[Cite as State ex rel. Sanford v. Bur. of Sentence Computation, 2016-Ohio-7872.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

The State ex rel. John W. Sanford,                     :

                 Relator,                              :

v.                                                     :                           No. 16AP-276

Bureau of Sentence Computation,                        :                   (REGULAR CALENDAR)

                 Respondent.                           :


                                            D E C I S I O N

                                   Rendered on November 22, 2016


                 John W. Sanford, pro se.

                 Michael DeWine, Attorney General, and Kelly N. Brogan, for
                 respondent.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

TYACK, J.

        {¶ 1} John W. Sanford filed this action in mandamus, seeking a writ to compel
the Bureau of Sentence Computation ("BOSC") of the Ohio Department of Rehabilitation
and Correction ("ODRC") to refrain from designating his state and federal prison
sentences as an aggregate sentence and therefore to compel BOSC to consider his
sentences as concurrent sentences.
        {¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case
was referred to a magistrate to conduct appropriate proceedings. Counsel for ODRC filed
a motion to dismiss the mandamus action.
        {¶ 3} The assigned magistrate issued a magistrate's decision, appended hereto,
addressing the merits of the motion to dismiss.
No. 16AP-276                                                                                2


         {¶ 4} The magistrate's decision includes a recommendation that we grant the
motion.
         {¶ 5} Sanford has filed objections to the magistrate's decision. The case is now
before the court for a full, independent review of the merits of the motion to dismiss.
         {¶ 6} In 1992, Sanford was convicted of the offense of murder and sentenced to
the mandatory term of incarceration of 15 years to life. The state court judge who
sentenced Sanford ordered that the sentence for murder be run consecutively to the
sentence Sanford was already serving on a federal conviction. Twenty-four years later,
Sanford filed this action in mandamus attacking the part of the sentencing judgment
entry which ordered that the sentences be served consecutively.
         {¶ 7} A special writ of mandamus will not issue when the law provides a remedy
through the ordinary course of law. A direct appeal is such a remedy. If Sanford felt his
sentence was somehow wrong or illegal, he should have appealed in 1992. He did not.
         {¶ 8} ODRC through BOSC did nothing other than attempt to comply with the
order of the Wood County Court of Common Pleas.
         {¶ 9} Sanford argues that an Ohio court cannot order that a state sentence run
consecutively to a federal sentence of imprisonment.            Sanford is wrong.         R.C.
2929.41(B)(1) clearly allows consecutive sentences under such circumstances.
         {¶ 10} Ohio law indicates that criminal sentences are deemed to be concurrent if
the sentencing judge does not specify that sentences are to be served consecutively. Here,
the sentencing judge specified that the Ohio sentence was to be served consecutively to
the federal sentences.
         {¶ 11} Since the state of Ohio and the United States government are separate
sovereigns, sentences given by the two sovereigns for violations of their criminal statutes
are not "aggregate sentences." As a result, the argument by Sanford that the separate
violations are to be aggregated for purposes of Ohio sentencing is an argument without
merit.
         {¶ 12} We overrule Sanford's objections to the magistrate's decision.            We,
therefore, adopt the findings of fact and conclusions of law in the magistrate's decision as
supplemented herein.
No. 16AP-276                                                                       3


     {¶ 13} As a result of the above, we sustain the motion to dismiss this action in
mandamus.
                                              Objections overruled; motion to dismiss
                                                           sustained. Case dismissed.

                     DORRIAN, P.J., and BROWN, J., concur.
No. 16AP-276                                                                             4


                                APPENDIX
                         IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT


The State ex rel. John W. Sanford,              :

             Relator,                           :

v.                                              :                 No. 16AP-276

Bureau of Sentence Computation,                 :           (REGULAR CALENDAR)

             Respondent.                        :



                          MAGISTRATE'S DECISION

                               Rendered on July 29, 2016



             John W. Sanford, pro se.

             Michael DeWine, Attorney General, and Kelly N. Brogan, for
             respondent.


                                  IN MANDAMUS
                        ON RESPONDENT'S MOTION TO DISMISS

      {¶ 14} Relator, John W. Sanford, has filed this original action requesting this court
issue a writ of mandamus ordering respondent, Ohio Department of Rehabilitation and
Corrections Bureau of Sentence Computation ("bureau"), to "(1), refrain from designating
my state and federal sentence as an 'aggregate sentence' and (2), compute the state and
federal sentences to be served concurrently."
No. 16AP-276                                                                                5


Findings of Fact:
       {¶ 15} 1. Relator is an inmate currently incarcerated at North Central Correctional
Institution.
       {¶ 16} 2. On June 1, 1992, relator was found guilty of the 1989 murder of George
Leon Washington and sentenced to serve a prison term of 15 years to life "to be served
consecutively to the sentence Defendant is presently serving on federal charges."
       {¶ 17} 3. On April 12, 2016, relator filed a petition for a writ of mandamus asking
this court to compel the bureau to "(1), refrain from designating my state and federal
sentence as an 'aggregate sentence' and (2), compute the state and federal sentences to be
served concurrently."
       {¶ 18} 4. On June 2, 2016, respondent filed a motion to dismiss.
       {¶ 19} 5. On June 17, 2016 and, on July 5, 2016, relator filed replies to
respondent's motion to dismiss.
Conclusions of Law:
       {¶ 20} For the reasons that follow, it is this magistrate's decision that this court
should grant respondent's motion and dismiss relator's petition.
       {¶ 21} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 22} Relator argues that the bureau cannot combine his state and federal
sentences to form an aggregate. In support of his argument, relator first asserts that, by
statutory definition, his federal sentence is not a " 'sentence of imprisonment.' "Because
his federal sentence is not a sentence of imprisonment, relator argues that it cannot be
served consecutively to any other sentence of imprisonment. Relator asserts:
               O.A.C. 5120-2-03 states in pertinent part:

               (A) This rule applies only to prison terms imposed
               for offenses committed before July 1, 1996. Any
               sentence of imprisonment to the department of
               rehabilitation and correction shall be served
No. 16AP-276                                                             6


           consecutively  to    any    other    sentence           of
           imprisonment in the following cases:

           (1) The trial court specifies that it is to be served
           consecutively to another sentence.

