SELL JEFFERSON, APPELLANT, vs. IN THE SUPREME COURT OF OHIO JASON BUNTING, WARDEN, MARION CORRECTIONS INST. MARION, OHIO 43302 APPELLETEE. MERIT BRIEF OF APPELLANT SELL JEFFERSON SELL JEFFERSON/APPELLANT PRO-SE P.O. BOX 57 MARION, OHIO 43301 COUNSEL FOR APPELLETEE/ATTRONEY GENERAL OFFICE, INMATES LITIGATION SECTION MIKE DEWINE, ATTORNEY GENERAL 150 GAY STREET COLUMBUS, OHIO 43215 ,.. ... ^...., k^#^S ^. k.' ^^ ^ e{ . Wt•. r"s CL^RK OF COURT SUPREME COURT OF OHIO r---- r Qdg^I ^^^ L CASE NO.^-117$ ON\APPEAL FROM THE MA.RION COUNTY COURT OF APPEALS, THIRD APPELLATE DISTRICT ^^^^^ of Appeals Case ido.09-1^^^26 .( . ^s J4 ..) . R; T
Transcript
SELL JEFFERSON,
APPELLANT,
vs.
IN THE SUPREME COURT OF OHIO
JASON BUNTING, WARDEN,
MARION CORRECTIONS INST.
MARION, OHIO 43302
APPELLETEE.
MERIT BRIEF OF APPELLANT SELL JEFFERSON
SELL JEFFERSON/APPELLANT PRO-SE
P.O. BOX 57
MARION, OHIO 43301
COUNSEL FOR APPELLETEE/ATTRONEY GENERAL OFFICE,
INMATES LITIGATION SECTION
MIKE DEWINE, ATTORNEY GENERAL
150 GAY STREET
COLUMBUS, OHIO 43215
,.. ... ^....,
k^#^S ^. k.' ^^ e{. Wt•. r"s
CL^RK OF COURTSUPREME COURT OF OHIO
r----r
Qdg^I ^^^ L
CASE NO.^-117$
ON\APPEAL FROM THE
MA.RION COUNTY COURT
OF APPEALS, THIRD
APPELLATE DISTRICT
^^^^^ of AppealsCase ido.09-1^^^26
.( . ^s J4 ..) .
R; T
TABLE OF CONTENTS
Paae
TABLE OF AUTHORITIES ............ . ................................... .:...................................iii
STATEMENT OF FACTS ...... ... .......................... .... ....... ............ .... ...... .. . . ...... l
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW............................. ,.. 3
Proposition of Law No. I: The Third District Court of Appealserred and prejudiced the appellant when appellant's writ of habeascorpus was dismissed as res judicata and successful petition for thesame relief and issues that could have been raised in priorapplications without given special notice that the court was goingto grant appellee's motion to dismiss his writ and not provide theopportunity to defend against his writ being dismissed ........... .................. 3
Proposition of Law No. II: The subsequent trial court did nothave subject-matter jurisdiction to rescind the appellant'sCertificate of Expiration of Sentence and order him to be returnedback to prison on the appellant's original sentence after sentencingtrial court authority had ended and did not have the authority tochange the murder and robbery sentence form a concurrentsentence to a consecutive sentence upon his return back to prisonto serve the murder sentence consecutively.......... ...................................... 7
i
TABLE OF CONTENTSContinued.
CONCLIJS ION . ............. .................................................................. ....... ..
CERTIFICATE OF SERVICE................................................
APPEiNDIX
Page
14
15
Appx. Page
Judgment Entry Third Appellate Judicial District Court(June 20, 2013) . ................................................... .... .. . ...................
Judgment Entry Third Appellate Judicial District Court(May 31, 2007) ......... ........................................................................ ...
Judgment Entry Third Appellate Judicial District Court(March 16, 2009) ............................. .. .... ... ...........................
Court ofAppeals; Fourth Appellate District(May 17, 1988) .................................................................... . ..............Court of Appeals Tigbth Appellate District
Pyle v Karasan, Supra, 63 Soct>, at page 17^ 417Rice v Olsen, 63 S.ct. 989 497
Rose v Haskins, 388 F.2d 91 (1968) U.S. App. Lexis 8518, 18 ^o
Ohia Misc. 81, 45 OH Op.2d 395 10
Sander v &dpitad. States, 83 S.ct. 1065,1073 6,11
Spardley Dugger, 825 F.2d 1566 3
State v Addison, (1987) 40 Ohio App.3d 7, 530 NE^2d 133^-9.
State v Ballard, (1991) 77 Ohio App.3d 595, 602 NE.2d 1234- 9,12
State v Cook, (Apr. 16, 1998) (7 Bist. No.96 CA. 101y1998Ohio App. Lexis 1990 10
Swihart v Chairperson of the Ohio Adult Parole Authority,(2008) Ohio App. Lexis 5360 4State v Elliots, (1993) 86 Ohio App.3d 792,797, 621 NE.2d127^ 10
State v Fai.r, (1990)9 Dist. No. 143-43, Ohio App. Lexis 236610
State v Garretson, 748 NE.2d 5608a63& Ohio App.1-2%.IIist..(2000 8111,12
State v Hawk,(1992), 81 Ohio App.3d. 296, 610 NE.2d 10829
State v Keller,(1999) 12 Dist. No.CA 07^0011 Ohio App.Lexis
479 10a 1.2State v Mader, 646 ItIE.2e^ 511 10
State v Neville,(9 Dz.st. No. 02CA0001, 2002 Ohio i5422 10
State v Plant,(2008 Ohio 4424,2008 Ohio App. Lexis 3738 10 , 12
Smith v OFFER 10Smith v Ori^anization of Foster Families & Reform, 431 U.S.
816-845-846, 53 L.Ed 14, 97 S.ct. 2094 (1976) 10
State ex rely Freeman v Morris, (Ohao 1991) 597 NE.2d 702, 7fl3-Civ® R,P.8(C) 4
State ^^ rei. Jefferson v Ohio Adult Parole Authority, 86 OhioSt.3d 304, case no. 163 (1999 Ohio 1999 ,State ex ^el. v Wilkinson, (1C3 Da.st. 0520-520, Ohio 5946Ohio Lexis 5884 5
State ex rel> v Larkins v Baker,(1995) 73 Ohio St..3d 6581659g653 NE.2d 701 7
State ex rei. Harris v Anderson, Warden (Ohio 1996)667%N&.2dl 13State ex rel. Hanson v Guerngey Cit. Bd. of Commer (1992) 65Ohio Ste3d 545, 605 NE.2d 378 3
State ^^ ^el Jefferson v Shoemaker, Ohio Supreme Court ^Cas^^No.2161(1990 5
i. i i i
TABLE OF AUTHORITIES Cont"d
PAG^
CASE^s ate ex rel. Stark v C&D Disposal Ind oEnvic^rnment R.eview. 4 n A(2012) Ohio App. Lexis 915 3
State ex ral4 Westchester Estate Inc, v Bacon, 61 Ohio Sta2d 42^399 NE.2d 83 6,11
The Bernard. Group v New Hope Alternative Therapy Research, 794NEo2d 141 (Ohio App. 8 Dist. 2003) 153 Ohio App.3d 393 6United States v Early, 816 FAZd 1428 9Nitek v Jones, 455 U.S. 480 63 L.Ed 552, 100 S.ct. 1254 (1980) 10,13Wayne Bldg. & Loan Co. v Headley, 64 Ohio App. 355, 18 0.0. 14528 NE> 2d 649 8
The records will show that appellant was indicted by the Cuyahoga County Grand Jury in a
single indictment for two offenses, count one aggravated murder and count two, aggravated robbery,
case number 17177 for both offenses. See indictment Exhibit (A).
Appellant was tried on both counts on April 19, 1975 by a visiting judge at the initial trial. The
jury was unable to reach a verdict on count one, but was able to find appellant guilty on count two of
aggravated robbery, and on May 8, 1975, he was sentenced to 7 to 25 years, by the trial judge. On June
23, 1975, appellant was retried for count one, for the aggravated murder. See Exhibit (B) journal entry,
aggravated robbery. Appellant was found guilty of aggravated murder and he was sentenced to life
imprisonment on July 21, 1975. See Exhibit O jourrzal entry, aggravated murder by another visiting
judge.
On August 6, 1975, appellant was transported by Cuyahoga County Sheriffs Department to the
Ohio Department of Correction for appellant to begin serving the sentences concurrently. Appellant
was paroled in 1981, under a one year parole supervision (case no 17177 and on February 11, 1982, he
was granted his "final" release on case no. 17177.
Appellant continued to live at the same address for approximately 5 years and on one contacted
him regarding his release from prison on parole under case no. 17177, and he did not know that a
capais had been issued by the subsequent trial court of Cuyahoga County by request of Cuyahoga
County Prosecutor's Office for aggravated murder to be returned back to prison on case no. 17177. See
Exhibit (D) copy of capais.
In 1985, on October 2, 1985, appellant was arrested on the capais and he was under indictment
for new charges by Cuyahoga County Grand Jury, case no. 198899, forgery, uttering, possession of
criminal tools and grand tlieft. On November 19, 1985, appellant went to trial to plead guilty on the
new charges, No contest and he was found guilty and was sentenced to 7 to 15 years by the trial judge.
Appellant was ordered to be returned back to prison (under the murder sentence, case no. 17177) See
Exl.libit (E) 1985 journal entry. The subsequent trial court made it appear that it was not a re-
incarceration of the murder sentence, but a new 1985 conviction and sentence for the murder.
Appellant was serving the murder and robbery concurrent in 1975, under case no. 17177 and he
was granted his Certificate of Expiration of Sentence under that number in 1982. Exhibit (F).
The Ohio Pardon and Parole Commission refused to rescind its order to grant appellant a
Certificate of Expiration of Sentence under case no. 17177. EYhibit (G). The OAPA stated in a
1
UAIEMENT OF FAC1S ont'-41
Letter to the Ohio Public Defender Office addressed to Mr. John Bay,
that the subsequent trial court corrected the error by utilizing Crim.
R. 36 in'^jI985 and recommi,t-ted ^=appellant back to prison to serve the murdersentence and also granted him time credits while awaitng trials on themurder. The ODRC nor the OAPA particpated in appellant being returnedback to prison on his original 1975 murder sentence. See Exh.ibit (G),
---------- - -Appeliant filed his notice of appeal to the Supreme Court of Ohio
on July 25, 2013. (APpx. 1).
2
Argument
Proposition of Law No. I:
The Third District Court of Appeals erred and prejudiced the appellant when appellant'swrit of habeas corpus was dismissed as res judicata and successful petition for the samerelief and issues that could have been raised in prior applications without given specialnotice that the court was going to grant appellee's motion to dismiss his writ and notprovide the opportunity to defend against his writ being dismissed.
