[Cite as State ex rel. Davis v. Bur. Sentence Computation & Records Mgt., 2019-Ohio-4571.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


State ex rel. Anthony S. Davis,                        :

                Relator,                               :

v.                                                     :                        No. 18AP-957

Bureau of Sentence Computation                         :                  (REGULAR CALENDAR)
and Records Management,
                                                       :
                Respondent.
                                                       :




                                         D E C I S I O N

                                   Rendered on November 5, 2019


                On brief: Anthony S. Davis, pro se.

                On brief: Dave Yost, Attorney General, and George
                Horvath, for respondent.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

BROWN, J.
        {¶ 1} Relator, Anthony S. Davis, an inmate, has filed a pro se original action
requesting this court grant a writ of mandamus ordering respondent, Bureau of Sentence
Computation and Records Management (hereafter "respondent" or "BOSC"), to
"recalculate Relator's active term of imprisonment properly, issue to Relator Certificate Of
Releases on those sentences that have expired and not including and/or mixing
Reformatory sentences with Penitentiary sentences."
        {¶ 2} On February 1, 2019, respondent filed a motion for summary judgment,
asserting relator has challenged his sentence calculation on numerous occasions and
various courts, including this court, have determined his sentence was properly
No. 18AP-957                                                                                2


calculated. On April 11, 2019, relator filed a memorandum contra respondent's motion for
summary judgment.
       {¶ 3} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate of this court who issued the appended
decision, including findings of fact and conclusions of law, recommending this court grant
respondent's motion for summary judgment. The magistrate, citing this court's decision
in Davis v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-337, 2014-Ohio-4589,
concluded that "this court has already determined that respondent has properly
calculated relator's maximum sentence." (Mag. Decision at ¶ 24.)
       {¶ 4} Relator has filed pro se objections to the magistrate's decision,1 arguing
respondent is not entitled to summary judgment, and asserting he has "earned credits"
from 1995 that are not being acknowledged within the calculation of his current
maximum stated term.         Relator further argues that, contrary to the magistrate's
determination, he does not challenge any previous ruling of this court.
       {¶ 5} In response, respondent argues relator's objections ignore a documented
history of challenges he has made to his sentence previously addressed and rejected by
various courts. Respondent contends a sentence computation prepared by Lora Heiss, a
BOSC records management supervisor and employee of the Ohio Department of
Rehabilitation and Correction ("ODRC"), indicating relator's maximum expiration date
was computed to be November 26, 2032, was the subject of earlier litigation. More
specifically, respondent argues the sentencing calculation offered by Heiss was challenged
by relator in this court's decision in Davis, as well as in a petition for habeas corpus filed
in the Supreme Court of Ohio (State ex rel. Davis v. Sheldon, 142 Ohio St.3d 1462, 2015-
Ohio-1896), and in two habeas petitions filed in federal district court (Davis v.
Allen/Oakwood Corr. Inst., S.D. Ohio No. 2:15-cv-02935 (Nov. 6, 2015), and Davis v.
Allen/Oakwood Corr. Inst., S.D. Ohio No. 2:15-cv-02931 (Dec. 31, 2015)).
       {¶ 6} Pursuant to Civ.R. 56(C), summary judgment is proper when: "(1) no
genuine issue as to any material fact exists, (2) the party moving for summary judgment is
entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in
favor of the non-moving party, reasonable minds can only reach one conclusion which is
No. 18AP-957                                                                                               3


