[Cite as Johnson v. Ohio Bur. of Sentence Computation, 2020-Ohio-3486.]




RONALD G. JOHNSON                                    Case No. 2019-00986JD

       Plaintiff                                     Judge Patrick M. McGrath
                                                     Magistrate Gary Peterson
       v.
                                                     DECISION
OHIO BUREAU OF SENTENCE
COMPUTATION

       Defendant

        {¶1} On January 31, 2020, plaintiff filed a motion for summary judgment pursuant
to Civ.R. 56(A).1 On March 20, 2020, defendant filed a cross-motion for summary
judgment pursuant to Civ.R. 56(B).2 On March 30, 2020, plaintiff filed a document
labeled “Plaintiff’s objection & opposition to defendant’s cross-motion for summary
judgment Civ.R. 56(C)” wherein he requests that defendant’s motion be denied, and
judgment be entered in his favor. On April 7, 2020, defendant filed a reply.3 For the




        1On    February 12, 2020, plaintiff filed a document captioned in part “motion for summary judgment
hearing * * *; motion for judgment on single claim of wrongful imprisonment * * *.” On March 19, 2020,
plaintiff filed a document captioned “motion for immediate entry on summary judgment * * *.” On
March 27, 2020, plaintiff filed a document captioned “motion for immediate judgment on pleadings &
summary judgment.” It is unclear whether these documents are also motions for summary judgment;
nevertheless, the documents raise no new issues apart from the January 31, 2020 motion for summary
judgment.

        2On March 27, 2020, plaintiff filed a motion to strike defendant’s cross-motion for summary
judgment, wherein plaintiff argues that defendant was barred from filing such a motion. However,
defendant had leave to file a cross-motion for summary judgment. Plaintiff’s motion lacks merit and is
DENIED.

         3Although the Supreme Court of Ohio issued an entry tolling the time requirements established by

all Supreme Court-promulgated rules in light of the COVID-19 outbreak, “[n]othing in this order precludes
filings during the duration of the order * * *.” See 03/27/2020 Administrative Actions, 2020-Ohio-1166.
Given that the Supreme Court’s tolling order does not preclude a court from accepting filings during the
duration of the order, the court finds that the motions for summary judgment are properly before the court
and are fully briefed.
Case No. 2019-00986JD                           -2-                                     DECISION


reasons stated below, the court grants defendant’s cross-motion for summary judgment
and denies plaintiff’s motion for summary judgment.4

Standard of Review
       {¶2} Motions for summary judgment are reviewed under the standard set forth in
Civ.R. 56(C), which states, in part:
       Summary judgment shall be rendered forthwith if the pleadings,
       depositions, answers to interrogatories, written admissions, affidavits,
       transcripts of evidence, and written stipulations of fact, if any, timely filed
       in the action, show that there is no genuine issue as to any material fact
       and that the moving party is entitled to summary judgment as a matter of
       law. No evidence or stipulation may be considered except as stated in
       this rule. A summary judgment shall not be rendered unless it appears
       from the evidence or stipulation, and only from the evidence or stipulation,
       that reasonable minds can come to but one conclusion and that
       conclusion is adverse to the party against whom the motion for summary
       judgment is made, that party being entitled to have the evidence or
       stipulation construed most strongly in the party’s favor.
“[T]he moving party bears the initial responsibility of informing the trial court of the basis
for the motion, and identifying those portions of the record before the trial court which
demonstrate the absence of a genuine issue of material fact on a material element of
the nonmoving party’s claim.” Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264
(1996). To meet this initial burden, the moving party must be able to point to evidentiary
materials of the type listed in Civ.R. 56(C). Id. at 292-293.



       4On   March 2, 2020 and March 13, 2020, plaintiff filed motions for judgment on the pleadings.
However, defendant timely filed an answer wherein it denied the allegations of the complaint.
Accordingly, judgment on the pleadings is not appropriate, and plaintiff’s motions are DENIED.
Case No. 2019-00986JD                       -3-                                 DECISION


       {¶3} If the moving party meets its initial burden, the nonmoving party bears a
reciprocal burden outlined in Civ.R. 56(E), which states, in part:
       When a motion for summary judgment is made and supported as provided
       in this rule, an adverse party may not rest upon the mere allegations or
       denials of the party’s pleadings, but the party’s response, by affidavit or as
       otherwise provided in this rule, must set forth specific facts showing that
       there is a genuine issue for trial. If the party does not so respond,
       summary judgment, if appropriate, shall be entered against the party.