           Former O.R.C. 2929.41 states in pertinent part:
           (B) A sentence of imprisonment shall be served
           consecutively  to    any    other     sentence  of
           imprisonment in the following cases:

           (1) When the trial court specifies that it is to be
           served consecutively.

           The statutory definition and these provisions makes it very
           clear that the reference to "consecutively to any other
           'sentence of imprisonment' " means a sentence to the Ohio
           Department of Rehabilitation and [C]orrections, and not a
           sentence from another state or a federal sentence.
           Accordingly, in these circumstances, Respondents are
           enjoined with a duty statutorily and under Ohio
           Administrative Code to compute Relator's state sentence to
           be served concurrently with the federal sentence.

           O.A.C. 5120-2-03(B) directs Respondents:

           "Any sentence of imprisonment to the department
           of rehabilitation and correction shall be served
           concurrently, not aggregated, with any other
           sentence of imprisonment imposed by a court of this
           state, another state, or of the United States, except
           as provided in paragraph A if [sic] this rule."

           Former   O.R.C.        2929.41(A)(1)      also     directs
           Respondents:

           "Except as provided in division (B) of this section, a
           sentence of imprisonment shall be served
           concurrently    with    any    other   sentence     of
           imprisonment imposed by a court of this state,
           another state, or the United States."

           Because the federal sentence is not a "sentence of
           imprisonment" that can be aggregated to form an aggregate
           minimum, there is no other option for Respondents under
           Ohio law but to calculate the sentences to be served
No. 16AP-276                                                                              7


              concurrently. The phrase "not aggregated" used in section
              5120-2-03(B) can strongly be inferred that when two (2)
              sentences are not or cannot be aggregated, then they shall be
              served concurrently. Here, the Respondents are doing
              neither- not applying the aggregate process to the sentences,
              nor running the sentences concurrently.

(Emphasis sic.)

       {¶ 23} A motion to dismiss for failure to state a claim upon which relief can be
granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v.
Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (1992). In reviewing the complaint, the
court must take all the material allegations as admitted and construe all reasonable
inferences in favor of the nonmoving party. Id.
       {¶ 24} In order for a court to dismiss a complaint for failure to state a claim upon
which relief can be granted, it must appear beyond doubt from the complaint that relator
can prove no set of facts entitling him to recovery. O'Brien v. Univ. Community Tenants
Union, 42 Ohio St.2d 242 (1975). As such, a complaint for writ of mandamus is not
subject to dismissal under Civ.R. 12(B)(6) if the complaint alleges the existence of a legal
duty by the respondent and the lack of an adequate remedy at law for relator with
sufficient particularity to put the respondent on notice of the substance of the claim being
asserted against it, and it appears that relator might prove some set of facts entitling him
to relief. State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn., 72 Ohio St.3d
94 (1995). For the following reasons, respondent's motion should be granted and relator's
complaint should be dismissed.
       {¶ 25} Relator is misapplying the above statute and legislation by focusing on one
section and excluding another section. Relator places emphasis on that portion of the
Ohio Revised Code and the Ohio Administrative Code which indicate that sentences are to
be served concurrently and not aggregated, and specifically omits any consideration of the
fact that both the Revised Code and the Administrative Code give the trial court discretion
to order that sentences be served consecutively to any other sentence. The reality is that
both the Revised Code and the Administrative Code provide that, where not otherwise
indicated by a trial court, the bureau cannot, of its own accord, make the determination
that certain sentences will be served consecutively. Where it is not specified, sentences
No. 16AP-276                                                                                  8


are presumed to be served concurrently. However, R.C. 2929.41(B) provides an exception
to the (A)(1) provision that sentences are to be served concurrently and that exception is
whenever a trial court specifies that the sentence is to be served consecutively.
       {¶ 26} As indicated in the findings of fact, at the time relator was sentenced to
murder, the trial court ordered that his term of imprisonment would be 15 years to life "to
be served consecutively to the sentence Defendant is presently serving on federal
charges." The trial court applied R.C. 2929.41(B)(1) and ordered that relator's sentence be
served consecutively to his federal sentence. Clearly, this was within the discretion of the
trial court and, if relator had any issue with this, he could have raised this on appeal.
Further, respondent has properly followed the trial court's directive by computing
relator's sentence by noting that the sentences are to be served consecutively.
       {¶ 27} Finding that respondent has properly followed the trial court's directive that
relator's sentence of 15 years to life is to be served consecutively to his federal sentence, it
is this magistrate's decision that relator can not demonstrate that respondent abused its
discretion and this court should grant the motion of respondent and dismiss relator's
petition.


                                               /S/ MAGISTRATE
                                               STEPHANIE BISCA




                               NOTICE TO THE PARTIES

              Civ.R. 53(D)(3)(a)(iii) provides that 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 timely and specifically
              objects to that factual finding or legal conclusion as required
              by Civ.R. 53(D)(3)(b).