adverse to the non-moving party." Lee v. Cleveland, 151 Ohio App.3d 581, 2003-Ohio-
742, ¶ 16 (8th Dist.).
        {¶ 7} In recommending summary judgment in favor of respondent, the
magistrate found relator was essentially challenging the calculation of his maximum
sentence, an issue previously raised and decided in Davis. We agree.
        {¶ 8} In general, "[t]he doctrine of res judicata precludes 'relitigation of a point of
law or fact that was at issue in a former action between the same parties and was passed
upon by a court of competent jurisdiction.' " State ex rel. N. Broadway St. Assn. v.
Columbus, 10th Dist. No. 13AP-963, 2014-Ohio-2196, ¶ 12, quoting Reasoner v.
Columbus, 10th Dist. No. 04AP-800, 2005-Ohio-468, ¶ 5, citing State ex rel. Kroger Co.
v. Indus. Comm., 80 Ohio St.3d 649, 651 (1998). The doctrine of res judicata "consists of
two related concepts - - claim preclusion and issue preclusion." Fort Frye Teachers Assn.
v. State Emp. Relations Bd., 81 Ohio St.3d 392, 395 (1998). The concept of claim
preclusion "holds that a valid, final judgment rendered upon the merits bars all
subsequent actions based upon any claim arising out of the transaction or occurrence that
was the subject matter of the previous action." Id. By contrast, the doctrine of issue
preclusion, otherwise known as collateral estoppel, "holds that a fact or a point that was
actually and directly at issue in a previous action, and was passed upon and determined
by a court of competent jurisdiction, may not be drawn into question in a subsequent
action between the same parties or their privies, whether the cause of action in the two
actions be identical or different." Id.
        {¶ 9} Under the facts in Davis, relator brought a declaratory judgment action
against ODRC, requesting the trial court to declare his 1997 sentence expired and,
therefore, that it should be removed from his aggregate sentence thereby drastically
reducing his maximum aggregate sentence. ODRC filed a motion for summary judgment,
asserting that, based on BOSC's calculation, relator's maximum aggregate sentence did
not expire until 2032. The trial court granted ODRC's motion for summary judgment,
and relator appealed that determination. In Davis, this court affirmed the judgment of
the trial court granting summary judgment in favor of ODRC.


1On June 18, 2019, relator filed two pro se documents titled, respectively, "Objections to Magistrate's
Decision of 5/21/2019" and "Objection to Magistrate's Factual Finding(s)." Also on that date, relator filed a
document titled "Objection to Magistrate's Factual Finding, Affidavit."
No. 18AP-957                                                                             4


       {¶ 10} As noted, relator contends he does not challenge any previous
determination by this court. Relator argues that "[i]n the petition that is before this
Court, [he] details the fact(s) that he * * * has earned credits towards the termination of
Ohio Department of Rehabilitation and Correction * * * inmate number R-101-175 * * *
and the earned credits aforementioned are not being acknowledged within the
calculation(s) of Relator's current maximum stated term of imprisonment." (Objs. to
Mag.'s Factual Findings at 3.)
       {¶ 11} In Davis, however, we previously noted: "[a]lthough our calculations of
aggregate time do not reflect Davis' jail-time or earned credit, DRC did take jail-time and
earned credit into account when determining Davis' aggregate maximum sentence." Id. at
¶ 17, fn. 5. This court further noted that "due to the addition of 'lost time' and the 2001
consecutive sentence, the expiration date is now November 26, 2032." Id. Thus, the issue
as to the propriety of BOSC/ODRC's computation of relator's aggregate maximum
sentence, including the related issue of whether ODRC accounted for (i.e.,
"acknowledged") earned credits in its calculation, was necessarily resolved in Davis. We
therefore agree with the magistrate's conclusion that relator cannot relitigate the
calculation of his maximum sentence in this action.
       {¶ 12} Based on this court's independent review of the record, we find the
magistrate has properly determined the pertinent facts and applied the appropriate law.
We therefore overrule relator's objections to the magistrate's decision and adopt the
magistrate's decision as our own, including the findings of fact and conclusions of law
contained therein. In accordance with the magistrate's recommendation, respondent's
motion for summary judgment is granted, and relator's request for a writ of mandamus is
denied.
                                                                    Objections overruled;
                                                                             writ denied.

                          KLATT, P.J., and NELSON, J., concur.

                                 _________________
No. 18AP-957                                                                              5


                                      APPENDIX
                          IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT


The State ex rel. Anthony S. Davis,            :

               Relator,                        :

v.                                             :                   No. 18AP-957

Bureau of Sentence Computation                 :             (REGULAR CALENDAR)
and Records Management,
                                               :
               Respondent.
                                               :



                          MAGISTRATE'S DECISION

                                Rendered on May 21, 2019


               Anthony S. Davis, pro se.

               Dave Yost, Attorney General, and George Horvath, for
               respondent.