Procedural History
       {¶4} Plaintiff filed his complaint on September 24, 2019, requesting $10,000 in
damages. In accordance with R.C. 2743.10, plaintiff’s complaint was placed on the
Administrative Docket. On October 16, 2019, plaintiff filed a motion to increase the
prayer amount wherein he states that his damages exceed $10,000. On October 22,
2019, plaintiff’s motion was granted, and the deputy clerk transferred the case to the
judicial docket for a determination by a judge of the Court of Claims pursuant to
R.C. 2743.03.

Factual Background
       {¶5} According to the verified complaint, plaintiff, an inmate at the Northeast Ohio
Correctional Center, alleges that defendant falsely imprisoned him by imposing
“unauthorized duplicate terms” to his prison sentence.          According to the verified
complaint and exhibits attached thereto, plaintiff was admitted to prison in 1987 and was
ordered to serve an indefinite sentence of 7 to 25 years. Plaintiff was granted parole for
this sentence in 1996.
       {¶6} While on parole, plaintiff committed several new felonies.        As a result,
plaintiff received new sentences resulting in an aggregate 12-year definite term.        It
appears plaintiff believes that his 12-year definite prison term was added to his original
Case No. 2019-00986JD                            -4-                              DECISION


indefinite prison term, which he asserts incorrectly resulted in him serving “duplicate
terms.” Specifically, plaintiff states:
       The Ohio Administrative Code 5120-2-3.2(E) is the ONLY LEGAL BASIS
       to impose the SB-2 definite terms “CONSECUTIVELY” to the pre-SB-2 7
       to 25 year indefinite term. The Ohio law states: the SB-2 terms SHALL BE
       SERVED FIRST, and the pre-SB-2 indefinite term is “TOLLED” (stopped
       from being served) while the SB-2 terms are served. Followed by the
       remaining pre-SB-2 term being served. This is the determined relevant
       legal procedure for the 12-years of aggregate SB-2 terms and the pre-SB-
       2, 7 to 25 year term to be served. Authorized by law in Ohio with each
       term served ONE TIME EACH, in sequence of imposition, with SB-2 terms
       served first as the 7 to 25 year term is “TOLLED” (Stopped from being
       served), followed by the remaining 7 to 25 year term being served until
       maximum expiration date.
       {¶7} Further, plaintiff indicates he has previously filed a writ of habeas corpus
with the Ohio Supreme Court.              Plaintiff alleges that, during that case, defendant
“concealed” the duplicate terms from the Ohio Supreme Court. Specifically, plaintiff
alleges that the attorney representing defendant committed “intentional fraud” on the
Ohio Supreme Court when he “concealed” the miscalculation of his prison sentence. As
a result, plaintiff requests $282,310.00 in damages.
       {¶8} In support of his motion for summary judgment, plaintiff submitted his own
affidavit, a verified complaint, and numerous exhibits attached thereto, as well as a
response to defendant’s cross-motion for summary judgment.               In these materials,
plaintiff reasserts the arguments raised in his verified complaint, as discussed above.
       {¶9} In its cross-motion for summary judgment, defendant argues that plaintiff is
not falsely imprisoned because his stated maximum prison term has not yet expired.
Defendant states that it has the privilege to confine plaintiff until August 19, 2024 and
Case No. 2019-00986JD                           -5-                                    DECISION


that plaintiff’s stated prison term has been properly calculated pursuant to Ohio
Administrative Code 5120-2-03.2(E). Moreover, defendant provides that, on multiple
occasions, the Ohio Supreme Court has determined that plaintiff’s sentence is properly
calculated.5
       {¶10} Regarding plaintiff’s fraud claim, defendant argues that any claim for fraud
is barred by the two-year statute of limitations. Defendant reasons that any such fraud
claim arising from plaintiff’s habeas case would have accrued no later than May 16,
2017, the date upon which the Ohio Supreme Court issued its decision. However,
plaintiff filed his complaint on September 24, 2019, well after the statute of limitations
expired.    In the alternative, defendant argues that any claim for fraud regarding
representations about plaintiff’s sentence made by defendant must fail because
plaintiff’s sentence was properly calculated.
       {¶11} In support of its cross-motion for summary judgment, defendant submitted
the affidavit of Carla Black, a Correction Records Sentence Computation Auditor for the
Ohio Bureau of Sentence Computation (BOSC). Black has been in her current position
with BOSC for 6 years.          (Black Aff., ¶ 2.)      BOSC is responsible for processing
sentencing documents and computing release dates for individuals under the custody
and control of the Ohio Department of Rehabilitation and Correction (ODRC). Id., at
¶ 3.
       {¶12} Black personally reviewed plaintiff’s sentencing entries related to his
incarceration with ODRC and those sentencing entries are attached as exhibits to
Black’s affidavit. Id., at ¶ 4. On February 23, 1987, plaintiff received an indefinite
sentence of 7 to 25 years for a conviction for Voluntary Manslaughter. (Black Aff., ¶ 5;
Exhibit A-1.) Plaintiff was assessed 182 days of jail-time credit and his maximum term



