[Cite as Cotton v. Anderson, 2011-Ohio-3885.]


STATE OF OHIO                    )                    IN THE COURT OF APPEALS
                                 )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                 )

MILTON COTTON                                         C.A. No.       10CA009830

          Appellant

          v.                                          APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
CARL ANDERSON                                         COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
          Appellee                                    CASE No.   04CV138081

                                DECISION AND JOURNAL ENTRY

Dated: August 8, 2011



          BELFANCE, Presiding Judge.

          {¶1}   Milton Cotton appeals from the trial court’s overruling of his motion for summary

judgment regarding his petition for a writ of habeas corpus. For the reasons set forth below, we

affirm.

                                                 I.

          {¶2}   In 1991 and 1992, Mr. Cotton was convicted of various crimes for which he

received definite and indefinite sentences. Because this is the third time this matter is before us,

Mr. Cotton’s convictions and sentences are detailed in Mr. Cotton’s prior appeal. See Cotton v.

Anderson, 9th Dist. No. 04CA008536, 2005-Ohio-994, at ¶¶4-5 (“Cotton I”). At issue in this

case is Mr. Cotton’s indefinite sentence from August 14, 1992, which ranges from 55 years and 6

months to 170 years.

          {¶3}   While incarcerated, Mr. Cotton asked the records manager for clarification on his

sentence. In an interoffice communication to Mr. Cotton, the records manager wrote, “THE
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[PAROLE] BOARD DATE IS FIGURED ON THE MINIMUM SENTENCE OF: 3YRS. AIG

[CONSECUTIVE TO] 8YRS. DEF. [SERVED CONSECUTIVELY TO] 15YRS. (15[ YEARS]

IS THE MOST YOU CAN SERVE ON FOR THE 55 1/2 [YEARS].)”

        {¶4}     In 2004, Mr. Cotton filed a petition for a writ of habeas corpus, alleging that

appellee Carl Anderson, Warden of the Grafton Correctional Institution, was “knowingly

implementing an unlawful liberty restraint without jurisdiction to do so[.]” Warden Anderson

filed a motion to dismiss Mr. Cotton’s petition, attaching an affidavit of Mary Oakley, the

Assistant Chief of the Bureau of Sentence Computation for the Department of Rehabilitation and

Corrections, and a memorandum addressing the calculation of Mr. Cotton’s sentence. The trial

court granted Warden Anderson’s motion, and Mr. Cotton appealed.

        {¶5}     This Court reversed, concluding that the trial court had considered evidence

outside of the petition when granting Warden Anderson’s motion. By considering the other

evidence, the trial court had converted Warden Anderson’s motion to dismiss into a motion for

summary judgment without informing the parties or allowing Mr. Cotton an opportunity to

respond. See Id. at ¶¶11-12. The matter was remanded for further proceedings. Id. at ¶13.

        {¶6}     On remand, Warden Anderson again moved for dismissal, arguing that Mr.

Cotton had failed to comply with R.C. 2969.25. Cotton v. Anderson, 9th Dist. No. 06CA008984,

2007-Ohio-6548, at ¶3 (“Cotton II”). The trial court agreed and, again, dismissed Mr. Cotton’s

petition. Mr. Cotton appealed, and this Court reversed, noting that Mr. Cotton had “‘appended to

his petition for writ of habeas corpus copies of the relevant commitments[,]’” and, therefore, had

complied with R.C. 2969.25. Id. at ¶6, quoting Cotton I at ¶3. The matter was again remanded

to the trial court.
                                                 3


       {¶7}    Warden Anderson then moved for summary judgment, attaching Assistant Chief

Oakley’s affidavit. In response to Warden Anderson’s motion, Mr. Cotton filed a cross-motion

for summary judgment. Warden Anderson subsequently filed a response. The trial court granted

Warden Anderson’s motion for summary judgment and denied Mr. Cotton’s motion. Mr. Cotton

appeals the judgment of the trial court.

                                                II.

                                 ASSIGNMENT OF ERROR I

       “THE COURT COMMITTED PREJUDICIAL ERROR IN NOT GRANTING
       SUMMARY JUDGMENT TO THE APPELLANT[.]”

       {¶8}    Mr. Cotton, in his petition for a writ of habeas corpus, raised three grounds for his

writ: that the Department of Rehabilitation illegally calculated his sentence, that the Department

of Rehabilitation illegally “‘correct[ed]’” and “interpret[ted]” his sentence, and that the trial

court never made an express finding of guilt. However, Mr. Cotton has not advanced any

argument in his merit brief concerning his third ground for relief.

       {¶9}    We review a trial court’s awarding summary judgment de novo. Grafton v. Ohio

Edison Co. (1996), 77 Ohio St.3d 102, 105. Pursuant to Civ.R. 56(C), summary judgment is

appropriate when:

       “(1) No genuine issue as to any material fact remains to be litigated; (2) the
       moving party is entitled to judgment as a matter of law; and (3) it appears from
       the evidence that reasonable minds can come to but one conclusion, and viewing
       such evidence most strongly in favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.” Temple v.
       Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.

