IN THE SUPREME COURT OF OHIO
STATE OF O$IO6 EX REL.
MILTON CO'TTONe
Appellant,
CARL S. ANDERSl1N, iPARDEM;
Appellee(s) et al.
CASE FO. 2011-1534
On Appeal From The LorainCounty Court of Appeals,Ninth Appellate District
Court Of AppealsCase No. 10CA009830
BRIEF OF APPELLANT MILTON COTTON
liIPPEAL FROM THE NINTH DISTRICT COURT OF APPEAL
COUNSEL FOR APPELLANT: ( 28 USC § 1654)
MILTON CtTTON,. A- 214-3171800 S. Avon-Belden RoadC,RAFTOHe OHIO 44044
COUNSEL FOR APPELLEE(S)S
THELMA TH®PIAS PRICE (0033976)ATTORNEY GELYERAL
CORRECTION LITIGATION SECTION1 5 0 EAST GAY STREET# 16th Fl.COLUMBUS, ®IlIO 43215-6801
OCT 1 1''^o 1 i
CLERK ®F'CaURTSUPREM E CpuRT,pF OHIO
CLERK T- suO^^RTSU^'^^AJi^ ^t,Uy;^^^ UF OHdU
TABLE OF CONTENTS
TABLE OF AUTHORITIES ... ...............................
STATEMENT OF PEOPOSITIONPRESENTED FOR REVIEW ...................................
I. PROCEDURAL BACKGROUND ..1 ...........................
II. MATERIAL FACTS .....................................
III. STANDARD FOR SUMMARY JUDGMENT ..,.,.,,.,,,,,,..,,,0,
ARGUMENT
PROPOSITION NO. II
THE APPELLATE COURT COMMITTED PREJUDICIALERROR IN. NOT GRANTING SUMMARY JUDGMENT TOTHE APPELLANT
PROPOSITION NO. II
..................................
PAGE
6-7
7-8
"THE NINTH DISTRICT COURT OF APPEALS COMMITTEDPREJUDICIAL ERROR AND DENIED THE APPELLANTDUE PROCESS OF LAW WHEN IT DID NOT GIVEPRECLUSIVE EFFECT IN THE JUDGMENT OF THECOURT OF APPEALS." ............................. 8-10
PROPOSITION NO. III
°THE NINTH DISTRICT COURT OF APPEALS CONNITTEDPREJUDICIAL ERROR AND DENIED THE APPELLANTDUE PROCESS OF LAW WHEN IT WAS PRECLUDEDBY THE DOCTRINE OF THE LAW OF THE CASE[.]" ..... 8-10
V. CONCLUSION ..........................................
CERTIFICATE OF SERVICE ...................................
APP^''.NHIX ................................................. 12
A TRUE AND CERTIFIED COPY OF THE DECISION AND JOURNALENTRY IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICTeCOTTON v. ANDERSON,, APP, NO. 10CA009830; DATED AUGUST81 2011 (APPENDIX A) .............................. ........ 54-60
A TRUE AND CERTIFIED COPY OF THE MANDATE/DECISION ANDJOURNAL ENTRY OF THE NINTH DISTRICT APPELLATE COURT'SCASE IN COTTON V. ANDERSONt APP. NO.: 04CA008536,2005-ohic-994; DATED MARCH 9, 2005. (APPENDIX B).... 09000. 61-69
-i_
TABLE OF CONTENTS CaNTINUES
A TRUE COPY OF THE COURT ORDER; RESPONDENT HAVING FILEDHIS MOTION FOR SUMNARY JUDGAlENT ON 01/31/08; PETITIONERGRANTED UNTIL 03/14/08 TO FILE A RESPONSE; RESPONDENTGRANTED UNTIL 03/31/08 TO FILE A REPLY. (APPENDIX C) ,,,., - 70
A TRUE AND CERTIFIED COPY OF SENTENCE; (R.C. 2725.04(D))IN STATE v. COTTON, CUYAHOGA COUNTY COURT OF COMMONPLEAS CASE NO. CR-281730; DATED AUGUST 14, 1992.(APPENDIX D)
...................^r.....r.....Y.............
TABLE OF AUTHORITIES CITED
CASES
Cotton v. Anderson, 2005-Ohio-994 ...... ..................Burdine v. Aver Dennison Corp., 2000-Ohio App. LEXIS
=0 ....... .....................:....r.........1...........-.
