[Cite as State ex rel. Crowley v. Dept. of Rehab. & Corr., 2018-Ohio-2526.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

The State ex rel. Bryant Crowley,                     :

                 Relator,                             :

v.                                                    :                       No. 17AP-198

Ohio Department of Rehabilitation and                 :                (REGULAR CALENDAR)
Correction,
                                                      :
                 Respondent.
                                                      :


                                          D E C I S I O N

                                       Rendered on June 28, 2018


                 Bryant Crowley, pro se.

                 Michael DeWine, Attorney General, and Andrea K. Boyd, for
                 respondent.


                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION
TYACK, J.
        {¶ 1} Bryant Crowley, an inmate at Ross Correctional Institution ("RCI") filed this
action in mandamus, seeking a writ to compel the Ohio Department of Rehabilitation and
Correction ("ODRC") to amend his maximum expiration date.
        {¶ 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. The parties stipulated the
pertinent evidence and filed briefs. The magistrate then issued a magistrate's decision,
appended hereto, which contains detailed findings of fact and conclusions of law. The
magistrate's decision includes a recommendation that we deny the requested writ.
        {¶ 3} Counsel for Crowley, before attempting to withdraw as counsel, filed
objections on his behalf.
No. 17AP-198                                                                            2


      {¶ 4} Based on our independent review of the evidence in the record, we overrule
relator's objections and we adopt the findings of fact and conclusions of law contained in
the magistrate's decision. As a result, we deny the request for a writ of mandamus.
      {¶ 5} We also permit counsel for Crowley to withdraw as counsel.
                                                 Motion to withdraw as counsel granted;
                                                      Objections overruled; writ denied.

                   BROWN, P.J., and LUPER SCHUSTER, J., concur.
No. 17AP-198                                                                            3


                                    APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

The State ex rel. Bryant Crowley,             :

              Relator,                        :

v.                                            :                  No. 17AP-198

Ohio Department of Rehabilitation &           :             (REGULAR CALENDAR)
Correction,
                                              :
              Respondent.
                                              :


                          MAGISTRATE'S DECISION

                                Rendered on March 5, 2018


              Matthew J. Barbato, for relator.

              Michael DeWine, Attorney General, and Andrea K. Boyd, for
              respondent.


                                      IN MANDAMUS

       {¶ 6} In this original action, relator, Bryant Crowley, an inmate of the Ross
Correctional Institution ("RCI"), requests a writ of mandamus ordering respondent, Ohio
Department of Rehabilitation and Correction ("ODRC" or "respondent"), to amend its
calculation of the sentence maximum expiration date such that the date is listed on its
records as October 16, 2017 rather than April 12, 2022.
Findings of Fact:
       {¶ 7} 1. On September 25, 2017, pursuant to an order of the magistrate, relator and
respondent jointly filed the stipulation of evidence.
No. 17AP-198                                                                                4


       {¶ 8} 2. Among the stipulated documents is the affidavit of Janet Couts executed
September 7, 2017. The Couts affidavit avers:
              [Two] I am currently employed by the Ohio Department of
              Rehabilitation and Correction (ODRC) as a Correction
              Records Sentence Computation Auditor with the Bureau of
              Sentence Computation (BOSC). My duties include
              interpreting official court documents and other related papers
              in the possession of the ODRC and calculating offenders'
              sentences and release dates.

              [Three] I created the attached sentence computation, dated
              September 7, 2017, for Inmate Bryant Crowley, A515-336, at
              the request of Assistant Attorney General Andrea Boyd. To
              create this computation, I reviewed BOSC's records pertaining
              to Inmate Crowley. True and accurate copies of some of those
              records are attached to the sentence computation.

       {¶ 9} 3. Appended to the affidavit is a three-page memorandum that Couts
referenced as "the attached sentence computation."          Dated September 7, 2017, the
memorandum is addressed to Andrea Boyd who is the assistant attorney general assigned
as counsel for respondent in this action.
       {¶ 10} 4. In respondent's brief filed in this action on November 7, 2017, under the
caption "Procedural Posture and Factual Background," respondent's counsel sets forth in
detail the relevant facts to be considered. That portion of respondent's brief is derived from
the Couts affidavit. The magistrate adopts the following portion of respondent's brief as
the magistrate's findings of fact:
              Relator has been incarcerated a total of four times beginning
              in 1993, under three different inmate numbers, for various
              criminal convictions. * * * Relator was first admitted to the
              custody of ODRC on March 29, 1993, for a conviction of
              Complicity to Aggravated Robbery, in Clark County Case No.
              92-CR-6[3]2. * * * Relator was sentenced to serve an
              indefinite sentence of six (6) to twenty-five (25) years. * * *
              Relator was paroled for the first time on September 20, 2001.
              * * * At this time, the maximum expiration date of the only
              sentence for which he was under supervision of the Adult
              Parole Authority─Case No. 92-CR-6[3]2─was October 16,
              2017. * * *
No. 17AP-198                                                                    5