       {¶10} To succeed on a summary judgment motion, the movant “bears the initial burden

of demonstrating that there are no genuine issues of material fact concerning an essential element

of the opponent’s case.” (Emphasis sic). Dresher v. Burt (1996), 75 Ohio St.3d 280, 292. If the
                                                 4


movant satisfies this burden, the non-moving party “‘must set forth specific facts showing that

there is a genuine issue for trial.’” Id. at 293, quoting Civ.R. 56(E). However, “as the burden is

upon the moving party to establish the nonexistence of any material factual issues, the lack of a

response by the opposing party cannot, of itself, mandate the granting of summary judgment.”

Morris v. Ohio Cas. Ins. Co. (1988), 35 Ohio St.3d 45, 47.

       {¶11} Mr. Cotton does not point to any dispute of material fact, and we find none in this

case. He concedes that, on August 14, 1992, the trial court sentenced him to definite prison

terms of 3 and 8 years and to an indefinite prison term ranging from 55 years and 6 months to

170 years. Mr. Cotton suggests that the Department of Rehabilitation has modified his sentence

and reduced the minimum term to 15 years. However, the Department of Rehabilitation had no

authority to modify his sentence. Furthermore, its reference to 15 years as “the most you can

serve” did not constitute a modification of his sentence. Rather, it simply recognized the effect

of former R.C. 2929.41(E)(2) upon Mr. Cotton’s indefinite sentence. See State ex rel. Hamann

v. Ohio Dept. of Rehab. & Corr., 96 Ohio St.3d 72, 2002-Ohio-3528, ¶7 (“[T]he statutory cap in

former R.C. 2929.41(E)(2) is self-executing[.]”). Furthermore, there is no dispute of fact that

Mr. Cotton is continuing to serve his indefinite sentence.

       {¶12} “Habeas corpus is generally appropriate in the criminal context only if the

prisoner is entitled to immediate release from prison.” Ridenour v. Randle (2002), 96 Ohio St.3d

90, 2002-Ohio-3606, ¶7. “[A] convicted person has no constitutional right to be conditionally

released prior to the expiration of a valid sentence.” State v. Parsons, 9th Dist. No. 22200, 2005-

Ohio-268, at ¶13, quoting Velasquez v. Ghee (1996), 108 Ohio App.3d 409, 411. See, also, State

ex rel. Henderson v. Ohio Dept. of Rehab. & Corr. (1998), 81 Ohio St.3d 267, 268 (A defendant

“has no constitutional or statutory right to parole, [and] he has no similar right to earlier
                                                 5


consideration of parole.”) (internal citation omitted).    Since Mr. Cotton served his definite

sentences first, he is currently serving his indefinite sentence and is well short of the 170-year

maximum. Accordingly, his valid sentence has not expired, and, therefore, he is not entitled to

immediate release from prison. Thus, based on the undisputed evidence before us, Mr. Cotton

was not entitled to a writ of habeas corpus as a matter of law.

       {¶13} The trial court correctly overruled Mr. Cotton’s motion for summary judgment.

Mr. Cotton’s first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       “THE COURT COMMITTED PREJUDICAL ERROR AND DENIED THE
       APPELLANT DUE PROCESS OF LAW WHEN IT DID NOT GIVE
       PRECLUSIVE EFFECT IN THE JUDGMENT OF THE COURT OF
       APPEALS.”

                                    ASSIGNMENT OF ERROR III

       “THE COURT COMMITTED PREJUDICIAL ERROR AND DENIED THE
       APPELLANT DUE PROCESS OF LAW WHEN IT WAS PRECLUDED BY
       THE DOCTRINE OF THE LAW OF THE CASE[.]”

       {¶14} Mr. Cotton’s second and third assignments of error are related, and we consider

them together. Mr. Cotton argues that the trial court’s granting of summary judgment to Warden

Anderson was precluded by res judicata or, in the alternative, by the law-of-the-case doctrine.

We disagree.

       {¶15} The doctrine of res judicata provides 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.” Grava v. Parkman Twp. (1995),

73 Ohio St.3d 379, at syllabus. The law-of-the-case doctrine is similar to res judicata, providing

that “the decision of a reviewing court in a case remains the law of that case on the legal
                                                  6


questions involved for all subsequent proceedings in the case at both the trial and reviewing

levels.” Nolan v. Nolan (1984), 11 Ohio St.3d 1, 3.

       {¶16} Mr. Cotton argues that the trial court erroneously failed to give preclusive effect

to this court’s prior decisions, thereby suggesting that this court previously determined the matter

before us in this appeal. However, Mr. Cotton’s previous appeals solely addressed procedural

issues. In his first appeal, this Court reversed the trial court’s dismissal of his petition because it

had considered evidence outside the petition, thus converting the motion to dismiss into a motion

for summary judgment without providing Mr. Cotton an opportunity to respond. In his second

appeal, this Court reversed the trial court’s dismissal, which had been based upon a failure to

comply with R.C. 2969.25. In neither appeal, did this Court consider the merits of Mr. Cotton’s

habeas petition and Mr. Cotton has not otherwise demonstrated that the doctrines of res judicata

or law-of-the-case apply to the matter before us. Mr. Cotton’s second and third assignments of

error are overruled.

                                                 III.

       Mr. Cotton’s assignments of error are overruled. The judgment of the Lorain County

Court of Common Pleas is affirmed.

                                                                                  Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.
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       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    EVE V. BELFANCE
                                                    FOR THE COURT


WHITMORE, J.
MOORE, J.
CONCUR

APPEARANCES:

MILTON COTTON, pro se, Appellant.

THELMA THOMAS PRICE, Assistant Attorney General, for Appellee.
