[Cite as State v. Armstrong, 2018-Ohio-191.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :   Appellate Case No. 27413
                                                     :
 v.                                                  :   Trial Court Case No. 92-CR-196
                                                     :
 A.D. ARMSTRONG                                      :   (Criminal Appeal from
                                                     :    Common Pleas Court)
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                               OPINION

                           Rendered on the 19th day of January, 2018.

                                                ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellee

HILARY LERMAN, Atty. Reg. No. 0029975, 249 Wyoming Street, Dayton, Ohio 45409
     Attorney for Defendant-Appellant

                                               .............
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FROELICH, J.

         {¶ 1} A.D. Armstrong appeals from a judgment of the Montgomery County Court

of Common Pleas, which overruled his post-conviction “motion for court to consider

evidence that gun spec has already been served” and other post-conviction motions. For

the following reasons, the trial court’s judgment will be affirmed.

         {¶ 2} In 1992, Armstrong was convicted after a bench trial of aggravated burglary

and received a sentence of 6 to 25 years in prison. We affirmed his conviction on direct

appeal. State v. Armstrong, 2d Dist. Montgomery No. 13498, 1993 WL 294834 (Aug. 6,

1993).

         {¶ 3} The record does not reflect when Armstrong was released on parole, but his

filings with the trial court reflect that, in 2005, he was convicted of felonious assault with

a firearm specification. See State v. Armstrong, Montgomery C.P. No. 2004 CR 2162.

Armstrong was apparently sentenced to six years in prison for felonious assault with an

additional three-year term for the firearm specification.

         {¶ 4} While in prison, Armstrong has filed numerous pro se motions with the trial

court in this case (Case No. 1992 CR 196) related to the length of his incarceration. Of

relevance to this appeal, in 2016, Armstrong filed five motions, seeking (1) clarification of

his sentence, (2) appointment of counsel, (3) that the court consider evidence that his

gun specification had already been served, (4) removal to the Montgomery County Jail,

and (5) to add evidence to his case.

         {¶ 5} On December 28, 2016, the trial court overruled the motion to consider that

his gun specification had already been served and the other motions. The court stated,

in its entirety:
                                                                                -3-

      Defendant in this case has filed a Motion for Court to Consider

Evidence that Gun Spec has Already Been Served which he claims relates

a judgment against him for a gun specification attached to his conviction for

aggravated burglary in the above-captioned matter. The Court notes that

on May 16, 2016, the Defendant also filed an [sic] document entitled

Clerification (sic) of Sentence that merely related to documents that he had

submitted to the Second District Court of Appeals. Defendant also filed a

civil docket statement with the Second District Court of Appeals, which was

treated as an appeal by that Court and dismissed on May 5, 2016. The

Court notes that in his filings, Defendant appears to be challenging a

calculation of his sentence by the Ohio Department of Rehabilitation and

Correction, Bureau of Sentence Computation/Records [M]anagement

rather than the judgment imposed by this Court. The Court has reviewed

the docket of the above-captioned matter and finds that Defendant was

neither charged with, nor convicted of, a gun specification in this case.

Furthermore, this Court has no jurisdiction over the calculations of

sentences by the Ohio Department of Rehabilitation and Correction, Bureau

of Sentence Computation/ Records [Management].

      Accordingly, this Court hereby OVERRULES Defendant’s Motion for

Court to Consider Evidence that Gun Spec Has Already Been Served. In

rendering this Decision, the Court notes that, in addition to considering

Defendant’s motion, it has also considered the following filings made by

Defendant: (i) Motion to Show Cause, Clarification of the Record and
                                                                                        -4-

      Correction of Administrative Rule filed on April 6, 2016 (relating to his Court

      of Appeals filing and an unrelated case in Franklin County), (ii) Clerfication

      (sic) of Sentence filed on May 16, 2016 (relating to his appellate court case),

      and (iii) Motion to Add Evidence (which merely submits statutes and judicial

      opinions that Defendant believes are relevant to his claims). None of these

      filings affect the Court’s lack of jurisdiction over the computation of

      Defendant’s sentence by the Ohio Department of Rehabilitation and

      Correction, Bureau of Sentence Computation/Records [Management].

             Because Defendant’s Motion for Court to Consider Evidence that

      Gun Spec has Already Been Served is found to be without merit, the Court

      also hereby OVERRULES Defendant’s ancillary Motion for Removal to

      Montgomery County Jail for Defendant’s Court Date.

      {¶ 6} Armstrong appeals from the trial court’s judgment. In his appellate brief, he

argues that the trial court, at his original sentencing in 1992, did not inform him that he

would be under the control of the Parole Board upon his release from prison or of the

consequences if he violated the conditions of his parole. Armstrong specifically asserts

that the court should have informed him of the consequences of committing another

felony while on parole.

      {¶ 7} Armstrong raises issues on appeal that were not raised by motion in the trial

court. Armstrong cannot raise these new issues for the first time on appeal. See, e.g.,

State v. Anderson, 2017-Ohio-5656, 87 N.E.3d 1203, ¶ 4 (2d Dist.); Shields v. Englewood,

172 Ohio App.3d 620, 2007-Ohio-3165, 876 N.E.2d 972, ¶ 68 (2d Dist.) (“It is well settled

that a nonconstitutional issue raised for the first time on appeal is not properly before a
                                                                                        -5-


reviewing court”).

       {¶ 8} Furthermore, Armstrong’s motion in the trial court sought a ruling that he had

already served the sentence on his firearm specification. Armstrong was convicted of a

firearm specification in Case No. 2004 CR 2162, not in the 1992 case underlying this

appeal. The trial court had no authority to address Armstrong’s sentence in his 2004

case. And, the trial court properly concluded that Armstrong’s motion in this criminal

case was not the proper avenue for challenging the Ohio Department of Rehabilitation

and Correction’s calculation of his sentence expiration date.

       {¶ 9} Armstrong’s assignment of error is overruled. The trial court’s judgment will

be affirmed.

                                     .............



WELBAUM, P. J. and DONOVAN, J., concur.


Copies mailed to:

Mathias H. Heck
Andrew T. French
Hilary Lerman
Hon. Barbara P. Gorman