In this instant case of appellant, the Court of Appeals failed to review the appellant's issues and
merit that he alleged in the writ of habeas corpus before arriving at its decision to dismiss. Appellee
filed his motion to dismiss on June 13, 2013 and the court detertnined that appellant's writ should be
dismissed as res judicata and successful petition and issues that could have been raised in prior
applications on June 20, 2013 which was six (6) days.
The appellant can prove each fact in support of his claim. Health Care Inc. v. SchroedeY, 894
N.E.2d 351 (2008). A motion to dismiss for failure to state a claim upon which relief can be granted is
procedural and tests the sufficiency of the complaint. State ex rel. Stark C&D Disposal Ind v.
Environment Review ... A ... (2012) Ohio app. Lexis 915. In order for a court to dismiss a complaint
for failure to state a claim upon which relief can be granted it must appear beyond doubt from the
complaint relator can prove no set of facts entitling him to recovery. O'Brien v. University Commzcnity
:fenants Union (1975) 42 Ohio St.2d 242, 327 N.E.2d 753; State ex Yel: HansUn v. Guerngey Cit. Bd. Of
Cofnmers (1992) 65 Ohio St.3d 545, 548, 605 N.E.2d 378. In conducting a De Novo review the court
must accept all factual allegations in the complaint as true and all reasonable inferences must be drawn
in favor of the nonmoving party. Byg v Lynch (2003) Ohio 7290, Byrd v Faber (199I) 57 Ohio St.3d
65, 565 N.E.2d 584. As long as there is a set of facts consistent with the plaintiffs complaint which
would allow the plaintiff to recover, the court may not grant a defendant's motion to dismiss. Kaufman
v. Limobusters, 600 N.E.2d 1150 (Ohio App. 8 dist. 1992).
If a court in ruling on a Civ. R. 12(B)(6) motion intends to consider matters outside the
pleadings it must first convert the motion to dismiss into a motion for summary judgment and upon
doing so give notice of the conversion to the parties to permit them the opportunity to present
evidentiary materials pertinent to the converted motion. Indep, Iris. Agents of Ohio v. Duryee, 641
N.E.2d 1119 (Ohio App. 10 dist. 1994). Se also, Haines v. Kermer, 92 S.Ct. 594, 595, 596. Once res
judicata is raised, appellant has the burden to prove that he had not abused the writ. Miller u Solem,
758 f.2d 144 and Spardley v. Dugger, 825 F.2d 1566.
3
Appellee failed to argue any defense under Civ. R. P. 12(B)(6) or Civ. R. P. 8(c) because res
judicata is not within any defenses set out in Civ, R. P. 12(B). State ex rela Freeman v. Morris, 597
N.E.2d 702, 703 (Ohio 1991) Civ. R. P. 8(c), designates res judicata an affumative defense, we hold
that the defense of res judicata may not be raised by motion to dismiss under Civ. R. 12 (B). Swihart v.
Chairperson of the Adult Parole Authority (2008) Ohio App. Lexis 5360; Holmes v. Crawford Mach.
Ind. (2011) Ohio app. Lexis 4703.
Appellant arrived at the prison system in 1985 with a reading level at less than 5th grade
reading level, in 1994 he was reading at a 6' grade and in 1997, it was at 7' grade. See attachment (I)
inmate education information-VEDU. Appellant having this education disability left him Nvith no other
option but to depend upon the institution law clerks to assist him in the situation that county officials
and state officials had caused, and deprived appellant of his equal protection and due process
proceedings and procedures rights of the Ohio Constitution and the equal protection and due process of
the United States Constitution of the 5' and 14' aanendments.
In the appellant particular case,it was impossible for him to file any application on his behalf,
therefore, he should not be held responsible for not being able to draft, .litigate, argue these complex
issues at the trained skilled professional counsel is in artistically and articulate drawing petitions for
judicial review. Price -,^. Johnson, 68 S.Ct. 1049-1063 and 64; Pyle v. Kansas, sacpra, 63 S,Ct. 178; rice
v. Olsen, 63 S.Ct. 989 and Holiday u Johnson, 61 S.Ct. 1015, 1077. The earlier court states: A prisoner
might have to go from court to court until he obtained his liberty. Cox v. Hakes, 15 A.C. 506, 527
(H.L.). Appellant's trouble of resjudicata began when he filed the initial writ of habeas corpus in the
Scioto County Common Pleas Court in 1987 which was dismissed and appellant appealed to the Fourth
Appellate District Court of Appeals in. 1988, and it was dismissed for failure to state a claim. Jefferson
vMQrris, 548 N.E.2d 296. Thereafter, it has been a resjudicata fight for him seeking relief without a
remedy adequate in the course of the law in Ohio.
Appellant did not appeal the Appellate Court of Appeals' decision because it would have been
frivolous to do so, appellant was serving a 1985 subsequent sentence (case no. 198899). Appellant
sought legal assistance from outside attorneys but could not get anyone that wanted to assist him, the
Bar. Association, the legal profession, contact counsel for help out of Columbus, Cleveland, and other
out of Sandusky, some of them asked for money and others just could not attack the issues because they
could't understand the problem because the appellant's situation was not heard of.
4
Appellant had to continue seeking help form the law clerks at the institutions that he was
transferred to, and he started filing for time credit toward the sentence and conviction on th original
1975 concurrent sentence Case No. 2161, (1990) State ex rel. Jefferson v. Shoemaker, Ohio Supreme
Court, writ of Mandamus, time credit; Jefferson v. Brinano, Ohio Supreme Court, case no. 1151, 1991,
for time credit,writ of habeas corpus; State ex rel Jefferson v. Ohio Adult Parole Autlzority 86 Ohio
St.3d 304, case no. 163 (1999) Ohio 1999, writ of Prohibition, time credit before appearing at the board
hearing on the life seritence in (2000); Jefferson v. Haviland, Ohio supreme Court, case no. 2221
(2000) writ of habeas corpus for time credit.
State ex rel. Jefferson uWilkinson, 10 Dist. 0520-520, Ohio 5946, Ohio Lexis 5884.
Appellant filed a writ of habeas corpus in The Third Dzst. Appellate Court of Appeals Case no.
9-07-10, Marion County and it was denied on May 31, 2007.) res judicata.
Appellant appealed the Appellant Court's decision to the Ohio Supreme Court (case no. 2007-
1265 dismissed the appeal on September 11, 2007, appellant filed a motion for reconsideration and it
was denied because because of there is no mailbox rule in the OSC on September 24, 2007. OSC
denied the appeal for failed to prosecute.
Appellant filed a writ of habeas corpus in the Marion, County Common Pleas Court and it was
dismissed (case no, 2008-CV-0569 and the dismissal of the writ was appealed to the 3rd Dist. Of
Appellate Court dismissed the appeal as res judicata (case no. 9-08-39, on March 16, 2009.
Appellant seeks relief on the issues and merit and a deterna.ination on the facts but there having
been a ruling in all of the applications on whatever, appellant had requested in the instant writ for time
credit prior to incarceration was rejected as resjudicata. Appellee has precluded appellant from any
kind of relief on this case for approximately 30 years, using the Jefferson v. Morris ruling, which was
filed premature in 1988 in the 4' Appellate Dist. Ct. of Appeals, 548 N.E.2d 296, that was not appealed
because it would have been frivolous to file an appeal, at least, what the inmate law clerk advised.
The law clerk continues to research the extraordinary novel circumstances of the instant case of
appellant, the instant writ of habeas corpus was filed on the appellant's behalf, since there was not a
ruling on the issues and merit on the claims before this court, there have been a lengthy research since
appellant filed his last writ of habeas corpus, approx. (5) years and within these years, the issues the
arguments is material to new issues, new law, new grounds, new authorities that is material to the
issues that strengthen the arguments of his claim. Furthermore, factual issues has been developed, the
prior applications were not fully and fair, purely new legal questions are involved.
5
W'here, however, there has been a change in the facts in a given action which either raises a new
material issue or which would have been relevant to the resolution of a material issue involves in the
earlier action, neither the doctrine of res judicata nor the doctrine of collateral estoppel will bar
litigation of that issue in the later action. State ex rel. v. Westchester Estater Inc. v. Bacon, 61 Ohio
St.2d 42, 399 N.E.2d 8. Subject-matter jurisdiction may be challenged even after parties have reached
a settlement agreement in open court that has been memorialized on the record and approved by the
court. The Bernard Group v. New Hope Alternative 7"nerapy-Research, 794 N.E.2d 141 (Ohio App. 8
dist. 2003), 153 Ohio App.3d 393.
Tf the ground of the new application was detemii.n.ed against appellant on the merits on a prior
application, if factual issues were raised in the prior and it was not denied on the basic that the files and
records conclusive resolve these issues, the end of justice would be serve by redetermining of the
grounds and the new issues relevant factual new authorities that is material to strength the arguments of
the issues and merit in the instant writ of habeas corpus of the appellant. Sander vUnited States, 83
S.Ct. 1063, 1064, and 1068, 1073.
A very interesting point was raised in the appellee's motion to dismiss appellant's writ of habeas
corpus in the instant case, where appellee stated that it had been a ruling against appellant on the merit
that he is raising in the instant writ on (pg. 9 Appellee's Motion to Dismiss), however appellee also
sunamarized in the motion to dismiss numerous applications that appellant had filed but he could not
submit but one that has been ruled on the merit (see pg. 14 & 15) which in Jefferson v.rllorris, 548
N.E.2d 296 (1988) there was only one issue that was raised and it was the OAPA did not have
jurisdiction to reacquire custody over the appellant on a void parole.
Appellant has stated in the instant writ of habeas corpus, why the issues were not raised in prior
petitions, the different authorities that has been submitted that relevant materials become law through
inmates research to strengthen the argument of the issues and merits in this case (on page 4 and 5).
Appellant submitted the Civil Actions that he filed in the last 5 years attached onto the writ of habeas
corpus to the 3rd Dist. Appellate Court that was filed on May 7, 2013. Appellant was not able to submit
all of the decision because of misplaced or lost and furthermore the institution does not allow a lot ot;
paper laying unless it is current legal work that is in the court or working on a case to be filed.
Appellee is more concerned about fighting appellant on legal technicality than the violations of
appellant's constitutional rights of the Ohio Const. Article0 I, Section 16 and the United States
Con.stitution 's 14' Amendment.
6
, ^;
Habeas corpus are exernpt from res judicata, conventional notion of finality of litigation have no
place where life or liberty is at stake, the fundamental fairness requires that issues be determined on its
facts not on legal technicalities but with policy of construing the law liberally in favor of the
application and the conventional notion of finality of infringement of constitutional rights is alleged (if)
government (is) always to be accountable to judicially for a man's imprisonment. Fay v. Noia, U.S.
391, 83 S.Ct. 829 (1963).