                            IN MANDAMUS
          ON RESPONDENT'S MOTION FOR SUMMARY JUDGMENT

       {¶ 13} Relator, Anthony S. Davis, has filed this original action requesting that this
court issue a writ of mandamus ordering respondent, Bureau of Sentence Computation
("BOSC") to properly calculate his sentence.
Findings of Fact:
       {¶ 14} 1. Relator is an inmate currently incarcerated at Allen Correctional
institution.
       {¶ 15} 2. On December 14, 2018, relator filed this original action again challenging
the determination of his sentence.
No. 18AP-957                                                                                6


       {¶ 16} 3. On February 1, 2019, respondent filed a motion for summary judgment
specifically asserting that relator has raised this same issue on numerous occasions and
various courts, including this court, have determined that his sentence has been properly
calculated.
       {¶ 17} 4. On April 11, 2019, relator filed a memorandum contra to respondent's
motion for summary judgment.
       {¶ 18} 5. The matter is currently before the magistrate on respondent's motion for
summary judgment and relator's response thereto.
Conclusions of Law:
       {¶ 19} For the reasons that follow, it is this magistrate's decision that this court
should grant summary judgment in favor of respondent.
       {¶ 20} 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).
       {¶ 21} A motion for summary judgment requires the moving party to set forth the
legal and factual basis supporting the motion. To do so, the moving party must identify
portions of the record which demonstrate the absence of a genuine issue of material fact.
Dresher v. Burt, 75 Ohio St.3d 280 (1996). Accordingly, any party moving for summary
judgment must satisfy a three-prong inquiry showing: (1) that there is no genuine issue as
to any material facts; (2) that the parties are entitled to judgment as a matter of law; and
(3) that reasonable minds can come to but one conclusion, which conclusion is adverse to
the party against whom the motion for summary judgment is made. Harless v. Willis
Day Warehousing Co., 54 Ohio St.2d 64 (1978).
       {¶ 22} In arguing that relator has already raised this issue and the matter has been
decided, respondent directs this court's attention to its decision in Davis v. Ohio Dept. of
Rehab. & Corr., 10th Dist. No. 14AP-337, 2014-Ohio-4589. That case was an appeal from
a judgment of the Franklin County Court of Common Pleas which granted summary
judgment in favor of the Department of Rehabilitation and Correction.             This court
summarized the underlying facts as follows:
No. 18AP-957                                                                    7


               Since 1977, Davis has spent more time inside Ohio's prison
               system than out. Davis was first incarcerated on May 20,
               1977, after the Franklin County Court of Common Pleas
               sentenced him to 4 to 25 years imprisonment for aggravated
               burglary. On November 12, 1982, after serving over five
               years, Davis was paroled. Davis, however, reoffended in
               1985. He was convicted of theft and forgery, for which he
               received concurrent 18-month sentences. Davis returned to
               prison on October 18, 1985, and he stayed there until he was
               paroled on August 15, 1986.

               Davis remained out of prison only a few months. In early
               1987, Davis pleaded guilty to breaking and entering, and the
               Guernsey County Court of Common Pleas sentenced him to
               one year imprisonment. The ensuring stretch of
               incarceration lasted over two years: from January 20, 1987
               until Davis' April 3, 1989 parole. Davis, again, committed
               crimes shortly after his release. Just six months after
               receiving parole, Davis landed back in prison with a new
               sentence of 5 to 25 years for aggravated burglary.1Link to the
               text of the note Davis then served over six years.

               Paroled on December 22, 1995, Davis soon picked up two
               new convictions. For the first, the Ashland County Court of
               Common Pleas sentenced Davis to a total of five years for
               breaking and entering, theft, and possession of criminal
               tools. For the second, the Pickaway County Court of
               Common Pleas sentenced Davis to one year for breaking and
               entering, but the court allowed Davis to serve that sentence
               concurrently with the five-year sentence from the Ashland
               County court.

               The Ashland County conviction resulted in Davis'
               readmission to prison on October 1, 1996. After serving a
               little over three years, Davis was paroled on February 18,
               2000. By January 5, 2001, Davis was back in prison as a
               parole violator. On September 28, 2001, the Richland
               County Court of Common Pleas convicted Davis of failure to
               appear and forgery, and it sentenced Davis to ten months on
               each count to be served concurrently to each other "but
               consecutive to his other cases." (R. 2, exhibit L.)