       5Johnson   v. Moore, 149 Ohio St.3d 716, 2017-Ohio-2792, 77 N.E.3d 967; State ex rel. Johnson
v. Bur. of Sentence Computation, __ Ohio St.3d __, 2020-Ohio-999, __ N.E.2d __.
Case No. 2019-00986JD                           -6-                                     DECISION


was set at August 22, 2011. Id. On April 12, 1996, plaintiff was released on parole.
(Black Aff., ¶ 6.)
       {¶13} On November 6, 1996, plaintiff was assessed 8 days of lost time for
violating the conditions of his parole, resulting in his maximum term being adjusted to
August 30, 2011.6 (Black Aff., ¶ 6; Exhibit A-3.)
       {¶14} On June 13, 2000, plaintiff was convicted in Montgomery County of Having
a Weapon Under Disability, and his parole was revoked. (Black Aff., ¶ 7; Exhibit A-4.)
Plaintiff was sentenced to serve 3 years to run concurrent to his previous indefinite
sentence, and a 1-year firearm specification to be served consecutively to his previous
sentences. Id. As a result, plaintiff’s maximum term was adjusted to August 30, 2012.
Id.
       {¶15} On March 28, 2006, plaintiff received three new convictions in Fayette
County for Receiving Stolen Property (1-year sentence), Failure to Comply (2-year
sentence), and Obstructing Official Business (90-day sentence). (Black Aff., ¶ 8; Exhibit
A-5.) Plaintiff’s sentences for Receiving Stolen Property and Failure to Comply were
ordered to run consecutive to each other and consecutive to his prior sentences. Id.
Plaintiff’s sentence for Obstructing Official Business was ordered to run concurrent with
the other two sentences. Id. Accordingly, plaintiff’s maximum term was adjusted to
August 30, 2015. Id.
       {¶16} On June 15, 2006, plaintiff was convicted in Adams County of Burglary.
(Black Aff., ¶ 9; Exhibit A-6.) Plaintiff was ordered to serve 3 years to run concurrently
to the Fayette County charges. Id. Thus, plaintiff’s stated maximum term was not
changed. Id.
       {¶17} On May 31, 2007, plaintiff was convicted in Madison County of two counts
of Complicity to Illegal Conveyance of Drugs. (Black Aff., ¶ 10; Exhibit A-7; Exhibit A-8.)

       6Blackpoints out that to account for Leap Years plaintiff’s maximum term was reduced by 5 days
from September 4, 2011.
Case No. 2019-00986JD                       -7-                                 DECISION


Plaintiff was ordered to serve a two-year sentence for each count, for a total of 4 years,
to be served consecutively. Id. As a result, plaintiff’s maximum term was adjusted to
August 29, 2019. Id.
       {¶18} On June 27, 2007, plaintiff was convicted in Highland County for
Aggravated Robbery (7-year sentence), Burglary (4-year sentence), and Theft (1-year
sentence). (Black Aff., ¶ 11; Exhibit A-9.). These counts were ordered to run concurrent
to each other and concurrent to plaintiff’s previous sentences. Id. Thus, plaintiff’s stated
maximum term remained the same. Id.
       {¶19} On August 23, 2007, plaintiff was convicted in Montgomery County for
Receiving Stolen Property (18-month sentence), Possession of Criminal Tools (12-
month sentence), Vandalism (12-month sentence), and Burglary (5-year sentence).
(Black Aff., ¶ 12; Exhibit A-10.) These new convictions were ordered to be served
concurrent to each other. Id. However, plaintiff’s new sentence was ordered to be
served consecutively to his previous sentences resulting in plaintiff’s maximum stated
term being extended to August 27, 2024. Id. Plaintiff also received 8 days of jail-time
credit; therefore, his stated maximum term was calculated to expire on August 19, 2024.
(Black Aff., ¶ 13.)
       {¶20} Black further avers that when calculating an inmate’s sentence, BOSC
auditors follow the orders of the sentencing courts. Id., at ¶ 14. Black explains that, in
order to ensure an accurate sentence calculation, each computer calculation of
sentences is rechecked by hand. Id., at ¶ 15. Furthermore, when a new sentencing
entry is received by BOSC, the inmate’s entire sentence is reviewed by at least three
BOSC staff members. Id. Black further explained that due to plaintiff’s multiple inquires
and lawsuits regarding the calculation of his sentence, his sentence has been reviewed
by 7 senior Auditors or BOSC executive management staff members. Id., at ¶ 16.
Case No. 2019-00986JD                       -8-                                 DECISION


