[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. O’Neal v. Bunting, Slip Opinion No. 2014-Ohio-4037.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.


                         SLIP OPINION NO. 2014-OHIO-4037
 THE STATE EX REL. O’NEAL, APPELLANT, v. BUNTING, WARDEN, APPELLEE.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
                 it may be cited as State ex rel. O’Neal v. Bunting,
                         Slip Opinion No. 2014-Ohio-4037.]
Habeas corpus—Sentencing error not cognizable in habeas corpus—Availability
        of other adequate remedies at law precludes relief in habeas corpus—
        Dismissal affirmed.
   (No. 2013-1736—Submitted June 24, 2014—Decided September 24, 2014.)
       APPEAL from the Court of Appeals for Marion County, No. 9-13-29.
                               ____________________
        Per Curiam.
        {¶ 1} We affirm the dismissal of this habeas corpus case filed in the
Third District Court of Appeals by appellant, Steven O’Neal. O’Neal seeks
release from prison because his sentencing entry was ambiguous as to whether he
was to serve his state sentences concurrently with or consecutively to his federal
sentence for crimes arising from the same activity. He argues that the ambiguity
                             SUPREME COURT OF OHIO




means that the sentences must be concurrent and that therefore he should be
released.
       {¶ 2} The asserted ambiguity does not exist and we affirm.
                                        Facts
       {¶ 3} O’Neal states that he was arrested and charged with multiple
criminal offenses, both state and federal. He states that in the federal case, he
pled guilty to bank robbery and was sentenced to 15 years in prison. He received
the federal sentence before being sentenced in state court.
       {¶ 4} O’Neal asserts that in his state case, he pled guilty to felonious
assault with a gun specification. He was sentenced on July 24, 1998, receiving
six years for felonious assault and an additional three for the gun specification.
       {¶ 5} O’Neal asserts that the Summit County Court of Common Pleas
ordered that the three-year sentence for the gun specification must be served
consecutively to the federal sentence, but the court did not rule that the six-year
sentence for the felonious assault had to be served consecutively to the federal
sentence.
       {¶ 6} O’Neal argues that when there is ambiguity in a sentencing entry
regarding whether the sentences are to be served concurrently or consecutively,
the defendant is entitled to concurrent sentences. O’Neal asserts that because his
sentencing entry is silent as to whether the six-year term is to be served
concurrently with or consecutively to the federal sentence, the sentences must be
concurrent.
       {¶ 7} The Summit County sentencing entry states:


               IT IS FURTHER ORDERED pursuant to the above
       sentence that the Defendant be conveyed to the Lorain
       Correctional Institution, at Grafton, Ohio; upon completion of the
       intake procedure the Lorain Correctional Institute shall release the



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                                January Term, 2014




       Defendant, upon demand, to the custody of the U.S. Marshall’s
       Office for the purpose of commencing or completing a federal
       prosecution or sentence. FURTHER, upon completion of serving
       the federal sentence the Defendant shall be returned to the Lorain
       Correctional Institution, by the U.S. Marshall’s Office, to
       commence serving his sentence in this case.
               ***
               IT IS FURTHER ORDERED that the Three (3) Year
       mandatory sentence imposed in this case be served prior to and
       CONSECUTIVELY and not concurrently with the sentence
       imposed in Count Six; and also CONSECUTIVELY with his
       federal sentence, which is to be served prior to the sentence
       imposed in this case.


(Capitalization sic.)
       {¶ 8} O’Neal filed a direct appeal, but the court of appeals overruled all
assignments of error and specifically stated that the trial court had ordered that
both state prison terms were to be served consecutively to the federal sentence.
State v. O’Neal, 9th Dist. Summit No. 19255, 1999 WL 771917, *1 (Sept. 29,
1999). O’Neal apparently failed to appeal further.
       {¶ 9} O’Neal served his federal sentence and returned to the Ohio prison
system to serve his state prison term on April 12, 2010. His release date was
calculated as October 10, 2018. In January 2011, O’Neal through counsel filed a
motion in the Summit County court to correct the record, seeking to modify the
1998 sentencing entry to reflect the true agreement of all the parties that the terms
were to be served concurrently.
       {¶ 10} In August 2011, O’Neal filed a motion to withdraw his guilty plea.
In that motion, he asserted that his guilty plea was predicated on the expectation



