[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Newell v. Ohio Adult Parole Auth., Slip Opinion No. 2020-Ohio-967.]




                                           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. 2020-OHIO-967
THE STATE EX REL. NEWELL, APPELLANT, v. OHIO ADULT PAROLE AUTHORITY
                                    ET AL., APPELLEES.

  [Until this opinion appears in the Ohio Official Reports advance sheets, it
 may be cited as State ex rel. Newell v. Ohio Adult Parole Auth., Slip Opinion
                                   No. 2020-Ohio-967.]
Mandamus—In original action for writ of mandamus, issue raised for first time in
        objections to magistrate’s decision, without having appeared in the
        complaint, has been waived—Court of appeals’ judgment granting
        summary judgment to respondents affirmed.
    (No. 2019-0541—Submitted October 22, 2019—Decided March 18, 2020.)
      APPEAL from the Court of Appeals for Franklin County, No. 18AP-527,
                                      2019-Ohio-1138.
                                    ________________
        Per Curiam.
        {¶ 1} Appellant, Timothy Newell, appeals the decision of the Tenth District
Court of Appeals dismissing his complaint for a writ of mandamus against the Ohio
                                  SUPREME COURT OF OHIO




Adult Parole Authority and its chairman, Andre Imbrogno1 (collectively, “the
APA” or “the board”). We affirm the judgment of the court of appeals.
                                         Background
         {¶ 2} In June 1996, Newell was resentenced to prison terms in Cuyahoga
C.P. case No. 40174. The sentencing entry provided the following:


                                          CR 040174
         Agg. Robbery (3 Cts.)              7-25 yrs.
         Gross Sexual Imposition            2-5 yrs.
         Rape (10 Cts.)                     7-25 yrs.
         Fel. Sexual Penetration            7-25 yrs.
         Fel. Assault                       5-15 yrs.
         Each of the above listed counts are ordered to be served
         consecutively.


In a separate case, Cuyahoga C.P. case No. 44231, Newell was sentenced to an
aggregate prison term of two to five years for escape and possession of criminal
tools.    The court ordered that his sentence in case No. 44231 be served
consecutively to his sentence in case No. 40174.2
         {¶ 3} In April 2013, the board denied Newell’s request for parole. In its
decision, the board stated that Newell was serving an aggregate prison sentence of
107 to 375 years.




1. In December 2018, Trayce Thalheimer was appointed as chairman of the Adult Parole Authority.

2. In a third case, Cuyahoga C.P. case No. 40130, Newell was sentenced to a maximum aggregate
prison term of 100 years for rape (three counts) and aggravated robbery. However, because his
sentence in case No. 40130 had been ordered to run concurrently with his sentences in the other two
cases, that sentence is not relevant here.




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                                January Term, 2020




         {¶ 4} In September 2013, Newell filed a complaint for a writ of mandamus
in the Ninth District Court of Appeals. In claim two of the complaint, he alleged
that the board’s records contained materially incorrect information because his
actual aggregate sentence is 15 to 100 years. (The complaint identified two
additional alleged errors in the board’s files, but Newell has abandoned those claims
in this appeal.) Newell requested a writ of mandamus compelling the APA to
correct its information and hold a new parole hearing.
         {¶ 5} The APA filed a motion to dismiss. The Ninth District granted the
motion in part, dismissed claims one and two, and denied the motion with respect
to claim three. The parties thereafter filed cross-motions for summary judgment as
to claim three. While those motions were pending, the court of appeals determined
that venue in Lorain County was improper and ordered the case transferred to the
Tenth District Court of Appeals, Franklin County.
         {¶ 6} The Tenth District magistrate reassessed whether claims one and two
should be dismissed and reached the same conclusion as the Ninth District. With
respect to claim two, the magistrate noted that the board erred when it reported in
its April 2013 decision that Newell had an aggregate minimum sentence of 107
years.    Under the relevant version of R.C. 2929.41, consecutive terms of
imprisonment for felonies (other than murder or aggravated murder) could not
exceed an aggregate minimum of 15 years.
         {¶ 7} However, the magistrate also concluded that Newell’s complaint was
not well-taken because in a subsequent board decision the board reported Newell’s
aggregate sentence to be 15 to 375 years. Therefore, the magistrate concluded,