           On October 30, 2002, Relator was admitted to the custody of
           ODRC for the second time for a Forgery conviction in Clark
           County Case No. 02-CR-309. * * * Relator received an eleven
           (11) month sentence for this conviction. * * * As a result,
           Relator's parole was revoked, and his indefinite sentence of 6
           to 25 years in Case No. 92-CR-632 was re-imposed. * * *

           After serving the entirety of the 11 month sentence, Relator
           was granted parole for a second time in Case No. 92-CR-632
           on January 12, 2004. * * * On May 12, 2004, Relator was
           returned to the custody of ODRC because he again violated the
           terms of his parole in Case No. 92-CR-632. * * * Relator was
           granted parole for the third time on January 3, 2005. * * *
           Because Relator had been incarcerated on Case No. 92-CR-
           632, the maximum expiration date of that indefinite sentence
           was still October 16, 2017. * * *

           On January 23, 2006, Relator was admitted to the custody of
           ODRC for a fourth time * * * following a Burglary conviction
           in Clark County Case No. 05-CR-819. * * * In addition to the
           two (2) year sentence that he received as a result of this newest
           conviction, Relator's parole was revoked in Case No. 92-CR-
           632, and his indefinite 6 to 25 year sentence was again re-
           imposed. * * *

           While incarcerated in ODRC on the two year definite sentence
           in 05-CR-819 and the balance of his indefinite sentence in 92-
           CR-6[3]2, Relator received three additional prison sentences
           for crimes he committed while on parole. * * * On May 5,
           2006, Relator received a two and one half (2 1/2) year
           sentence for two Assault convictions, which was ordered to be
           served consecutively to the prison term he was currently
           serving. * * *

           On February 26, 2007, Relator received an 18 month sentence
           for a conviction of Aggravated Assault, to run concurrently to
           the 2-year definite sentence that was just imposed for his
           Burglary conviction in Clark County Case No. 05-CR-819. * * *
           Lastly, on July 5, 2007, Relator received a two (2) year
           sentence as a result of a Felonious Assault conviction, ordered
           to be served consecutively to his current prison sentence. * * *
           Given these additional sentences, Relator's total prison term
           consists of a definite 6 year and 6 month sentence and a 6 to
           25 year indefinite sentence. * * * As a result of these additional
           convictions, and the orders for consecutive sentencing on
No. 17AP-198                                                                               6


              several of the cases, the maximum expiration of all of Relator's
              sentences is April 12, 2022. * * *

              Relator again came before the Parole Board in Case No. 92-
              CR-632 on January 6, 2010. * * * However, given that Relator
              had not yet completed serving his definite sentences for
              Burglary, Assault, and Felonious Assault, he was deemed "not
              eligible" for release. * * * A subsequent Parole Board Hearing
              was tentatively scheduled for February 28, 2012, after Relator
              completed the definite sentences─totaling 6.5 years─that he
              began serving on January 23, 2006. * * *

              On January 4, 2012, Relator's first Parole Hearing where he
              was eligible for release occurred. * * * Relator's case was
              referred to Central Office Board Review ("COBR") for release
              consideration. * * * It was noted that Relator had served 77
              months (6.42 years) at the time of this hearing, and that his
              first statutory eligibility date was January 2012. * * * On
              January 25, 2012, COBR continued Relator's parole hearing
              until January 2, 2017, citing that a "release at this time, would
              not serve in the best interest or welfare of society." * * *
              Relator was again considered for parole on November 8, 2016.
              * * * At this most recent hearing he was deemed "not suitable
              for release at this time" based on the severity of the crimes
              committed, among other factors. * * * Relator will next appear
              before the Parole Board on November 1, 2019.

(Respondent's brief at 1-7.)