               Although Davis had reoffended each of the five times he had
               been paroled previously, Davis was again paroled on
               January 2, 2003. Thereafter, Davis committed additional
               crimes on parole. He returned to prison on February 11,
               2005 with a new nine-year total sentence for breaking and
               entering, possession of criminal tools, and burglary.
No. 18AP-957                                                                        8


                 Additionally, as a result of his criminal activities during this
                 last period of parole, Davis was convicted of: (1) four counts
                 of breaking and entering, for which he received a one-year
                 sentence; (2) breaking and entering, for which he received a
                 six-month sentence; (3) possession of drugs, receiving stolen
                 property, breaking and entering, and theft, for which he
                 received a one-year sentence; and (4) engaging in corrupt
                 activities, for which he received a one-year sentence.

                 Currently imprisoned, Davis filed the instant action seeking
                 a declaratory judgment. In his complaint, Davis requested
                 that the trial court declare that his 1977 sentence had expired
                 and must be removed from his active sentence.

                 Both Davis and DRC moved for summary judgment. In its
                 motion, DRC explained that, prior to the July 1, 1996
                 effective date of Am.Sub.S.B. No. 2, R.C. 2929.41(B)(3)
                 mandated that probationers, parolees, and escapees who
                 committed felonies had to serve any sentence of
                 imprisonment consecutively to any other previous sentence
                 of imprisonment. Thus, prior to July 1, 1996, each time Davis
                 committed a felony on parole, his new sentence was
                 aggregated with his previous sentences. By the time Davis
                 returned to prison on October 1, 1996, his aggregate sentence
                 was so lengthy that his maximum sentence would not expire
                 until October 6, 2031. Assessments of "lost time" and the
                 2001 consecutive sentence from the Richland County court
                 extended that date to November 26, 2032. Based on its
                 calculation of Davis' maximum sentence, DRC argued that
                 the trial court could not declare that Davis' sentence had
                 expired.

                 In his summary judgment motion and in response to DRC's
                 motion, Davis contended that DRC could not aggregate his
                 sentences. Alternatively, Davis argued that the 1977 sentence
                 had to be removed from his aggregate sentence because it
                 had expired.

                 The trial court granted DRC's motion and denied Davis'
                 motion. The court found that DRC had properly aggregated
                 Davis' sentences, and, consequently, Davis' maximum term
                 of imprisonment had not yet expired. On April 15, 2014, the
                 trial court entered judgment in DRC's favor.

Id. at ¶ 2-10.
No. 18AP-957                                                                              9


       {¶ 23} Relator's assignments of error challenged the trial court's refusal to declare
that his 1977 sentence had expired. The removal of that sentence from relator's aggregate
sentence would drastically decrease his maximum aggregate sentence. This court found
that relator's argument lacked merit.
       {¶ 24} In his mandamus complaint, relator argues that respondent has been
miscalculating his sentence since 1985. Relator details what he alleges are the numerous
errors made by respondent since 1985 which have resulted in respondent miscalculating
his maximum sentence. The magistrate disagrees. As respondent asserts, this court has
already determined that respondent has properly calculated relator's maximum sentence.
As this court explained:
               From January 1, 1974, when Am.Sub.H.B. No. 511 became
               effective, until July 1, 1996, when Am.Sub.S.B. No. 2 became
               effective, R.C. 2929.41(B) provided:

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

               ***

               (3) When it is imposed for a new felony committed by a
               probationer, parolee, or escapee[.]
               Thus, "sentences for crimes committed while on parole [had
               to] be served consecutively to sentences for crimes
               committed before the parole violation." State ex rel.
               Thompson v. Kelly, 137 Ohio St. 3d 32, 2013-Ohio-2444, ¶ 8,
               997 N.E.2d 498; accord State ex rel. Ranzy v. Coyle, 81 Ohio
               St.3d 109, 110, 1998 Ohio 648, 689 N.E.2d 563 (1998); State
               ex rel. Foster v. Ohio Adult Parole Auth., 65 Ohio St.3d 456,
               457, 1992 Ohio 82, 605 N.E.2d 26 (1992).