Appellee is asking the court to hold the appellant to the same standard as a skilled legal counsel
in drafting, articulate, and artistically as a professional and prejudiced the appellant from being his
constitutional claims before this court for a determ.ination on. the issues and merits. Which would be
prejudicial. Holiday v Johnson, 61 S.Ct. 1015; Pyle v. Kansas, supra, 63 S.Ct. At page 178, and Rice
v. Olsen, 63 S.Ct. 989.
Appellant seeks a writ of habeas corpus, which is an extraordinary remedy available where
there is an unlawful restraint of a person's liberty and no adequate remedy at law, especially in the
instant case. Aree v. Russell (2001), 92 Ohio St.3d 540, 545, 751 N.E.2d 1043; State ex rel Larkins v.
Baker (1995), 73 Ohio St.3d 658, 659, 653 N.E.2d 701. Habeas corpus will lie when a judgment is
void due to lack of jurisdiction. Pegan v. Crawmer (1996), 76 Ohio St.3d 97, 99, 666 N.E.2d 1091:
See Pratts v. Hurley, 806 N.E.2d (Ohio 2004).
The Third District Appellate Court of Appeals failed to review appellant's complaint and issues
on the merits and make a determinatzon on the facts but instead, dismissed the AATit (6) days after the
filing of the appellees motion to dismiss that was filed on June 13, 2013 and the Clerk of Court
journalized the judgment on June 20, 2013.
The Appellate Court's decision was prejudiced and its and its implied more than an error of law,
its attitude was unreasonable, arbitrary and discrimination, unconsciously. This court should reverse
the decision and hear the case on its facts.
Proposition of Law No,II:
The subsequent trial court did not have subject matter jurisdiction to rescind theappellant's Certificate of Expiration of Sentence and order hin2 to be returned back toprison on the appellant's original sentence after sentencing trial court authority hadended and did not liave the authority to change the murder and robbery sentence from aconcurrent sentence to a consecutive sentence upon his return back to prison to servethe murder sentence consecutivelv.
7
Appellant was indicted by the Cuyahoga County Grand Jury in 1974 for tti^vo offenses in a single
indictment in case no. 17177. Count one (1) aggravated murder in violation of R.C. 2901.03 and count
two (2) aggravated robbery in violation of R.C. 2929.11.
On April 19, 1975, appellant went to trial on both offenses and the jury could not reach a verdict
on count one (1) aggravated murder. The visiting judge ordered a hung jury on count one. On May 8,
1975 he sentenced appellant to 7 to 25 years for the robbery conviction.
On June 23, 1975 appellant was retried on the murder count by a jury as well by a second
visiting judge and appellant was convicted for the murder and on July 21, 1975 he was sentenced to life
imprisonment.
In the case at bar, the trial court's original sentencing order was valid. When appellant was
delivered. to the permanent detention facility on August 6, 1975 the authority of the judicial branch over
appellant's sentence ended. Thereafter the trial court had no authority in the issuing the capais before it
to order that appellant be returned to prison to serve an additional time under case no. 17177.
The trial court did not violate its statutory authority and the sentencing order was not void. The
sentence original imposed upon appellant was a valid sentence, after appellant's confinement to prison
the trial court was without continuing jurisdiction to alter appellant's sentence or take further action
upon it, upon execution of the sentence, jurisdiction was transferred to the penal institution of the
executive branch. State v. Garretson, 748 N.E.2d 560,563 (Ohio App. 12 Dist. 2000).
It is well settled that a court has the inherent power and authority to enforce its own judgments.
40 Ohio Jurisprudence 3d (1982) Enforcernent of judgments, Section I. However, it is similarly well
acknowledged that this power is not absolute and the General Assembly has the authority to regulate
implementation of this power to ensure it is not abused. Wayne Bldg. &.Loan Co. v Headley, 64 Ohio
App. 355, 18 O.O. 146, 28 N.E.2d 649.
Under the law of. Ohio the trial court in a criminal case is given the power to carry into
execution the sentence or judgment that it has pronounced upon the defendant. Such authority is
governed by R.C. 2949.05.
R.C. 2949.05 provides:
If no appeal is filed, if leave to file an appeal or certification of a case is denied, if thejudgment of the trial court is affirmed on appeal, or if post-conviction relief underSection 2953.21 of the Revised Code is denied, the trial court or magistrate shall carryinto execution the sentence or judgment which had been pronounced against defendant.
8
Once a trial court has carried into execution a valid sentence as authorized above, it may no
longer amend or modify that sentence. State v. Addison, (1987) 40 Ohio App.3d 7, 530 N.E.2d 1335;
In re Zilba (1996),l 10 Ohio App.3d 258, 673 N.E.2d 997; BrookPark uNecak (1986), 30 Ohio App.3d
118, 30 OBR 218, 506 N.E.2d 936; State v. Ballard (1991), 77 Ohio App.3d 595, 602 N.E.2d 1234. In
Columbus v. Messer (9182), 7 Ohio App.3d 266, 7 OBR 347, 455 N.E.2d 519, the court of appeals for
Franklin county addressed the question of exactly when the execution of the sentence has begun;
Where the full sentence involves imprisonment, the execution of the sentence is commenced when the
defendant is delivered from the temporary detention facility of the judicial branch of the penal
institution of the executive branch; (Emphasis Added). As a result, a trial court does not have
jurisdiction to modify a valid sentence of imprisonment once imprisonment has begun. Should a trial
court retain jurisdiction to modify an otherwise valid sentence; the defendant would have no assurance
about the punishment's finality; Brook Park v. Necak, 30 Ohio App.3d 218, 220, 30 OBR , 506
N.E.2d 936, 938. See these same principles followed in United States v. Early, 816 F.2d 1428, the
crossed of the bright-line test of the execution of the sentence.
In the case of this appellant particular circumstances,
court did not have suhj,ect-matter jurisdiction or the authority to inter-vened with the original sentencing trial court valid sertte-nces orders:^Yimplememted Crim. R-.36 to order appellant back to prison on the original
sentence and for the murder sentence to be served consecutively*
The trial court may correct clerical mistakes made in judgment or orders at any time. The rules
of Crr.rninal procedure allow the trial court to correct clerical errors made on the record at any time.
Crim. R. 36 reads:
Clerical mistakes in judgments, order, or other parts of the record, and errors in therecord arising from oversight or omission, may be corrected by the court at any time.
The phrase; clerical mistakes; describes the type of error identified with mistake in
transcription, or omissiozi of any papers and documents. Densply Internal, Inc. v. Kostas (1985), 26
Ohio App.3d 116, 118, 26 OBR 327, 328, 498 N.E.2d 1079, i081. The power to correct clerical errors
is a narrow one that may not be manipulated to grant a trial court omnipotent jurisdiction while
ignoring the mandates of the General Assembly. State v. Hawk (1992), 81 Ohio App.3d 296, 610
Furthermore, the subsequent trial court did not have authority to change the original trial court
sentences from concurrent for murder and robbery, after the appellant was arbitrarily ordered back to:
prison in 1985, he was ordered to serve the murder sentence consecutively to prison in 1985, he was
9
ordered to serve the murder sentence consecutively that increased the parole eligibility of December 3,
1985 at which time he arrived back into the institution. His first parole hearing was in 2000. Exhibit (J).
In the case of the appellant, the subsequent trial court modified appellant's sentences to nisi.
consecutively instead of concurrently, through the 1985 journal entry (case no. 198899). Once
execution of sentence begins, the trial court may not modify a sentence by increasing: the severity of
the punishment by amendment of the original sentence, violation of the 5' amendment. State v.
Neville, (9' dist. No. 02CA0001, 2002 Ohio 5422 P6, quoting state v. Elliott, (1993) 86 Ohio App.3d
792, 797, 621 N.E.2d 1272. See also Statq v. Cook, Apr. 16, 1998, (7' dist. No. 96 CA 101, 1998 Ohio
App. Lexis 1990. The same was followed in State v. Keller, 1999 12' Dist. No. CA-07-001, Ohio App.
Lexis 479; State v. Plant, 2008 Ohio 4424, 2008 Ohio App. Lexis 3738. See also State v lVader, 646
N.E.2d 511; State u Fair, 1990 (9`hdist. No. 14343 Ohio app< Lexis 2366.
In the case at bar, appellant was given high expectation that he was free to go about his life as
he pleased after receiving his Certificate of Expiration of Sentence on case no. 17177, and no one
claimed anything different for 5 years and 11 years after the judges pronounced the sentences.
Therefore, was entitled to be heard before taken that expectation away from him.
Where a state by its enactments creates expectation that certain interests will be protected
absent specified good cause, that state must afford individual procedural due process before upsetting
that expectation. Brown v. Joaquin, 601 F.Supp 653. One source for identification of protected liberty
interests in state law. ritek v. Jones,445 U.S. 480, 63 L.Ed 552, 100 S.Ct. 1254 (9180). Smith v.
Origanization of Foster Families & Reform, 431 U.S. 816, 845-846, 53 L.Ed. 14, 97 S.Ct. 2094
(1'976) (hereinafter Smith v OFFER). Under Ohio law, which states that: All of Ohio Pardon and
Parole Corramission orders are fmal. Rose v. Haskins, 388 F.2d 91 (1968) U.S. App. Lexis 8518, 18 OH
Misc. 81, 45 OH Op.2d 395.
The same due process of holding a hearing before upsetting appellant expectation was also
followed in Klots v. Ohio Adult Parole Authority, 330 F.Supp, 665, affirmed 492 f.2d 1243 and Holland
v. Cardwell, 492 f 2d 1243, cert. Dn. 95 S.Ct. 97, 419 U.S. 853, 42 L.Ed.2d 85. Appellant was denied
his equal protection and due process of the Ohio Art. I, Section 16 and the United States Constitution of
the 5' and 14' am.en.dments.
Due process of law undoubtedly means, in the due course of legal proceedings, according to
those rules and forms which have been established for the protection of private rights but not
necessarily judicial proceedings, it may summary proceed if not arbitrary or unequal. Due process of
the law 14' amendment refer to that law of the land in each state which deprives its authority from the
10
inherent and reserved power of the state exerted within the limit of those fundamental principles of
liberty and justice which lies at the basic of all civil rights and political institution. Natural and
inherent principle of justice and requires that no one shall be condemned in person or property without
opportunity to be heard. The proceed must be approximate to the case and just to the parties effected
and pursued in ordinary manner and adapted to the end to attained, with opportunity to be heard, when
necessary, for the just protection of rights.
Appellee counsel argued in his motion to dismiss appellant's writ of habeas corpus on (pg. 9 and
through 21), was deceived claiming that it has been numerous determinations on the merit and that
appellant could have raised the issues in prior applications on the merit and that appellant could have
raised issues in prior applications that he argues in the instant writ. Appellant could not refer to a
determination on the merit but the premature writ that was filed in 1988 in the 4' Dist. Appellate court
of Appeals. Which was not proper filed on appellant's behalf and it was impossible for him to address
any kind of application on his own, again, he was only function on a 4' grade education is the reason
that institution clerk's work in the law library helped him with the knowledge they had. See Exhibit (I).