False Imprisonment
       {¶21} “False imprisonment occurs when a person confines another intentionally
‘without lawful privilege and against his consent within a limited area for any appreciable
time, however short.’” Bennett v. Ohio Dept. of Rehab. & Corr., 60 Ohio St.3d 107, 109,
573 N.E.2d 633 (1991), quoting Feliciano v. Kreiger, 50 Ohio St.2d 69, 71, 362 N.E.2d
646 (1977). “Under the provisions of R.C. 2743.02(A)(1), ‘the state may be held liable
for the false imprisonment of its prisoners.’” Abercrombie v. Ohio Dept. of Rehab. &
Corr., 10th Dist. Franklin No. 16AP-744, 2017-Ohio-5606, ¶ 9, quoting Bennett at
paragraph two of the syllabus. “However, an action for false imprisonment cannot be
maintained when the imprisonment is in accordance with the judgment or order of a
court, unless it appears such judgment or order is void on its face.” Williams v. Ohio
Dept. of Rehab. & Corr., 10th Dist. Franklin No. 09AP-77, 2009-Ohio-3958, ¶ 12.
“Thus, although the state may be liable for false imprisonment, it retains immunity under
common law for claims of false imprisonment when the plaintiff was incarcerated
pursuant to a facially valid judgment or order.” Id. Furthermore, “[f]acial invalidity does
not require the consideration of extrinsic information or the application of case law.”
Pruitt v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 13AP-117, 2013-Ohio-
3743, ¶ 7 (citations omitted).
       {¶22} Construing the evidence in a light most favorable to plaintiff, the court finds
that plaintiff can prove no set of facts entitling him to recovery for false imprisonment.
Plaintiff does not contest that the sentencing entries attached to defendant’s cross-
motion for summary judgment are true and accurate copies of the sentencing entries
from his multiple felony convictions.     Plaintiff does not contest the validity of the
sentencing entry ordering him to serve an indefinite 7 to 25-year sentence for Voluntary
Manslaughter, nor does he contest the fact that he was on parole supervision when he
committed several new felonies resulting in a new aggregate 12-year definite sentence.
The sentencing entries from the Montgomery County Court of Common Pleas, Fayette
Case No. 2019-00986JD                        -9-                                 DECISION


County Court of Common Pleas, and Madison County Court of Common Pleas order
that the sentences be served consecutively rather than concurrently to plaintiff’s
indefinite sentence.      Furthermore, those sentencing entries, when calculated
demonstrate that plaintiff’s maximum expiration of his sentences expires on August 19,
2024. There is no suggestion that the sentencing entries are facially invalid or suffer
from any defect. Accordingly, the evidence shows that, at all times relevant to this
complaint, plaintiff was incarcerated pursuant to facially valid sentencing orders.
       {¶23} Plaintiff argues that defendant miscalculated his prison sentence by adding
his definite term to his indefinite term resulting in “unlawful duplicate terms.” Plaintiff
argues that his indefinite term should have been “tolled” or, as plaintiff states, “stopped
from being served.” Ohio Admin. Code 5120-2-03.2(E) provides that plaintiff’s definite
term shall be served before plaintiff’s indefinite term is served. In this case, to calculate
plaintiff’s maximum release date, the indefinite term and the definite term are added
together, producing the maximum release date. See Jones v. Ohio Dept. of Rehab. &
Correction, 10th Dist. Franklin No. 16AP-138, 2016-Ohio-5425, ¶ 16 (finding that
defendant properly calculated an inmate’s maximum release date by adding his
indefinite term to his definite term, which is consistent with the requirement that the
inmate serve the definite term prior to serving the indefinite term). Thus, plaintiff’s
argument has no merit.
       {¶24} In his response to defendant’s cross-motion for summary judgment, plaintiff
argues that defendant failed to account for more than 400 days of jail-time credit. It
does not appear that plaintiff’s complaint alleges that defendant failed to account for jail-
time credit while calculating his maximum release date. Assuming such a claim is
properly before the court, such an allegation would not support a claim for false
imprisonment until plaintiff is falsely imprisoned due to defendant’s alleged failure to
account for jail-time credit. That potential claim would not arise until sometime in 2022
at the earliest. See Baker v. Dept. of Rehab. & Corr., 10th Dist. Franklin No. 11AP-987,
Case No. 2019-00986JD                       -10-                                DECISION


