FISCHER, J., concurs in the foregoing opinion.
                                _________________
       Tyrone Oliver, pro se.
       Michael DeWine, Attorney General, and Stephanie Watson, Principal
Assistant Attorney General, for respondent Turner.
                                _________________




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