The court should not hold appellant at fault that he was arbitrarily returned back to prison
without the aid of counsel to defend him in this cause of action that the subsequent trial court placed
him in. Had he been afforded a opportunity to be heard as the court provided State v. Garretson, 748
N.E.2d 560, it is a great possibility this cause would not before this court at this later day.
Where, however, there has been a change in the facts in a given action which either raise a new
material issues or which would have been relevant to the resolution of a material issue involved in the
earlier action, neither the doctrine of res judicata 'nor the doctrine of collateral estoppel will not bar
relitigation of that issue in later action. State ex rel. Westchester Estate, Inc. v. Bacon, 61 Ohio St.2d
42. See also Sander v. United States, supra at pg 1068.
Appellant has presented a prima facie case where relief could have been granted had the 3rd dist.
Appellate Court of Appeals would have reviewed the appellant's writ of habeas corpus and made a
determination on the issues and merit before making a decision to dismiss on appellee motion as res
judicata without allowing appellant his procedural due process right to defend against the writ from
being dismissed as the court ordered.
Appellee never has argues that appellant could have appeal the subsequent trial court order in
1985 because he was left trying to fmd a remedy to file the constitutional violation, it has been 30 years
searching for relief for the appellant. The Appellate Court of Appeals should be reversed and this Court
should hear the case on the issues and merit and make a determination on the rrierits.
11
Finally, the decision of the court in,iState vGarretson„ 748 NE.2d
560,563 (Ohio App. 12 Dist. 2000), applies in the present case. In thedarretson's court it was decided on subject matter jurisdiction when theier^tencing trial court had ended. The matter in the appellant's case is
analogous to Garretson, the sentencing trial court authority to return himback to prison was void. As discussed, the failure follow the procedusilmandates of R.C. 2949.05 establishes procedural requirement that a courtmust follow in order to proper exercise its subject matter jurisdiction,in the instant case. The sentencing trial court had ended and did not
have authority over appellant's original sentence.
The subsequent trial court',;ordered appellant back to prison withouthim being present in the courtroom, appellant could not appeal the court`Sarbitrary decision and did not have knowledge of the court's decision Untilsom&time later, when Mr. John Bay from the Ohio Public Defender Office
ir, Columbus, Ohio sent him a copy of what had took place to returned appell-
ant back to prison on the origina7, sentence and case number, in the letterfrom OAPA.
The aubsequent.trial court di.d not have authority to do anything inthis particular case of appellant but to announce its lacked of subject-matter jurisdiction and dismiss the prosecution request of the trial courtto issued the capais for appellant to be returned back to prison on hisoriginal sentence #,
The trial court did not have authority to revoke appellant's Certific°
ate of Expiration of Sentence because the sentencing txs.al court continu-
ing authority and jurisdiction had ended and transferred over to the penal
institution of the executive branch. Garretson,supra, at 563. Furthermore,
the trial court also did not have authority to alter or modify appellant'soriginal murder and robbery sentence from a concurrent sentence, when the
trial judges j6drnai eptr1is did znot specify as to how the sentences wereto be served and they are to be served concurrent, accordingly to the lawof Ohio. Hamilton v Adkins, 461 NE.2d 319 (1983) See also Gaddis v UnitedStates, 280 F.2d 334 (1960). R.C. 2929.41. Once thp trial court has
carried into execution a valid sentence it may no longer amend or modify
that sentence. State v Plant (2008 Ohio Appa Lexis 3738). Execution ofa prison sentence commences when the defendant is delivered from the
temporary detention facility of the judicial branch. State v Keller (1999)Ohio App. Lexis 479.
In the case at bar, appellant was resentenced by the subsequent trialcourt because he had to served the murder sentence consecutively and beginserving it in it entireity before parole consideration when he was returnedback to prison in 1985. Appellant does have seriuos constitution claims
that relief can be granted in his favor.^ ^^a.,,
12
-. Appellant does not have an adquate remedy in the ordinary course of
the law, to challenges the constitutions violations in the instant writof habeas corpus and a writ of habeas corpus is available to him to bring
his claims before the court of the Third District of Appellate Court of
Appeals because the subsequent triai court patently and unambiguously lack-ed subject-matter jurisdiction and authority to revoke appellant's Certifi-
cate of Expiration of Sentence,,Appellant right to be taeard is distinguish
from the right to be heard in, Stater"a Costilla, 2041 Chio 2202; 2001 OhioApp. Lexis 2032.
Appellant was returned to prison without an opportunity to be heard
to offer any type of defense or evidence that would assist the court as
to why he should not be returned to prison on the original sentence,^as theGar-retson`s court had provided to hi.m. Where a state by its enactmentscre.ates the expectation that certain interests will be protected absent
specified good cause, then the state must afford the individual proceduraldue process before upsetting that expectation. Brown v Joaquin, 601 F.supp
653. One course for the identification of protected liberty interests isstate law. Vitek v Jones, 455 U.S. 480, 63 L.Ed.2d. 552, 100 S.ct 1254(1980). Smith v Organization of Foster ^'ar^ili e^s ,fur Equality & Reform. -
431 U.S. 816, 845-846, 53 L.Ed.2d 14, 97 S.ct. 2094 (1976) (hereinafter-Smith v OFFER). _ti
The issues that is raised in the instant writ had not been ruled on the
merits in any prior applications, if factual issues were raised in theprior and it was not denied on the basic that the files and records cona-^ ^-=clusive resolve these issues, the end of justice would be served by re-determining of the grounds and the new issues relevent factual, new author-
lites that is material to strenghten the argument of the issues and merits
in this present writ, there has been new authorities addressed that ishelpful to aid th6,--:courts in resolving appellant's claims. The writ ofhabeas corpus should be allowed. State ex rel Harris v Anderson,Warden 4",aih,i,:
(t3HI0 1996) 667 NE.2d. 1 and Brewer v Dahlberg, 942 F.2d 328 (6Cir. 1991).
Habeas Corpus are exempt from res judicata in the case of this appell-ant. See Fay v Noia, (1963) U.S. 391, 83 S.ct. 829. The subsequent trial
court's order to returned appellant back to prison on his original sentencewithout subject matter jurisdiction to act and the
the capais for appellant by request of the prosecutiong was without author-ity to do so, the order is void abd the order to have him returned back toprison is also and;^to resentenced appellant to served the murder conseeut-ivelk.;3 iseVal9o:^(Strb4:1v Costilla, 2001 Ohio 2202; 2001 Ohio App. Lexis
2032: Atleast, Garretson was allowed his day in court to defend againsthiia`be^^g^n;etgi:nad=^ba^k:^to t°prison, however, the appellant was not affordedthat opportunity in his unusual extraordinary circumstance predicement hehas been placed in,,, -
13
The Ohio Department of Rehabilitation and Corrections did,not requests
a warrant for appellant to be returned back to prison on the original
sentence and the Cuyahoga County Common Pleas Court sir_!the f.Prosecution
office make the Ohio Department of Rehabilitation aud Corrections or theOhio Adult Parole Authority a party to the proceeding and the ODRC did not.
intervene. The subsequent trial court arbitrary ordered appellant back to
prion on the original sentence without him being heard in a court of law.
See State v Garretson, 140 Ohio App.3d 554, 748 NE.2d 560 (2000^- :Tdne 30).
Brown App. No. 99-10-123, unreported, 2000 WL 924694, appeal allowed by
State v G$rretson, (2000), 90 Ohio St.3d 1451, 737 NE.2d 55 (Table, No.-00-1462). However, the prosecutor did not endeavor to make the ODRC a
party in this case as well as the insta^nt case of appellant and the trialcourt' g:=order is void.
The trial court's original sentencing order was valid, when appellantwas delivered to the permanent detention facility the authority of the
judicial branch over appellant's sentence ended. Thereafter the trial court
had no authority in the issuing of the capias for appellant arrest to be
returned back to prison on the original sentence by request of the
prosecutor and for the murder sentence to be served consecutively to the
robbery sentence upon his returned to prison that also is a void judgme.ntof the trial court.
The trial court was without continuing jurisdiction to alter the
appellant's original, concurrent sentences or take further action upon it,
upon execution of the sentence, jurisdiction was transferred to the penal
institution of the executive branch. Appellant is being restrained of his
liberty by court who lacked subject-matter jurisdiction over him and did
not have the authority to returned him back to prison on his original sent-.
ence to be reincarcerate to the custody of the Ohio Department of Corrections
to serve any portion of the sentence. The OAPA/ODRC did not have jurisdict-
ion or the authority to accept the custody over the appellant by order of
the trial court on the original sentence and did not have authority to rein-carcerate appellant under the void judgment.
The appellant's sentence for 7to 15 years had expired under case No.-198899 and the appellee is continues to restrained him of his liberty inviolation of the United States Constitutional of the 5th and 14th amendment.The appellant should be immediately release from the custody of the appellee.
CONCI.US iONFor the reasons discussed above, thiscase involves matters of public
great general interests and substantial questions and a felony. The appel.lA^
ant requests this court accept jurisdiction in this case so that the import-ant issues will be reviewed on the merits
R s0dBL 4 submit^^ed^ 1^
Sell fl rson/Pro-se-A Ppe a # 187-975
14
CERTIFICATE OF SERVICE
I certify that a copy of this Merit Brief was sent by regular U.S.
mail to caunsel of record for appellee, Ohio Attorney General Office, MikeDewine, Inm)ates Litigation Section, 150 Gay Street, Columbus, Ohio 43215on tha.s99 j^day of September, -'2Q13.
R gect 1^ submi.tted,
e son--Rro^se7Appel n 1#187975
^.G. Box 57Marion, Ohio 43301
15
APPENDIXS
^ ^ O 6 t z X.<, i , . . 6` a: ..;7^-'
E,.:as.^ii.J i'`:.T."a<.^. ii.<^ ^..s ^.^ a^ •^ `'; i
T(a^.' Jurors of the Grand JurE° of th0 Sf::tL'caf Ohio, «ithit}ctiul fui° ft}.rt ficxly e,f thc.(;outatY afcrrtt:sa(d, o}ltheir wath:;, is THE INAM:F. AND f3Y THE f1I'THQTtiTY ( )i` T'rsi: ti'a A 'i'E' OF f33.116t g)c fltrd tinti pr+q schiit, thatthe above rtantc(i Defendant(s), rsn or about tfxr datke of the ut'frt};ie ;ef tiurtia athcwci; Jn tlae {'+runtt r,f l;:i^ n hr•.•x,
unlawfc;llv and laurposelr and ^^t^, vh Pr; O;° ca?c" ^ %^on a„nd: $ . e ^ ^', c.^
O e ^o o^r^, ^, a ^ ^ f s^ : r^,» e^ ` ° -' " - =-- == =_, e . ^w--_^_ _ ,. ^'L ^ .