Conclusions of Law:
       {¶ 11} The issue is whether three sentencing entries are ambiguous as to whether
relator shall serve the sentences consecutively or concurrently to the indefinite sentence of
6 to 25 years entered by the Clark County Court of Common Pleas in March 1993 in case
No. 92-CR-632.
       {¶ 12} The first sentencing entry at issue was entered in May 2005 by the Clark
County Court of Common Pleas in case No. 06-CR-102. That entry imposed a two and one-
half year definite sentence for two assault convictions that followed a jury trial. That
sentencing entry states in part:
              It is the ORDER of this Court that defendant serve the
              following prison terms:
No. 17AP-198                                                                               7


                Count one-Assault of a Police Officer-twelve (12) months.
                Count two-Assault of a Police Officer-eighteen (18) months.
                For a total prison term of two and one half (2 1/2) years, to be
                served CONSECUTIVELY with prison term defendant is
                currently serving.

(Emphasis sic.)

          {¶ 13} The second sentencing entry at issue was entered in July 2007 by the Warren
County Court of Common Pleas in case No. 06CR23350. That entry sentenced relator for
the offense of felonious assault. The entry states in part:
                It is hereby ORDERED that Defendant serve:

                As to COUNT 1: a term of 2 years in prison, of which 0 years
                is a mandatory term pursuant to R.C. §2929.13(F),
                §2929.14(D)(3) or Chapter 2925. To run consecutively to
                current prison sentence.

(Emphasis sic.)

          {¶ 14} The third sentencing entry at issue was entered in January 2006 by the Clark
County Court of Common Pleas in case No. 05-CR-819. That entry sentenced relator
pursuant to a plea of guilty to the crime of burglary, a felony of the third degree. In the
sentencing entry, there is no mention as to whether the two year definite prison term
imposed is to be served consecutively or concurrently. The entry simply states: "It is the
ORDER of this Court that defendant serve a prison term of two (2) years." (Emphasis sic.)
                       Alleged Ambiguity in Sentencing Entries:
                                  Cases Cited by Relator
          {¶ 15} In State v. Carr, 167 Ohio App.3d 223, 2006-Ohio-3073, at ¶ 4, the court
states:
                If sentencing is ambiguous as to whether a sentence should be
                served concurrently or consecutively, the ambiguity must be
                resolved in favor of the defendant and the sentences must be
                served concurrently. State v. Quinones, 8th Dist. No. 83720,
                2004 Ohio 4485and Hamilton v. Adkins (1983), 10 Ohio
                App.3d 217, 10 Ohio B. 292, 461 N.E.2d 319. Since there was
                ambiguity in the sentencing order as to whether the sentences
                were to be consecutive or concurrent in this case, the
No. 17AP-198                                                                          8


                ambiguity should have been resolved in favor of Carr and be
                served concurrently.

        {¶ 16} In State v. Downey, 8th Dist. No. 99685, 2013-Ohio-4924, the appellate
court states:
                Downey also argues that the trial court's statement in the
                entry that it "recommends that this sentence be served
                concurrently with the defendant's federal sentence in Case
                1:12CR285, which arises from the same incident," was
                ambiguous because the court only "recommended" that the
                state sentence run concurrently with the federal sentence. If
                the sentence is ambiguous as to whether a sentence should be
                served concurrently or consecutively, the ambiguity must be
                resolved in favor of the defendant and the sentences must be
                served concurrently. State v. Carr, 167 Ohio App.3d 223,
                2006-Ohio-3073, 854 N.E.2d 571 (3d Dist).

Id. at 6.

                Service of Prison Terms: Cases Cited by Respondent
        {¶ 17} In Johnson v. Moore, 149 Ohio St.3d 716, 2017-Ohio-2792, ¶ 7, the Supreme
Court of Ohio states:
                "When a sentencing court imposes a definite term of
                imprisonment consecutively to an indefinite term, the Ohio
                Administrative Coderequires the prisoner to serve the definite
                term first, followed by the indefinite term." Jones v. Dep't. of
                Rehab. & Corr., 10th Dist. Franklin No. 16AP-138, 2016-Ohio-
                5425, ¶ 16; Ohio Adm.Code 5120-2-03.2(E).

        {¶ 18} In Davis v. Dept. of Rehab. & Corr., 10th Dist. No. 14AP-337, 2014-Ohio-
4589, ¶ 16, this court states:
                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 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).