Goodson v McDonough Power E-ui ,(1983), 443 N.E.2d 979 ...................................................
Koos v. Central Ohio Cellular, Inc., (1994) 94 OhioApp.. 3^ 57
•............r..........a ...w....r...........r
Morris v. Ohio Std. Oil Co,(1982), 433 N.E. 2d 615 .....
Nolan v. Nolan, 42-6 N.R. 2d 410 .... .. . . . . . ..... . . .. . . . . . .
Peterson v. Buke e Steel Casings, (1999) 729 N.E. 2d816-1 7 .......... ........................................
71
PAGE
8-9
10
6
8-10
7
State ex rel. Dailey v. Morgan, 761 N.E. 2d 140-141 7
Struzynski v. Borden Chem. Div. Borden, Inc., 118 N.E.
79 .......................•.............-............-.-.. 6
STATUTORY PROVISIONS
Ohio Revised Code Section.2725.04(D) .........9
RULE
Ohio Rules of Civil Procedure 56(C) ..................... 61 -ii-
STATEMENT OF PROPOSITIONSOF LAW PRESENTED FOR REVIEW
ARGUMENT
PORPOSITION NO. I
THE APPELLATE COURT COMMITTED PREJUDICIALERROR IN NOT GRANTING SUMMARY JUDGMENT TOAPPELLANT.
PROPOSITION NO. II
"THE NINTH DISTRICT COURT OF APPEALS COMMITTEDPREJUDICIAL ERROR AND DENIED THE APPELLANTDUE PROCESS OF LAW WHEN IT DID NOT GIVEPRECLUSIVE EFFECT IN THE JUDGMENT OF THE COURTOF APPEALS.~
PROPOSITION NO. III
"THE NINTH DISTRICT COURT OF APPEALS COMMITTEDPREJUDICIAL ERROR AND DENIED THE APPELLANTDUE PROCESS OF LAW WHEN IT WAS PRECLUUED BYTHE DOCTRINE OF THE LAW OF THE CASEL.)"
I. PROCEDURAL BACKGROUND
Because this is the third time this matter was before
the Ninth District Court of Appeals, Appellant's convictions
and sentences are detailed in this appeal as they are in
Appellant's prior appeal. See Cotton v. Anderson, 9th Dist.
No. 04CA808536, 2005-ohio-994, at 11-9 See, Certified Copy
at (Appendix B) On January 31, 2007, Appellees filed a Motion
for Summary Judgment. On 2/4/08 the trial court issued an ®rder.
Petitioner granted until 03/14/08 to file a Response; Respondent
granted until 03/31/08 to file a Reply. id. at (Appendix C)
On March 6, Appellant filed his Response, Cross-Motion for
Summary Judgment. Appellee failed their reciprocal burden to
file a timely Reply. On. May 24, 2010, the trial court denied
Appellant's Sum®ary Judgment. See, Certified Judgment Entry
(Appendix D) Appellant filed a timely appeal for the third time
to the Ninth Appellate District. On August 8, 2011, the appeals
court granted appellee(s) Motion for Summary Judgment. See,
Certified Copy Decision And Journal Entry at (Appendix A)
II. MATERIAL FACTS: [22-9]
[12) On March 30, 2004, Milton Cotton filed a petition for
writ of Habeas Corpus, alleging that Appellee, Carl Anderson,
warden of Grafton Correctional institution, was "lfnowingly
implementing an unlawful liberty restraint without jurisdiction
to do so[.]" Appellant alleged three qrounds in support of his
writ, to wit:
(Page 1)
(1) that he is.illegally imprisoned and restrained, because
appellee calculated and imposed a sentence upon appellant for
his crimes in the amount of 641 to 210 years for his indefinite
sentences; (2) that he is illegally imprisoned and restrained,
because appellee "Corrected" sentencing errors by imposing
appellee•s interpretation of a. proper term of sentence; and
(3) that he is illegally imprisoned and restrained, because
the trial court had no authority to impose prison sentences
in case numbers CR-259650 and CR-281730 since the trial court
did not find appellant guilty of any crimes in regard to those
cases. Id. (MCotton Iu) at 12
[13] Appellant appended to his petition for writ of habeas
corpus copies of the relevant commitments. In additipn, appellant
appended to his writ affidavits as t®; prior actions and his
indigency. See Cotton v. Anderson, 9th Dist. No. 04CA008536,
2005-E)hio-994, at 13 ("Cotton I").