'.'",,;^cF ^^:^ U t' ^ ^ ( ^
^C.. ^ : t t0: -^ _'°""_ ° ^ ^ -`.
^^^ ^:il^ i's1 ^j a^:. t _ _.. _ _ _ ^ ^___ - - e _^ M _r _^_^ ^.^^.1 `
C'Uk':4^CG.; t'Jt,^=r^' ^ i ^,.^t
( Tt^r 3urorti oC tne Graa^cI ^urS' raf vhc^ ^.:cLe of Ohio, :^ii:hin'an_d c:t y . „Fi fhr^r ca,a..hs, I^^t Ti^'^ ^,,^^i^ ;^j^;I3 ,3 for.t.is bod}° of the Cour:tY =^Po2 esZid. oxi
^' 1aiL ^ i,!°I'^U.^,.ITY Cl^ Tz:E S T:1TU' ;}F° t^ a3'0, t?o fintP and nr°c^ Nn t, th :tthir a^ove n::mcd Defendant (5), Uri ur u^cut t^ie da6e of tl^c ^ffc:^::e set forf ^^^ .•'
h abar^, in thc t^ounty r^f C:ir,<zho^-^^.4r^1<tt^.•fudly s7d ur*^ ^OS^IY d.1C'
Tlrc ctezeeutaxsc hexea.a hasi.ng, an a Faratr day oi enuzc, beta gdand gaiity, by a Jux'qofPggravaced itabbery. ItC Z917. QI as cba-gcd aa the second ccuase of che isadic=eat
vras this day Gsought inca court widh hf..s aaunsel presenc.Tlzezeupcn c:ra casuzr. isscjsi,red cf Ctxe said de=e:a3a»r if he had an)rt'aing ca say why
judgra:eztl; shouId nac be prenaunCcd axaiase Et,i=, and tz,tving nactsi:.g but :rhaG he had alreadysreid and shcv£<g nca gacc aesd sufdicient eause :fiy jud•j;m^c sitrauld uoc be ?.rsnnurzced=
Xt ss ciaereform ordered and adjudged by che eau.rt ch,ac deEcndanCSali lefferson be imp:.soraed and con?ined in c!=e ChilLicrache Correc=:analZnst:.ruzc, Ch:Ilicatbe, (hi® !or a Ces.a of noc less than seven (7) year3 and n®c a ►axethan LM$snN.ye f4ve (25) yaal.
^ ..;,. a zccoz!ing ca law asd thac he pay t:te ccsc af c;ris prvset-autiran £or sritich e-xecsraon :s =ardcd. Def=dant given credzt Ear .Tai.I rite.
J`:oti.on for AJapeaw, graQced. P.°.esen= cati:nsel ~® g-pPeaZ •
Rabewc G. "_'.ague, ,;a;;gerg S/!^175
C.r C 12» C JuDGE;
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T61` STATE OF 0f?!O I. GER,:tD E FiJ€RST. C00:( OFC'.i*Og; t:mum S. TF; c fit7Ur t 7F CO7dMdtN P'_M
itv^^I^':^^r^ arJ. • ^`t;^'tl#."iNt :.S :; • :fi:•::' ,tL SEA; Ci 3-11.0 C,ri:JRF TStS L.l..(?AY OF ^m^^' -t A, 0. a 4ca z€.,..
LG t.. FUERS T, Glerk
bp Decuty
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STATE C?F' OH(Q, (jCt•JYAMOC-,A COUNTY S5.
STATE ok" oH7p
V6.
SeZI ,7efferson
tN THE cOURT 0,?GOJ'rtM®P( PLEaS
April
PLAIX7TFF 7°"w1.r: ,7uj . T^^^9e 79 7'^21
nro. CR 17177 . 19 75•-.^
INDICrPrfENT
ABgravated 3•iurder w/c ARobbery g$ravated
P^FEXDARY
JOURNAf. EhTRY ^osr^aThz.s cause c
factor found ^e °R this day, as to couThe nt o.
foxSentenczng Hearing as per ORC(^t a fo 1e only,rmer
day of Court 2325.04.defendanC havin , defendant , mitigatory
RC 2903.01, as charged been found ^'as found guilthis counsel ged in the fir gui2tq 3g A Y°f count ttao,).
present. St C°,nt of the ggravatec^ 12uxder ylith S1"hereu o indictnaent w Peci,ffcatia*tP^ the Court as brought intojudgment shou znquzred o" Court with
said and showi^g n ,np bood ronounced againstthfmdefendant if he had anthingt is g and suff icxent c and havxng nothzn
Y g to say whybe therefore ordered and ause why
K but what he hadund ^Przsoi2ed and confined gn ad'udg d by heuC Oy r^` Should not be pronounced?readythe su ^ e
pervision oF the Chiliicothe Cor^ that deEendantaccording to Yaw the -epartment of Rehab^ ectionaz znstitute , Sell Jeffersonawarded. , and that he pay the ca 'litatio chiZZicothe
$t °F ^his n and Correcti°n 9 OF11O,APPezI rights stated Pr°secution for Wh ' f°r LIFE,I7efe;adant bY the Court. zcn executzon is
Walsh wishes counselto consider aPPointed•
aPPoiztt¢ent and because of indiadvise the 8ency,Robert L. Court At
4^p1^,•^q£^y crre+d -heiL v!a m t,s,^ura,crsn^v/3(geores, raxscasinn Gri.duat 70vls
. . .. . . .rr..^.v.. i
v/"cn. For;xrp'vJsprci. vLtcrlnr vlapees
,ti^tJ^li^L ENTRY!•• . ^ 4 ^.
+S te#eetaac bsrtto isassse^ ae a.nzare daX'a[ rosrc. +wclcad a picr` of• sne gu11e'r> Cw clwc lodiceseaC, vsa t1st+ daY bcae+he sae® ewcrr. LspcCOSace! by wwas9e1 +ad vasAti1Y atvlsdd o[ aifdbix taasClKuLibIIa7 Sicbts. ^
T"uCtent®r.stw Esemtesc usczaaLt t^Stdhss fac..rt p2r,n at s®e ^laryt, ^rsrsfosrt
= wetsr+ul aamt for pLsa w w&s.t AafdSGtsuaz> v3css aaawens at cbs coszL, autis s plta raP oeM taaccse cn tba 93dictaanc< ^•4S ^sssv^oa, tLa sz>^rc at^1a fnt.3^,7 +d^•SRSd the Js.Cs^dsaL at bis/lsst masricvt2o.a*A
i ".---2lsureuPaa c:ae oonLt Lha defaadsat at Lb® C •sa:®xm sads.nas ef rna <ot.sL.P 11ccYeupna c4e Couua•Y: iqrdsatscd ot C7te aa14 defead+nt 7.f be had aaythsixY Ye caY
v!'+7 lvdeseue ahvu.td not be promuarSd ata.iast Mx s»d lrAa; noch.ta4 but visst '.ae iiads$rRady
It Ls uarsfors ar+lercd arrd adaudZed h7 rbu COtittt tgse sxld defeedaac be#mpLY.sarsad snd emsliaed is r8e C1a132Seecha CerX,ecs,ivaai MLi=zzt, C&ZI1^eaabc,0$Sas
lor a ttrn oe Iwar (i) y+eara to yen (10) ycars ea cnaxic r.oe aAa tar a tsrs nf cbrert(3) Tcars c® firo (5) Paars ass eo+mt.s Lva arovch ehsrc-.fira (33) are tobe sexved ceatr,rresit vec]t cseb ocher, bnt r.aasecactx to ssacmre '.s mrme'aqC.StilLeuPC ia C1t13 [ase Ln bat stSlrCO1 CoCCV.;YenC stlLif LX 17117. • •
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L7.
State of OhioDepartment ofRehabilitation and Correction
CER TIFICA ^'. IO. I V OF RECORD
I, 3udith. K. Wise, Chief, Bureau of Records Management, duly authorized custodian of
the Ohio Department of Rehabilitation and Correction records, certify the following dates
of incarceration pertaining to SELL JEFFERSON, institution number 187975, to
be a true and accurate copy of the record which is on file in my office.
Inrnate Number: 72818Admitted: 3/14/67
Sentenced in Cuyahoga County to serve 1-20 years for Statutory Rape andShooting with intent to kill or woundParoled: 8/15/68Final Release from Parole Supervision: 8/20/69
Inmate Number: 142653Admitted: 8/6/75Sentenced in Cuyahoga County to serve 7-25 years for Aggravated Robbery andIllegal Possession of FirearrzzsParoled: 1/20/81Final Release from Parole Supervision; 2/11/82
Inmate Number: 187975Adxnitted: 12/3/85
Sentenced in Cuyahoga County to serve Life for Grand Theft, Tampering Wit,la.Records, Possession of Criminal Tools, Forgery, Uttering, Aggravated Murderand Aggravated RobberyParole Hearing Date:4/2000
. ^. , ,
Certification of Record (Sell Jefferson),page two
In testimony whereof, I subscribe my name and affix the seal of the Ohio Department of
ARehabilitation and Correction, this 26th day of September, 1996.
Ft
JUDITHK yYIS'.E, ChiefBureau of Records Management
Ohio Department afRehabilitation &Correction
(Q,
•,'*
JOhw :A. ky&►ststsrtt --tate !ub13.t ^l"Wsr
4 1"t Lme ttt**t{:^lvW^Ws Obto 43266
^ x SLx^. J t^4^ldT-lTS
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%ar mr• ^Y =ia raaPoase ta yourt taqairy of
;ps ". %itw Prt,ri~Iy dt^^casscd aadc,o^sraini :.^ ':s,=^a^^,^' ► af Mr. ,k#ferso" 4 f^la^tl x^t^as^e
Octdbrr ). 1+laffi.#re^` paroIs °o *
I 420653$ R
rsated T*Ibxvarr ^^ ^^si^,^ #^,t Z-b53 towrl^t his s^teoea
of tite ta#►ri^^=
ot a12 ^^ ,^s l^1^T^lTS,' adr#^d t1►o^ com"t
^ie f='^^• «t 5; tlfiS, to r4^cwenae° tma t^ty-ffve (25) Y"rs,^iil^vtse^ ^ass ^Stt+e^ to ^r le^stltrrtioa ^ ^
s twm 04' (7) sarAs tfK ea11 Journal of the `wrlt
t^ts eaist^ for +rhic'^ .id^'foroa^a saala irrrff^ilYfor IlSWarrat*4 No^^^ ^^ ^t aeas ^^o ^at11tbfg "Ote"e aat i I r0l48*44 00 1'rr°
19010 ^^ ilaoatirivR big a"'s:*#"** [_ew , offswkr ^s
jdam*^ "6
it ^^• ^^ "s faw a sitwtiarr %,bar* as^ ^tt, t^ o^#+^r ves 1+^
^^o^11► ^^^^ tis: tlM+e ia^tiRMtiaa `7 ^tultasrrt by tU Molt lrrolst^I1^. ^^ f^ ^f^t a^tt! 2^a12^Dy sTised ta the Comwasisy nM ►ti) t'ocsimiat
^{! s #sr^'^1 *0 1►at,is t• ^s^cl+^d tMe ltarl ralos1^ gra,atsdwa`rA so^'^ ^ ^^ #so f
3A. Z The mandatory factors indicated in AR 5120:1-1-07 were considered.