                In his brief, relator argues:
No. 17AP-198                                                                    9


              On January 23, 2006, Relator was returned to the institution
              for Case No. 05 CR 819, Burglary, to serve a definite two (2)
              [year] sentence. On May 5, 2006, Relator received another
              prison definite sentence for Case No. 06 CR 102, two counts
              of Assault, of 2.5 years to run "consecutively with the prison
              term defendant is currently serving." * * *

              On July 5, 2007, Relator received another definite prison term
              for Case No. 06 CR 23350, Felonious Assault, of two (2) years,
              "to run consecutively to current prison sentence." * * *

              The sentencing entries in Case No.'s 05 CR 819, 06 CR 102
              and 06 CR 23350 are ambiguous when determining whether
              the sentence imposed should be consecutive to Relator's
              indeterminate sentence and should therefore be read in favor
              of the Relator and be considered to run concurrent.

              The sentencing entries prepared by the Courts in question,
              specifically in Case No.'s 05 CR 819, 06 CR 102 and 06 CR
              23350 do not include any reference to Relator's indeterminate
              sentence imposed in 92 CR 632. Nor is there any reference to
              the fact that Relator was on parole at the time these sentences
              were imposed. It is unclear, because there is no reference
              whatsoever, whether the Court itself was aware the Relator
              was on Parole and whether it was that Court's intention that
              its prison sentence was to run concurrently or consecutively
              to Relator's indeterminate sentence.

              Just as valid an interpretation of these Court's sentencing
              entries is that the Courts intended that the sentences run
              consecutive to the other prison sentences imposed under
              these other case numbers only.

(Relator's brief at 5-6.)

       {¶ 19} In its brief, respondent argues:
              Contrary to Relator's assertion that the sentencing entries in
              Case Nos. 06-CR-102 and 06-CR-23350 are "ambiguous" as
              to whether the sentences imposed should have been imposed
              consecutively to Relator's indeterminate sentence, the plain
              language of the entries is clear. As noted by Relator, the
              language in the sentencing entries in Case Nos. 06-CR-102
              and 06-CR-23350 respectively state that the sentences were
No. 17AP-198                                                                                10


              "to be served consecutively with the prison term defendant is
              currently serving," and "to run consecutively to [his] current
              prison sentence." * * *

              Relator's parole was revoked in Case No. 92-CR-632 prior to
              the imposition of these sentences; he was admitted into the
              custody of ODRC on January 23, 2006 on both Case No. 05-
              CR-819 and 92-CR-632. * * * Relator's indefinite sentence in
              92-CR-632 was therefore part of his "prison term" prior to the
              imposition of sentence in 06-CR-102 and 06-CR-23350. It
              stretches credulity that the trial courts in Case Nos. 06-CR-
              102 and 06-CR-23350 meant for the consecutive language in
              their sentencing entries to be applicable only to the definite
              term Relator was serving in 05-CR-819, and not to any
              indefinite term that he was serving. Rather, given the use of
              the language "prison term currently serving," and "current
              prison sentence," it seems the courts intended these definite
              terms to run consecutively to any time for which Relator was
              currently incarcerated, which would include 92-CR-632.

(Respondent's brief at 15-16.)

       {¶ 20} The magistrate agrees with respondent's argument and disagrees with
relator's argument. There is no requirement that the sentencing entries in case Nos. 06-
CR-102 and 06 CR 23350 that imposed definite sentences reference case No. 92CR-632
that imposed the indefinite sentence of 6 to 25 years. As indicated in the findings of fact of
this magistrate's decision, relator's parole was revoked in case No. 92CR-632 prior to the
imposition of the definite sentences imposed in case Nos. 06CR-102 and 06CR-23350.
       {¶ 21} In order to obtain a writ of mandamus, the relator must demonstrate (1) that
he has a clear legal right to the relief prayed for, (2) that respondent has a clear legal duty
to perform the requested relief, 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, 29
(1983).
       {¶ 22} Moreover, relator bears the burden of proving his entitlement to the relief
requested by clear and convincing evidence. State ex rel. Doner v. Zody, 130 Ohio
St.3d 446, 2011-Ohio-6117, ¶ 55-57.
No. 17AP-198                                                                              11


       {¶ 23} Based on the foregoing discussion, it is clear that relator has failed to prove
by clear and convincing evidence that he has a clear legal right to the relief requested and
that respondent has a clear legal duty to perform the requested relief.
       {¶ 24} Accordingly, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus.


                                              /S/ MAGISTRATE
                                              KENNETH W. MACKE




                              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).