               If, pursuant to former R.C. 2929.41(B)(3), a prisoner must
               serve consecutive indefinite sentences for felonies, the
               minimum term to be served is the aggregate of the
               consecutive minimum terms, and the maximum term to be
               served is the aggregate of the consecutive maximum terms.
               Former R.C. 2929.41(C)(2); Ohio Adm.Code 5120-2-
               03(E)(1). For consecutive definite sentences, the term to be
               served is the aggregate of the definite terms imposed. Ohio
               Adm.Code 5120-2-03(E)(2). When a definite term of
               imprisonment was imposed consecutively to an indefinite
               term, the prisoner must serve the definite term first,
               followed by the indefinite term. Former R.C. 2929.41(C)(4);
               Ohio Adm.Code 5120-2-03(E)(5). While the prisoner serves
No. 18AP-957                                                                      10


               the definite term, the indefinite term is tolled. State ex rel.
               Foster v. Ohio State Adult Parole Auth., 10th Dist. No. 91AP-
               1109, 1992 Ohio App. LEXIS 4065 (Aug. 6, 1992), aff'd, 65
               Ohio St.3d 456, 1992 Ohio 82, 605 N.E.2d 26 (1992).

               Here, application of former R.C. 2929.41(B)(3) rendered the
               five sentences Davis received from 1977 to 1996 consecutive
               to each other. DRC aggregated Davis' 1977 sentence (for 4
               to 25 years imprisonment) with his 1989 sentence (for 5 to
               25 years) for a total indefinite term of 9 to 50 years. Davis'
               1985 sentence (18 months), 1987 sentence (1 year), and 1996
               sentence (5 years) amounted to an aggregate definite term
               of 7 years and 6 months. Based on these consecutive
               sentences, DRC calculated that Davis' aggregate maximum
               sentence would not expire until October 6, 2031.

               Davis does not argue that DRC erroneously interpreted R.C.
               2929.41 or that DRC made a mathematical error in
               computing the expiration of his aggregate maximum
               sentence. Rather, Davis claims that his 1985, 1987, 1989, and
               1996 sentences were served concurrently with his 1977
               sentence. Apparently, Davis deduced this from comparing
               the length of each sentence to the length of time he served
               after that sentence and prior to parole. Eligibility for parole,
               however, has no effect on whether Davis must serve his 1977,
               1985, 1987, 1989, and 1996 sentences concurrently or
               consecutively. Former R.C. 2929.41(B)(3) decides that issue.

               ***

               As a final matter, we consider whether Davis could receive
               the remedy he is seeking: the severance of his 1977 sentence
               from his aggregate sentence. This remedy is unavailable due
               to R.C. 5145.01, which provides that a prisoner serving
               consecutive sentences "shall be held to be serving one
               continuous term of imprisonment." Accord State ex rel.
               Perotti v. Shoemaker, 10th Dist. No. 89AP-1424, 1992 Ohio
               App. LEXIS 1274 (Mar. 17, 1992) ("R.C. 5145.01 recites that,
               if a prisoner is issued consecutive sentences for two or more
               separate felonies, to be served at a penitentiary, the prisoner
               shall be held to be serving one consecutive sentence."). "By
               stating that consecutive sentences are to be aggregated, and
               are to be served as 'one continuous term,' [former R.C.
               2929.41 and R.C. 5145.01] demonstrate an intent to make
               the sentences inseverable." Klostermeyer v. Ohio Dept. of
               Rehab. & Corr., 8th Dist. No. 79248, 2001 Ohio App. LEXIS
               5324 (Nov. 29, 2001). Thus, until the aggregate sentence is
               discharged, none of the sentences composing the aggregate
No. 18AP-957                                                                               11


               may be discharged. Id. The trial court, therefore, properly
               refused to sever Davis' 1977 sentence from his aggregate
               sentence.

Id. at ¶ 15-18, 21.

       {¶ 25} Relator argues that the issue he raises now is distinguishable from the issue
raised in the aforementioned case because relator is currently asking this court to order
respondent to do its job correctly. However, in the prior case, this court did determine
that respondent had properly calculated relator's maximum sentence. As such, the prior
case does apply here.
       {¶ 26} Based on the foregoing, it is this magistrate's decision that this court should
grant respondent's motion for summary judgment. Further, inasmuch as relator has not
prevailed, this court should order the court to make periodic deductions from relator's
inmate account pursuant to statute.


                                               /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).