3B. Ratinnale: Cite specific factors relevant to the offense and offender:
The Board has determined that the inmate is not suitable for release at this time. The inmate has completed someprogramming; however, he has negative institutional conduct. The inmate's criminal history of violence, negative conduct-does not warrant a release at this time.
4. The above-indicated factors support one or all of the following reasons cited in AR 5120:1-1-07for continued incarceration,
A. Z 'There is substantial reason to believe that the inmate will engage in further criminal conduct, or that the inmate will notconform to such conditions of release as may be established under AR 5120:1-1-12.
B. Z There is substantial reason to believe that due to the serious nature of the crime, the release of the inmate into societywould create undue risk to public safety, or that due to the serious nature of the crime, the release of the inmate wouldnot further the interest of justice or be consistent with the welfare and security of society.
C. ® There is substantial reason to believe that due to serious infractions of division level 5120:9-06 of the AdministrativeCode, the release of the inmate would not act as a deterrent to the inmate or to other institutionalized inmates fromviolating institutional rules.
D. R Not applicable.
5P ."Tirne Served to Date: 331
arrived at by -- A. Prison Tinze.
nionths TPV Arrest Date (if applicable):
323 lsionths -+ B. Jail T'infe Credit: 8 months
B. Remaining Time to be Served:
T'o next hearing 36 months To Release months
Remaining time to be served cannot e.rceed td2e nt?a.ximum sentence
6A. Recomnaendation: CENTRAL OFFICE BOARD REVIEW CONTINUED Nov1,2015
DR1::3C)39 E(Rev. 031'2010) *A release recommetidation is subject to review and approval by the Parole Board Chair, and is not final until actiial release frotn custody occurs. The
physical release may be stopped by the Parole Board Chair up to and including the day of release if significant new ini'onnation is received that was not
considered at the release hearing. Significant new infonnation can include institution nile infractions and/or a petition from the Office of Victim Services
for a Ful: Board heacing prsuant3o section 5149.10 1 of the Ohio Revised Code.
^
IN THE SUPREME COURT OF OHIO
SELL JEFFERSON,
APPELLANT,
VS.
JASON BUNTING, WARDEN
MARION CORRECTIONS INST.,
MARION, OHIO 43302
APPELLETEE.
CASE NO.
ON APPEALS FROM THE MARION
COUNTY COURT OF APPEALS,
THIRD APPELLATE DISTRICT
COURT OF APPEALS
CASE NO. 09-13-026
NOTICE OF APPEALS OF APPELLANT SELL JEFFERSON
ATTORNET GENERAL OFFICE
/MIKE DEWINE/COUNSEL FOR APPELLETEE
INMATES CORRECTIONS LITIGATION SECTION
COLUMBUS, OHIO 43215
SELL JEFFERSON/PRO-SE APPELLANT
P,O.BOX 57
MARION, OHIO 43301
NOTICE OF APPEALS OF APPELLANT SELL JEFFERSON
APPELLANT Sell Jefferson hereby gives notice of appeals to
the Supreme Court of Ohio from the judgment of the Marion County
Court of Appeals, Third Appellate District, entered in Court
of Appeals case no. 09-13-026 on June 20,2013.
This case raises a substantial constitutional questions and
is one of public or great general interest.
Respectfully submitted
^ . ^
Sell e f '3rson
Appellant/Pro-se
CERTIFICATE OF SERVICE----------------------
I certify that a copy of this Notice of Appeals was sent
by regular U.S. mail to Appelletee Counsel, Attorney General,
Mike Dewine, Columbus, Ohio 43215 on June 2013.
Sell J fferson
SL
I 't
IN THE COURT OF APPEALS OF OffiOTHIRD APPELLATE DISTRICT
A'iA.RION COUiNTY
SELL JEFFERSON,
PETITION-ER,
V.
F ^^ EaCOURT ^?^ ^PPEAILS
JUN 2 0 201SV5
JASON BUNTIlI^'G, WARDEN,M AR.ION C 0RRECTI€:NALINSTITUTION,
RESPONDENT.
CASE NO. 9-13-26
,TI7DGIVIENTENTRY
This cause comes before the Court for determ.ination of the petition for writ
of habeas corpus.
Upon consideration the Court finds that the claims raised in the instant
action could have and were raised and determined in numerous, prior original
actions and appeals filed by Petitioner, including more than one action for writ of
habeas cor,pus. See, State ex Yel. Jeffersonerson v. Qhio Adult Parole Authority, 86
Ohio St.3d 304, 1999-Ohio-163, for writ of prohibition; State ex rel. Jefferson v.
Russo, 8^' Dist.No. 90682, 2008-Ohio-135, for writ of mandamus; State ex r-el.
Jefferson v. Wilkerson, 10"' Dist.No. 05AP-520, 2006-Ohio-5946, for writ of
mandamus; Jefferson v. Beiglatler, 3rd Dist. No. 9-07-10, May 31; 2007,
unreported, for writ of habeas corpus; Jefferson v. Morris, 48 Obio App.3d 81
Case No. 9-13-26
(1988), for writ of habeas corpus; and Jefferson v. Morris, 39 Ohio St.3d 714, for
writ of habeas corpus.
The doctrine of res judicata bars successive habeas corpus petitions if the
claims could have been raised. in the initial petition. See State ex rel. Rash v.
SUBSEQUENT HISTORY: Cause dismissed by Jef-ferson v. fVorris, 39 Ohio St. 3d 714, 534 N.E.2d 76,1988 Ohio LEXIS 1286 (1988)Related proceeding at State ex rel. Jefferson v. OhioAdult Parole Auth., 86 Ohio St. 3d 304, 1999 Ohio 163,714 NE.2d 926, 1999 Ohio LEXIS 2644 (1999)
PRIOR HISTORY: [***1[ APPEAL: Court ofAppeals for Scioto County.State v. Jefferson, 1977 Ohio App. LEXIS 7287 (Ohio Ct.App., Cuyahoga County, Feb. 3, 1977)
DISPOSITION: Judgment affirmed.
HEADNOTES
Criminal law -- Parole -- Void parole -- Prisonerreleased by mistake may be recommitted -- Habeas cor-pus relief not available-- Sentencing court retains juris-diction.
SYLLABUS
JUDGES: Stephenson, J. Abele, J., concurs. Grey,P.J,, concurs in part and dissents in part. Grey, P,J.concurring in part and dissenting in part.
OPINION BY: STEPHENSON
OPINION
[*81] [**2961 This is an appeal from a judg-ment entered by the Scioto County Court of ComrnonPleas dismissing the petition for a writ of habeas corpusfiled pursuant to R.C. 2725.01 et seq. by Sell Jefferson,petitioner below and appellant herein.
Appellant's sole assignment [***2] of error asserts:
"The trial court committed reversible error in dis-missing appellant's petition for writ of habeas corpuswhere appellant claimed that his constitutional rightswere violated in post-trial proceedings by prison officialswhere 'appellant had been released from prison and theprison officials reacquired custody of appellant in viola-tion of the Due Process Clause of the United States Con-stitution."
A void parole has no effect on the original judg-ment; and, where the sentence is lawful, a prisoner atlarge on an illegal and void parole is on the same planeas an escapee. Accordingly, no rights of the prisoner areviolated under a purported parole, which is invalid, whenlie is returned to prison. The paroling authority can re-commit a prisoner who is released by mistake when hissentence has not expired.
COUNSEL: Sell.Iefferson, pro se.
Anthony J. Celebrezze, Jr., attorney general, and Alex-ander G. Thomas, for appellee.
From the averments of the petition and memoran-dum the following appears. [**2971 On April 15,1987, appellant filed a"Petition For Writ of HabeasCorpus and/or Rule To Show Cause" in the SciotoCounty Court of Common Pleas. In his petition, appel-lant avers, inter alia, that he was sentenced by theCuyahoga County Court of Common Pleas on May 7,1975 to a term of seven to twenty-five years' imprison-ment and a term of life imprisonment for convictions ofaggravated robbery and aggravated murder on July 21,1975, in case No. CIZ-17177. Appellant further aversthat he was subsequently released on parole in Jamaary1981 and was granted a "Final Release" by the OhioAdult Parole Authority. Appellant concedes in his
memorandum in support of his petition that while onparole appellant [***3] "became involved in some for-geries ***" and is now serving sentences for such of-fenses. ' Appellant also avers in his petition that on Oc-tober 2, 1985, appellant was sent to Chilticotbe Correc-tional Institute to serve the term imposed in case No.CR-17177, and that appellant was denied all credit fortime served on the (*82) sentence before he was pa-roled. Finally, appellant avers that he is being uncon-stitutionally detained in the Southern Ohio CorrectionalFacility.
1 If appellant is being held pursuant to validconvictions for forgery and not entitled to imme-diate release in any event, he would not be enti-tled to a writ of habeas corpus. Geroski v.Haskins (1964), 176 Ohio St. 393, 27 O.O. 2d359, 199 N.E. 2d 881; Rollins v. Haskins (1964),176 Ohio St. 394, 27 U.O. 2d 359, 199 N.E. 2d868. We do not affirm on this ground since theduration of the sentences for forgery do not ap-pear in the record.
Appellant's assign.ment of error essentially assertsthat since appellant had been discharged [***4] fromparole by the Ohio Adult Parole Authority, the CuyahogaCounty Court of Common Pleas was without jurisdic-tion, statutory or otherwise, to issue process forre-confineanent of appellant. An action in habeas corpusis civil in nature rather than criminal. Flenderson v.James (1895), 52 Ohio St. 242, 259, 39 N.E. 805, 807;State, ex rel. Colby, v. Reshetylo (1972), 30 Ohio App. 2d183, 184, 59 0;0. 2d 306, 307, 284 N.E. 2d 188, 189. Itis axiomatic that in order for a court to dismiss a com-plaint for failure to state a claim upon which relief can begranted, it must appear beyond doubt from the complaintthat the plaintiff can prove no set of facts which entitlehim to prevail. O'Brien v. University Community Ten-ants Union (1975), 42 Ohio St. 2d 242, 710.0. 2d 223,327 N.E. 2d 753, syllabus; Egan v. National Distillers &Chemical Corp. (1986), 25 Ohio St. 3d 176, 186, 25 OBR243, 252, 495 N.E. 2d 904, 912 (Douglas, J., concurring);Civ. R. 12(B)(6)_
Appellant concludes that he has no other plain andspeedy remedy at law to test the legality of his confine-ment and for that reason the only available remedy toappellant is a writ of habeas corpus. (***5] No claimis asserted that the court imposing sentence upon the] 975 convictions lacked jurisdiction of the person orsubject matter,
The Ohio Supreme Court in Freeman v. Maxwell(1965), 4 Ohio St. 2d 4, 33 O.O. 2d 2, 210 N.E. 2d 885,held the statutory habeas corpus relief pursuant to R. C.Chapter 2725 to be available only when the sentencing
Page 2
court lacks jurisdiction by reason of R, C. 2725.05, which
reads as follows:
"If it appears that a person alleged to be restrained ofhis liberty is in the custody of an officer under processissued by a court or magistrate, or by virtue of the judg-ment or order of a court of record, and that the court ormagistrate had jurisdiction to issue the process, renderthe judgment, or make the order, the writ of habeas cor-pus shall not be allowed. If the jurisdiction appears af-ter the writ is allowed, the person shall not be dischargedby reason of any informality or defect in the process,judgment, or order."