2012-Ohio-1921, ¶ 12 (a claim for false imprisonment accrues upon an inmate’s
unlawful confinement).     Nevertheless, plaintiff has challenged the calculation of his
prison sentence on at least two prior occasions, and on both occasions the Ohio
Supreme Court found his sentence to be properly calculated. See Johnson v. Moore,
149 Ohio St.3d 716, 2017-Ohio-2792, 77 N.E.3d 967, ¶ 7; see also State ex rel.
Johnson v. Bur. of Sentence Computation, __ Ohio St.3d __, 2020-Ohio-999,
__ N.E.2d __, ¶ 13. Specifically, the Ohio Supreme Court found that BOSC is privileged
to confine plaintiff until 2024. Johnson at ¶ 7.
        {¶25} Here, plaintiff again attempts to relitigate the calculation of his sentence.
Upon review, this court finds that defendant has confined plaintiff at all times relevant to
this complaint pursuant to valid sentencing entries. Moreover, BOSC has properly
calculated plaintiff’s sentence.    Accordingly, defendant’s cross-motion for summary
judgment regarding plaintiff’s false imprisonment claim is granted.

Fraud
        {¶26} R.C. 2743.16(A) states, in relevant part: “civil actions against the state
permitted by sections 2743.01 to 2743.20 of the Revised Code shall be commenced no
later than two years after the date of accrual of the cause of action or within any shorter
period that is applicable to similar suits between private parties.” “A cause of action for
fraud or conversion accrues either when the fraud is discovered, or [when] in the
exercise of reasonable diligence, the fraud should have been discovered.” Cundall v.
U.S. Bank, 122 Ohio St.3d 188, 2009-Ohio-2523, 909 N.E.2d 1244, ¶ 29.
        {¶27} Plaintiff’s fraud claim is based upon the allegation that the attorney
representing defendant committed “intentional fraud” on the Ohio Supreme Court when
he “concealed” the miscalculation of his prison sentence. Defendant asserts that
plaintiff’s fraud claim is barred by the two-year statute of limitations. Plaintiff’s fraud
claim accrued on May 16, 2017, the date upon which plaintiff’s habeas case was
decided by the Supreme Court. See Johnson. (Defendant’s Exhibit B-2.) Plaintiff
Case No. 2019-00986JD                             -11-                                      DECISION


either discovered the fraud at that time or should have discovered the fraud through the
exercise of reasonable diligence. Plaintiff filed his complaint on September 24, 2019,
four months after the statute of limitations expired.
        {¶28} Even if plaintiff’s claim was not barred by the statute of limitations, as this
court has discussed at length above and the Ohio Supreme Court has confirmed, BOSC
properly calculated plaintiff’s sentence.7 Thus, plaintiff can prove no set of facts entitling
him to relief for fraud. Accordingly, defendant’s cross-motion for summary judgment
regarding plaintiff’s fraud claim is granted.
        {¶29} Based upon the foregoing, the court finds that there are no genuine issues
of material fact and that defendant is entitled to judgment as a matter of law.




                                                  PATRICK M. MCGRATH
                                                  Judge




        7Additionally,defendant submitted the affidavit of M. Scott Criss, Assistant Section Chief of the
Criminal Justice Section, in support of its cross-motion for summary judgment. Criss avers that he did not
draft the brief or make any arguments to the Ohio Supreme Court in plaintiff’s habeas case. (Criss Aff.,
¶ 5.) Criss further avers that he did not make any representations in plaintiff’s habeas case, nor did he
make any false representations in plaintiff’s habeas case. Id., at ¶ 6. Plaintiff has offered no Civ.R. 56
evidence to refute the truthfulness of these claims.
[Cite as Johnson v. Ohio Bur. of Sentence Computation, 2020-Ohio-3486.]




RONALD G. JOHNSON                                    Case No. 2019-00986JD

        Plaintiff                                    Judge Patrick M. McGrath
                                                     Magistrate Gary Peterson
        v.
                                                     JUDGMENT ENTRY
OHIO BUREAU OF SENTENCE
COMPUTATION

        Defendant
        {¶30} Based upon the decision filed concurrently herewith, defendant’s cross-
motion for summary judgment is GRANTED. Plaintiff’s motion for summary judgment is
DENIED. Accordingly, judgment is rendered in favor of defendant. All other pending
motions are DENIED as moot. All previously scheduled events are VACATED. Court
costs are assessed against plaintiff. The clerk shall serve upon all parties notice of this
judgment and its date of entry upon the journal.




                                                  PATRICK M. MCGRATH
                                                  Judge

Filed May 18, 2020
Sent to S.C. Reporter 6/26/20