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that his state sentences would both run concurrently with his federal sentence. In
September 2011, the court denied the motion to withdraw the guilty plea.
       {¶ 11} O’Neal appealed, but the court of appeals overruled his assignment
of error and affirmed the judgment of the trial court. State v. O’Neal, 9th Dist.
Summit No. 26119, 2012-Ohio-3442. O’Neal did not appeal further.
       {¶ 12} Finally, O’Neal filed the petition for a writ of habeas corpus, the
subject of this appeal. On September 20, 2013, the Third District Court of
Appeals granted appellee’s motion to dismiss and dismissed the petition. O’Neal
timely appealed to this court.
                                      Analysis
       {¶ 13} For three reasons, we affirm the Third District’s dismissal of
O’Neal’s petition. First, habeas corpus is inappropriate here because sentencing
errors are not jurisdictional and thus are not cognizable in habeas corpus. Dunbar
v. State, 136 Ohio St.3d 181, 2013-Ohio-2163, 992 N.E.2d 1111, ¶ 15; State ex
rel. Hudson v. Sutula, 131 Ohio St.3d 177, 2012-Ohio-554, 962 N.E.2d 798, ¶ 1.
       {¶ 14} Second, the availability of other adequate remedies at law also
precludes relief in habeas corpus. State ex rel. Massie v. Rogers, 77 Ohio St.3d
449, 450, 674 N.E.2d 1383 (1997).         O’Neal had, and used, the alternative
remedies of appeal and a motion to withdraw his guilty plea.
       {¶ 15} O’Neal made the same arguments in those actions regarding his
sentence that he is making here. “Where a plain and adequate remedy at law has
been unsuccessfully invoked, extraordinary relief is not available to relitigate the
same issue.” Childers at 428, citing State ex rel. Sampson v. Parrott, 82 Ohio
St.3d 92, 93, 694 N.E.2d 463 (1998).
       {¶ 16} Third, even if he could overcome the procedural and jurisdictional
problems with habeas here, his arguments are without merit. The sentencing
entry is clear that both his state sentences are to be served consecutively to the
federal sentence. The entry states:



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                               January Term, 2014




       [U]pon completion of serving the federal sentence, the Defendant
       shall be returned to the Lorain Correctional Institution, by the U.S.
       Marshall’s Office, to commence serving his sentence in this case.


       {¶ 17} In and of itself, this language indicates that the state sentences are
to be served consecutively to the federal sentence; he could not “commence”
serving his state sentence if it were concurrent with the federal sentence. The
entry goes on:


       [T]he Three (3) Year mandatory sentence imposed in this case
       [shall] be served prior to and CONSECUTIVELY and not
       concurrently with the sentence imposed in Count Six; and also
       CONSECUTIVELY with his federal sentence, which is to be
       served prior to the sentence imposed in this case.


(Capitalization sic.)
       {¶ 18} O’Neal wants the courts to interpret this language to mean that the
three-year sentence, but not the six-year sentence, was to be served consecutively
to the federal sentence. But the trial court made clear that the federal sentence
was to be served “prior to the sentence imposed in this case,” which again
indicates that the federal sentence is to be completed before the start of the state
sentences.   The court also stated that the state sentences were to be served
consecutively to each other as well as consecutively to the federal sentence.
       {¶ 19} In short, the sentencing entry is not ambiguous.
                                    Conclusion
       {¶ 20} The court of appeals was correct in dismissing O’Neal’s petition
for habeas corpus, and we affirm.



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                            SUPREME COURT OF OHIO




                                                        Judgment affirmed.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                            ____________________
       Jana DeLoach, for appellant.
       Michael DeWine, Attorney General, and Jerri L. Fosnaught, Assistant
Attorney General, for appellee.
                         _________________________




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