Even though appellant was recommitted to serve hissentence by a subsequent order of the trial court, he isbeing held under the original judgment and sentence, andsince the sentencing court had jurisdiction, relief underR,C. Chapter [***6] 2725 is not available to appellant.
Appellant argues he is being held not upon the orig-inal judgment of conviction and sentence, but under arecommitment judgment which the court lacked jurisdic-tion to enter. Assuming, arguendo, that C**2981 ap-pellant is being held pursuant to the recommitmentjudgment, we hold appellant nevertheless has not stated aclaim for relief.
Appellant argues the applicability of decisions of thefederal courts that a prisoner erroneously paroled withouthis fault cannot be made to serve the remainder of hissentence. These holdings are summarized in UnitedStates v. Merritt (D.D.C. 1979), 478 F. Supp. 804,
806-807, as follows:
"It is well settled that when a prisoner is releasedprior to service or expiration of his sentence through nofault or connivance of his own, and the authorities makeno attempt over a prolonged period of time to reacquirecustody over him, he may be given credit for the timeinvolved, and he will not be required at some later timeto serve the remainder of his sentence. [ *831 White v.Pearlrnan, 42 F. 2d 788 (10th Cir. 1930); Bailey v. Cic-cone, 420 F. Supp. 344, 347 (A!D. Mo. 1976); Albori v.United [***71 States, 67 F. 2d 4 (9th Cir. 1933).
Other courts have reached a similar result under what hasbeen called a waiver of jurisdiction theory. Smith v.Swope, 91 F. 2d 260 (9th Cir. 1937); Shields v. Beto, 370F. 2d 1003 (5th Cir. 1967); In re Jennings, 118 F. 479(E. D. Mo. 1902); United States v. Croft, 450 F. 2d 1094(6th Cir. 1971); Lanier v. Williams, 361 F. Supp. 944
(E. D: N. C. 1973).
"Although different courts have thus chosen differ-ent theoretical bases for their conclusions, these conclu-sions do not differ in practice. A convicted person willnot be excused from serving his sentence merely becausesomeone in a ministerial capacity makes a mistake with
respect to its execution. Several additional factors mustbe present before relief will be granted -- the result mustnot be attributable to the defendant himself; the action ofthe authorities must amount to more than simple neglect;and the situation brought about by defendant's releaseand his reincarceration must be 'unequivocally incon-sistent with "fundamental principles of liberty and jus-tice,"' See Piper v. Estelle, 485 F. 2d 245, 246 (5th Cir.
1973)."
The general rule, however, [***8] is stated asfollows:
"A void parole has no effect on the original judg-ment; and, where the sentence is lawful, a prisoner atlarge on an illegal and void parole is on the same planeas an escapee. Accordingly, no rights of the prisoner areviolated under a purported parole, which is invalid, whenhe is returned to prison. The paroling authority can re-commit a prisoner who is released by mistake when hissentence has not expired," (Footnotes omitted.) 67A
Corpus Juris Secundum ( 1978) 95, Pardon & Parole,Section 57. See, also, Harris v. Cupp (1971), 5 Ore.App. 566, 485 P. 2d 1113; People, e-x rel. Miller, v. Nier-
stheimer (1949), 402 Ill. 599, 85 N.E. 2d 10; UnitedStates, ex rel: Cain, v. United States Bd of Parole (N13.
Ilf. 1972), 349 F. Supp. 1177, affirmed (C.A. 7, 1973),486 F. 2d 1406.
A prisoner serving a sentence for life for the offenseof aggravated murder, which sentence was imposed foran offense committed prior to October 19, 1981, be-comes eligible for parole after serving a term of fifteenfull years. R.C. 2967.13(B). Manifestly, appellant wasnot eligible for parole and the Adult Parole Authoritywas without authority to parole appellant j***91 sinceby his own admission appellant had served only aboutfive years of his life sentence.
Even if the exceptions recognized by the federalcourts, supra, are applicable to Ohio courts, appellantwould still not be entitled to release. The "credit" theoryis negated in that giving appellant credit for the period hewas erroneously released from custody, he still has notserved the minimum sentence for parole consideration.
Nor would the waiver theory be applicable, inas-much as continued confinement would not be "unequiv-ocally" inconsistent with "fundamental principles of lib-erty and justice." Those courts adopting that view haverequired that a sliowing be made that the improperly re-leased prisoner had adjusted to the community and was a
Page 3
law-abiding citizen. Johnson v. Williford (C.A. 9,1982), 682 F. 2d 868; State v. Kline (La. 1985), 475 So.2d 1093; United States v. Merritt, supra. Appellant hav-ing committed the offense of aggravated murder, it is[**299) in no way inconsistent with fundamental jus-tice to require such sentence to be served.
The assignment of error is overruled and the judg-ment is affirmed.
CONCUR BY: GREY (In Part)
DISSENT BY: GREY (In Part)
DISSENT
GREY, P.J., concurring [***101 in part and dis-senting in part. I concur in the judgment of affirmance,but on the merits, not on the jurisdictional issue. Even ifpetitioner were given credit for the time he was released,he would not be entitled to habeas corpus relief at thepresent time.
However, if there were a prisoner who did meet thestandards set forth in State v. Kline (La. 1985), 475 So.
2d 1093; Johnson v. Williford (C.A. 9, 1982), 682 F. 2d
868; or United States v. Merritt (D.D.C. 1979), 478 F.
Supp. 804, how would he present such a claim in an Ohiocourt? In Kline, the opinion mentions a petition in cer-tiorari and review. In 1Verritt, the action was broughtunder a federal code section, Section 2255, Title 28, U.S.
Code, allowing actions on sentencing decisions. John-son was a federal habeas corpus decision. If recommit-ment would be unequivocally inconsistent with the fun-damental principles of liberty and justice, and if habeascorpus is not available on jurisdictional grounds, howcan such a claim of fundamental principle be decided?
'W'hile not directly on point, two cases seems to in-dicate that a case involving proper credit for time"seaved" may be cognizable [***11] in habeas corpus:McNar,y v. Green (1967), 12 Ohio St. 2d 10, 41 0.0. 2d85, 230 N.E. 2d 649, and Hoff v. Wilson (1986), 27 OhioSt. 3d 22, 27 OBR 440, 500 M.E. 2d 1366.
I would hold that the trial court erred in dismissingthe habeas corpus petition on jurisdictional grounds, butin light of the fact that petitioner's complaint and memo-randum for habeas corpus relief admits on its face thatwhile released he was convicted of forgeries, it does -failto state a claim under the fundamental principle theory,
AR&O
LeXisNeXiS^
Page I
State ex rel. Sell Jefferson, Relator, v. Reginald Wilkinson, Director, Ohio Depart-ment of Rehabilitation and [Carrection], Respondent.
No. 05AP-520
COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLINCOUNTY
2006 Ohio 5946; 2006 Ohio App. LEXIS 5884
November 9, 2006, Rendered
PRIOR HISTORY: State ex rel. Jefferson v. Ohio AdultParole Auth., 86 Ohio St. 3d 304, 1999 Ohio 163, 7141V.E.2d 926, 1999 Ohio LEXIS 2644 (1999)
DISPOSITION: [**i] Objections overruled; re-spondent's motion to dismiss granted; and complaintdismissed.
COUNSEL: Sell Jefferson, Pro se.
Jim Petro, Attorney General, and Bruce D. Horrigan, forrespondeilt.
JI3DGES: SADLER, J. PETREE and FRENCH, JJ.,concur.
OPINION BY: SADLER
OPINION
(REGULAR CALENDAR)
DECISION
IN 1vIANDANlUS ON OBJECTIONS TO MAGIS-TRATE'S DECISION
SADLER, J.
[*p11 Relator, Sell Jefferson ("relator") filed thisoriginal action asking this court to issue a writ of man-damus and declaratory judgment finding that respondent,Reginald Wilkinson, Director of the Ohio Department ofRehabilitation and Correction ("respondent" or"ODRC"), is required to credit the sentence he is cur-rently serving for aggravated murder with time he servedon a related conviction for aggravated robbery.
[*P21 Respondent filed a motion to dismiss,which we referred to a magistrate pursuant to Civ.R. 53and Loc,R. 12(M) of the Tenth District Court of Appeals.The magistrate issued a decision granting respondent'smotion to dismiss. Relator then filed objections to themagistrate's decision. (Attached as Appendix A.)
[*P31 In 1975, relator was initially charged withaggravated murder and [**2J aggravated robbery aris-ing out of the same incident. At the first trial, relator wasconvicted on the aggravated robbery charge, but the jurywas unable to reach a verdict on the aggravated murdercharge. Relator was sentenced to a term of seven to 25years of imprisonment. Subsequently, relator was retriedand convicted for the aggravated murder charge, and wassentenced to life in prison. Relator's convictions wereupheld on appeal, State v. Jefferson (Feb. 3, 1977),Cuyahoga App. No. 35485, 1977 Ohio App, LEXIS 7287,
[*P41 For some reason, ODRC was not notified ofrelator's life sentence on the aggravated murder charge.In 1981, relator was paroled on the offense of aggravatedrobbery, with final release from parole being granted in1982. In 1985, relator was ordered returned to ODRC'scustody because he should not have been paroled giventhe life sentence he received on the accompanying ag-gravated murder charge, On April 15, 1987, relator fileda petition seeking a writ of habeas corpus with the SciotoCounty Court of Common Pleas, arguing that he shouldbe released from further incarceration due to the grant offinal release from parole. Relator argued a number oflegal issues in support of his [**3J claim, including thathe was not properly credited with time served on theaggravated robbery charge. The Fourth District Court ofAppeals upheld the denial of the requested writ on thegrounds that the initial grant of parole was void, and thatrelator was not eligible for parole at that point because he
2006 Ohio 5946, *; 2006 Ohio App. LEXIS 5884, **
had not served enough of his life sentence to be eligiblefor parole. Jefferson v. ]Vorris (1988), 48 Ohio flpp.3d81, 548 N. E.2d 296.