         The Ohio Department of Rehabilitation and Correction records
         properly show that relator’s sentence is 15 to 375 years. The parole
         records accurately reflect the minimum number of years to which




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          the trial court actually sentenced relator. As such, the information
          is not inaccurate.


The magistrate did not directly address whether the board had correctly reported
Newell’s aggregate maximum sentence.
          {¶ 8} Newell filed objections to the magistrate’s decision. In his second
objection, he contended that the magistrate had been incorrect in saying that he was
subject to a sentence of 15 to 375 years, for two reasons. First, he asserted that 15
to 375 years was not the sentence imposed by the trial court in its June 1996
sentencing entry. And second, he argued that the sentencing entry did not order
him to serve his sentence “in a prison institution” and therefore the APA had no
authority “to execute a sentence that has not been authorized by a court’s sentencing
entry.”
          {¶ 9} The Tenth District overruled Newell’s objections, dismissed claims
one and two, and granted summary judgment to the APA as to claim three. 2019-
Ohio-1138, ¶ 13. The court concluded that the board correctly calculated Newell’s
aggregate maximum term: 375 years. Id. at ¶ 10. And the court rejected Newell’s
contention that the APA had no authority to include the maximum term in its
aggregate-sentence calculation because the sentencing entry did not specify that he
had to serve the sentence in a prison institution:


          It appears relator is attacking the validity of his underlying prison
          sentence—not whether the OAPA has accurately stated his
          aggregate sentence in its records. This claim is not alleged in
          relator’s complaint. In addition, relator raised this argument in a
          previous appeal and the Eighth District Court of Appeals rejected it.
          State ex rel. Newell v. Gaul, 8th Dist. Cuyahoga No. 98326, 2012-
          Ohio-4068.




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                                January Term, 2020




Id. at ¶ 12.
        {¶ 10} Newell timely appealed.
                                      Analysis
        {¶ 11} In his sole proposition of law, Newell contends that it was error to
dismiss the second claim of his complaint because his sentencing entry did not order
him to serve his sentence in a prison institution. Claim two of Newell’s complaint
specifically alleged that his aggregate sentence should be 15 to 100 years. His
current theory—that he was never ordered to serve his sentence “in prison” in the
first place—does not appear in the complaint. “In an original action for a writ of
mandamus, an issue raised for the first time in objections to the magistrate’s
decision, without having appeared in the complaint, has been waived.” State ex rel.
Sanford v. Bur. of Sentence Computation, 152 Ohio St.3d 260, 2017-Ohio-8723, 95
N.E.3d 342, ¶ 9.
        {¶ 12} On appeal, Newell argues that he raised this claim when he asked
the Ninth District to reconsider its decision to dismiss claim two. However,
ordinarily a motion for reconsideration may not raise new issues not previously
raised. E. Liverpool v. Columbiana Cty. Budget Comm., 116 Ohio St.3d 1201,
2007-Ohio-5505, 876 N.E.2d 575, ¶ 3. The court of appeals correctly held that
Newell failed to preserve his claim alleging that the trial court failed to order that
his sentence be served in a prison institution. And because Newell failed to
preserve the claim, it is unnecessary to address his substantive arguments in support
of the claim.
                                                                 Judgment affirmed.
        O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, and
STEWART, JJ., concur.
        FRENCH, J., not participating.
                               _________________




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       Timothy Newell, pro se.
       Dave Yost, Attorney General, and Kelly N. Brogan, Assistant Attorney
General, for appellee.
                            _________________




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