[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Sanford v. Bur. of Sentence Computation, Slip Opinion No. 2017-Ohio-8723.]




                                           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. 2017-OHIO-8723
      THE STATE EX REL. SANFORD, APPELLANT, v. BUREAU OF SENTENCE
                               COMPUTATION, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
  may be cited as State ex rel. Sanford v. Bur. of Sentence Computation, Slip
                             Opinion No. 2017-Ohio-8723.]
Mandamus—Writ of mandamus sought to compel Bureau of Sentence computation
        to calculate time served under a state sentence as if the sentence were
        served concurrently with a federal sentence—Dismissal of petition for writ
        affirmed.
   (No. 2017-0014—Submitted June 20, 2017—Decided November 30, 2017.)
               APPEAL from the Court of Appeals for Franklin County,
                             No. 16AP-276, 2016-Ohio-7872.
                                    ________________
        Per Curiam.
        {¶ 1} Appellant, John W. Sanford, appeals the Tenth District Court of
Appeals’ dismissal of his petition for a writ of mandamus. We affirm.
                                  SUPREME COURT OF OHIO




                                          Background
         {¶ 2} Sanford’s complaint sets forth the following facts, which, for
purposes of the motion to dismiss, the court of appeals was required to accept as
true. In June 1992, Sanford was convicted of murder in Wood County, Ohio. State
v. Sanford, Wood C.P. No. 91-CR-238 (June 5, 1992). The judgment entry
sentenced Sanford to the custody of the Ohio Department of Rehabilitation and
Correction to be imprisoned for an indefinite term of a minimum of 15 years to life,
to be served consecutively to the sentence defendant was then serving on federal
charges.
         {¶ 3} On February 19, 2016, Sanford commenced the present action against
appellee, Bureau of Sentence Computation (“BSC”), in the Tenth District Court of
Appeals.1 Sanford requested a writ of mandamus to compel BSC to calculate his
time served under his state sentence as if the sentence were being served
concurrently with—not consecutively to—the federal sentence.
         {¶ 4} BSC filed a motion to dismiss. The court of appeals accepted the
magistrate’s recommendation to grant the motion. Sanford timely appealed.
                                             Analysis
         {¶ 5} At the time of Sanford’s sentencing, former R.C. 2929.41, 143 Ohio
Laws, Part I, 1307, 1438, provided:


                  (A) 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. In any case, a sentence of

1
 The case was initially filed in the Sixth District Court of Appeals as State ex rel. Sanford v. Bur.
of Sentence Computation, 6th Dist. No. 2016 WD 0008, but it was dismissed without prejudice.
Sanford appears to have refiled the same document in the Tenth District without changing the
caption.




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                               January Term, 2017




       imprisonment for misdemeanor shall be served concurrently with a
       sentence of imprisonment for felony served in a state or federal
       penal or reformatory institution.
               (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.


Thus, under that law, a sentencing court could designate a second sentence to run
consecutively to “any other sentence of imprisonment.” Sanford contends that as a
matter of statutory definition, incarceration on a federal crime did not qualify as
“any other sentence of imprisonment.”
       {¶ 6} The plain language of former R.C. 2929.41 disproves Sanford’s
claim. The first sentence in division (A) referred to “a sentence of imprisonment
imposed by * * * the United States.” Thus, the statute plainly included federal
sentences as one type of “sentence of imprisonment.” Sanford’s argument would
prevail only if use of the phrase in division (B) was construed differently than the
use of the same phrase in division (A), which is an absurd suggestion.
       {¶ 7} Sanford’s reliance on R.C. 1.05(A) to reach a contrary result is
misplaced. That provision defines “imprisoned” as confinement in a state, county,
municipal, or other nonfederal facility.       But R.C. 1.05(A) has a caveat: the
definition it provides applies “unless the context otherwise requires.” As shown in
the previous paragraph, the context of former R.C. 2929.41 requires otherwise.
       {¶ 8} Alternatively, Sanford points to former R.C. 2929.41(C)(1), 143 Ohio
Laws, Part I, at 1439, which spells out how to calculate minimum and maximum
terms “[w]hen consecutive sentences of imprisonment are imposed for felony under
division (B)(1).” Sanford assumes that “imposed for felony” meant a felony under




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                             SUPREME COURT OF OHIO




Ohio law and therefore subdivision (B)(1) could not apply to a federal felony
sentence. But of course nothing in subdivision (C)(1) limits the consecutive
sentences to only those circumstances involving two state convictions.
       {¶ 9} Finally, Sanford argues that running his two sentences consecutively
violates equal protection and due process. Sanford raised this argument for the first
time in his objections to the magistrate’s recommendation. He did not raise
constitutional arguments in his complaint or in his pleadings in opposition to the
motion to dismiss. In an original action for mandamus, an issue raised for the first
time in objections to the magistrate’s decision, without having appeared in the
complaint, has been waived. State ex rel. Durbin v. Indus. Comm., 10th Dist.
Franklin No. 10AP-712, 2012-Ohio-664, ¶ 10, and cases cited therein.
       {¶ 10} We affirm the judgment of the court of appeals.
                                                                Judgment affirmed.
       O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, O’NEILL, FISCHER,
and DEWINE, JJ., concur.
                               _________________
       John W. Sanford, pro se.
       Michael DeWine, Attorney General, and Kelly N. Brogan, Assistant
Attorney General, for appellee.
                               _________________




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