[*P5] Relator's complaint includes a number ofclaims. In the prefatory portion of the complaint, relatorclaims he "seeks judicial intervention to direct [respond-ent] to adhere to a lawful judgment issued by a court ofcompetent jurisdiction in the State of Ohio, seeks an or-der voiding a parole board decision, seeks declaratoryjudgment in reference to the denial of equal protection ofthe law[.]" The complaint then sets forth five specificclaims, as follows:
A. The director and his employee's
(sic) have failed to follow the order issued
in the attached "certified copy of sentenc-
ing" to commence calculation of [rela-
tor's] sentence for aggravated murder
from the date ordered by the sentencing
court.
B. The director [**4] and his em-ployee's (sic) have failed to consider [re-lator] parole eligible under the parole re-view statute in effect when he was sen-tenced in 1975 and instead, have appliedan administrative guideline to "adminis-tratively" enhance his minimum prisonterm in violation of due process of lawand this does constitute a violation of theEx Post Facto Clause of the United Statesand Ohio Constitution's (sic) (Emphasissic.)
C. [Declare] that the director and hisemployee's (sic) bave violated the separa-tion of powers doctrine in that they re-fused to calculate the sentence for aggra-vated robbery & aggravated murder to runconcurrent. (Emphasis sic.)
D. [Declare] that the director and hisemployee's (sic) have denied to [relator]the equal protection of the law when re-fusing to allow him to earn good-time[credits] and other similarly situated pris-oner's (sic) were permitted to earn goodtime prior to the expiration of their defi-nite prison tei-ms, (Emphasis sic.)
E. Order calculation of the sen-tence(s) "concurrently" as [depicted in]the attached certified copy of the sentencefor the aggravated murder conviction.
Page 2
[*P61 Respondent [**5] filed a motion to dis-miss the action pursuant to Civ.R.12(B)(6) alleging thatrelator's complaint failed to state a claim for which reliefcan be granted. The purpose of a motion to dismiss forfailure to state a claim for which relief can be granted isto test the sufficiency of the complaint. State ex rel,Boggs v. Springfield Local School Dist. Bd. Of Ed.(1995), 72 Ohio St.3d 94, 1995 Ohio 202, 647 N.E.2d788. In order for a case to be dismissed for failure tostate a claim, it must appear beyond doubt that, evenassuniing all factual allegations in the complaint are true,the nonmoving party can prove no set of facts that wouldentitle that party to the relief requested. O'Brien v. Univ.Comm. Tenants Union, Inc. (1975), 42 Ohio St.2d 242,327 N.E.2d 753.
[*P7] Relator's complaint states that he is seekingbotb relief in mandamus and a declaratory judgment.Respondent's motion, and the magistrate's decision, fo-cused entirely on the issue of whether relator's complaintstates a claim for a writ of mandamus, but did not ad=dress whether relator has any possible claim for declara-tory judgment.
[*P81 Respondent's motion to dismiss [**61 andthe magistrate°s decision also focused solely on the ques-tion of whether relator's claims are barred by the collat-eral estoppel aspect of res judicata. Collateral estoppelprecludes relitigation of an issue that has been actuallyand necessarily litigated in a prrior action. Fort FiyeTeachers Assn. v. State Emp. Rels. Bd, 102 Ohio St. 3d283, 2004 Ohio 2947, 809 N.E.2d 1130, Res judicataprecludes a litigant from raising alternative legal theoriesthat could have been raised in a prior proceeding. Turnerv. Ishee, 98 Ohio St.3d 411, 2003 Ohio 1671, 786 N.E.2d54. The magistrate concluded that since relator's 1988habeas corpus petition involved issues regarding theproper credit to be given to the time relator served on theaggravated robbery charge, relator is precluded fromrelitigating those i ssues.
[*P9] Respondent and the magistrate treated theissue as whether relator should be credited with havingserved some of his life sentence on the aggravated mur-der conviction during the time he was serving his sen-tence on the aggravated robbery conviction, an issue thatwas squarely raised in relator's 1988 habeas corpusciaim. In the third and 1**71 fifth claims in his corn-plaint, relator actually framed this issue as whether hissentences for aggravated robbery and aggravated murdershould have been treated by respondent as concurrentsentences, and whether respondent's failure to treat thesentences as concurrent sentences violated any constitu-tional provisions. In addition, in the first claim in hiscomplaint, relator argues that respondent has refused tofollow the trial court's sentencing order by failing to startrelator's aggravated murder sentence on the date speci-
2006 Ohio 5946, *; 2006 Ohio App. LEXIS 5884, **
fied by the trial court, which is essentially the sameclaim. Assuming that the issues raised in relator's first,third, and fifth claims are separate from the issue ofwhether relator should have been credited with timeserved on the aggravated robbery conviction, it is clearthese issues arose from the same nucleus of facts as the1988 habeas corpus petition, and could have been raisedas part of the same claim. Therefore, res judicata pre-cludes relator from litigating those claims.
[*Pl®j In the second claim in his complaint, rela-tor claitned that respondent has failed to consider himeligible under the parole statute that was in effect in1975, and have [**8] instead administratively enhancedhis minimum prison term in violation of the UnitedStates and Ohio Constitutions. It is not clear from therecord what the basis for this claim is, because none ofthe documents relator attached to his complaint show anydecision respondent has made regarding his parole. If hisclaim arises from the same nucleus of facts that gave riseto his 1988 habeas corpus petition, then res judicatawould preclude relator from litigating this claim as well.To the extent that the claim is based on some more recentaction by respondent, relator's complaint does not refer toor include any evidence of that action, and therefore failsto state any claim for which relief can be granted.
(*P11] Finally, in his fourth claim, relator claimsrespondent has denied him equal protection of the law byrefusing to allow him to earn good time credit when oth-er similarly situated prisoners were allowed to accumu-late such credit. As above, to the extent that this claimrelates either to issues that could have been raised in re-lator's 1988 habeas corpus proceeding, res judicatawould preclude litigation of the claim. We also note thatin 1998, relator filed an action with [**9] this courtseeking a writ of prohibition against the Adult ParoleAuthority that would have prohibited any action frombeing taken with respect to relator's parole. This courtdismissed that action, and the dismissal was upheld bythe Ohio Supreme Court in State ex rel. Jefferson v. OhioAdult Parole Authority (1999), 86 Ohio St. 3d 304, 1999Ohio 163, 714 N.E.2d 926, which also may have a pre-clusive effect on relator's fourth claim. Even assuniingthat res judicata would not preclude litigation of relator'sfourth claim, relator's complaint fails to state any claimfor which relief can be granted, because nothing in thecomplaint actually indicates that relator has been deniedgood time credit that has been granted to similarly situ-ated inmates.
[*P12) Therefore, we adopt the magistrate's deci-sion, as modified as our own, including the findings offact and conclusions of law therein. In accordance withthe magistrate's decision, respondent's motion to dismissis granted and relator's complaint is dasmissed.
Page 3
Objections overruled; respondent's motion to dismissgranted; and complaint dismissed.
PETREE and FRENCH, JJ., concur.
(APPENDIX A)
I'THE COURT OF APPEALS (**10] OF C3HIO
TENTH APPELLATE DISTRICT
State ex rel. Sell Jefferson,
Relator,
V.
No. 05AP-520
Reginald Wilkinson, Director, Ohio
(REGULAR CALENDAR)
Department of Rehabilitation and
[Correction],
Respondent.
MAGISTRATE'S DECISION
Rendered on January 31, 2006
Sell Jefferson, pro se.
Jirn Petro, Attorney General, and Bruce D. Horrf•-gan, for respondent.
IN MANDAMUS
ON MOTION TO DISMISS
(*P13] In this original action, relator, Sell Jeffer-son, requests avw7it of mandamus ordering respondentDirector of the Ohio Department of Rehabilitation andCorrection to credit the sentence he is now serving foraggravated murder with the time he served on a relatedconviction for aggravated robbery.
Findings of Fact:
[*P141 1. On May 25, 2005, relator, an inmate ofthe Marion Correctional Institution, filed this mandamusaction.
[*P15] 2. According to the complaint, relator wasconvicted in 1975 of aggravated robbery and aggravatedmurder,
[*P16] 3. According to the complaint, upon beingtransported to prison iai August 1975, the CuyahogaCounty Sheriffs Department failed to deliver the sen-tencing entry for the aggravated [**11] murder convic-tion,
[*P17] 4. According to the complaint, relator wasreleased on parole in January 1981, and subsequently
granted a final release on the aggravated robbery convic- tor filed a habeas corpus action in the Scioto Countytion in February 1982. Court of Common Pleas alleging a factual scenario simi-
[*i'18] 5. According to the complaint, in January lar to the one alleged in this action. InJefferson 1, the
1985, he was arrested and transported back to prison to Fourth District Court of Appeals affirmed the judgmentof the common pleas court denying relator's request for a
serve his sentence for aggravated murder. ,ATIt of habeas corpus.
[*P19] 6. According to the complaint, the Cuya-hoga County Court of Common Pleas had not orderedthe two sentences be served consecutively and, thus, heis allegedly entitled to have his sentence for aggravatedmurder credited with the time he served on the aggra-vated robbery.
[*P20] 7. According to the complaint, respondenthas unlawfully refused to credit his sentence for aggra-vated murder with the time he served for aggravatedrobbery. According to the complaint, respondent's refusalto credit his sentence has unlawfully effected his paroleeligibility.
[*P21] 8. On June 27, 2005, respondent filed amotion to dismiss.
[*P26] In State ex rel. Jefferson v. Ohio AdultParole ,4uth. (1999), 86 f)hio St.3d 304, 1999 Ohio 163,714 N.E.2d 926 ("Jefferson II°'), the Supreme Court ofOhio affirmed the judgment of this court: ln that deci-sion, the court states, at 305:
* * * [T]he issue Jefferson raises herehas been previously adjudicated in hiscourt of appeals habeas corpus action, andconsequently, the collateral estoppel as-pect of res _judicata bars Jefferson fromrelitigating the issue in this action. ***
(Emphasis sic.)
[*P22] 9. Relator opposes the motion.
Conclusions of Law:
[*P23] It is the magistrate's decision that thiscourt grant respondent's motion to dismiss, as more fullyexplained [**12] below.
[*P24] As respondent correctly claims, this actionis barred by the doctrines of collateral estoppel and resjudicata.
[*P25] As indicated in Iefferson v. Morris (1988),48 Ohio App.3d 81, 548 N. E.2d 296 ("Jefferson 1"), rela-
[*P27] Based upon the above authorities, it isclear that this action is barred by the collateral estoppelaspect [**13] of res judicata.
[*P28] Accordingly, for all the above reasons, it isthe magistrate's decision that this court gran:t respond-ent's motion to dismiss.
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