[24] Pursuant, to journal entry filed June 14, 1991, appellant
was sentenced after conviction in case number CR-257742 to one
and one-half years for the crime of grand theft motor vehicle,
in violation of R.C. 2913.02; to one year for the crime of
failure to comply with order or signal of police officer, in
violation of R.C. 2921.331; and to one year for the crime of
possession of criminal tools, in violation of R.C. 2923.24,
each term to be served consecutively. Pursuant to journal entry
filed June 17, 1991, appellant was sentenced after conviction
to two to ten years; indefinite, for the crime of receiving
(Page 2)
stolen property, which term was to be served consecutively with
the sentence ordered in case number CR-257742. Id.
("Cotton I') at $4
[15] Pursuant to a certified copy of sentence, on August
14, 1992, appellant was sentenced after conviction in case number
CR-2811731 to six months for the crime of attempted theft, in
violation of R.C. 2923.02 and 2913.02. Finally, pursuant to
a certified copy of sentence, on August 14, 1992, appellant
was sentenced after conviction in case number CR-281730 to four
to ten years, indefinite, on each of five counts of receiving
stolen property, in violation of R.C. 2913.51; to one-and-a-
half to five years, indefinite, on each of two counts of
concealing identity of motor vehicle, in violation of R.C.
4549.62; to one-and-a-half to five years, indefinite, on each
of four counts of possession of criminal tools, in violation
af R.C. 2923.24; to four yearsv definite, in each of two counts
of title law violation, in violation of R.C. 4505.19; to five
to -twenty-five years with five years actual time for the crime
of drug trafficking, in violation of R.C. 2925.e3; to four to
ten years, indefinite on each of two counts of receiving stolen
property, in violation of R.C. 2913.51, plus three years on
two firearm specifications; to seven to twenty-five years with
seven years actual time for the crime of drug trafficking, in
violation of R.C. 2925.03; to five to fifteen years, fndefinite,
for the crime of drug trafficking, in violation of R.C. 2925.03;
and to one-and-a-half to five years for the crime of having
(Page 3)
weapons while under disability, in violation of 2923.13;
plus three years on a specification prior to the remaining terms,
were to be served consecutively. in sum, appellant was sentenced
in case number CR-281730 to serve three years on his
specification, then eight years on the definite sentences,
followed by a minimum of 55J to a maximum of 170 years on the
indefinite sentences. Id. ('Cotton I") at ((5
[g6l Effective August 21, 1992, appellee calculated
appellant's total aggregate sentence as three years on the gun
specifications, consecutive with eight years definite time,
consecutive with a minimum of 641 to a maximum of 210 years
on the indefinite sentence. Id. ("Cott©n I') at t6
Ct7J By interoffice communication dated August 17, 1993,
from appellee's corrections records manager to appellant,
appellee informed appellant regarding his first parole hearing
date and calculation of sentence. appellee's agent informed
appellant that his sentence started on August 21, 1992, with
75 days jail credit. The interoffice communication further
informed appellant that he must serve all three years on his
specification sentence; five years, seven months, and six days
on his definite eight-years sentence; and ten years and six
months on the fifteen-year sentence for the 551-years indefinite
sentence. The communication expressly stated that °15 yrs. is
the most you can serve on for the 551 yrs". Based on appellee's
(Page 4)
calculation of appellant's sentence and the information regarding
the time he was required to serve, appellant filed his petition
for writ of habeas corpus. Id. ("Cotton i") at 17.
(18] In lieu of an answer, appellee filed a motion to
dismiss and amended motion to dismiss the petition for
failure to state a claim upon which relief can be granted. In
support, appellee appended an affidavit of Mary Oakley, Assistant
Chief of Bureau of Sentence Computation, as well as a memorandum
addressing the calculation of appellant's sentence. Ms. Oakley's
memorandum clarified appellant's minimum and maximum sentence
out of case number CR-281730. The memorandum clarified that
appellant's minimum indefinite-term sentence in case number
CR-281730 was relevant for determination of appellant's initial
parole hearing date only. The memorandum noted that appellant's
sentence in other cases had been aggregated and that his maximum
expiration of sentence is March 20, 2194. Id.
("Cotton I") at 18.
('19) On May 19, 2004, the trial court granted appellee's
motion to dismiss and dismissed appellant's petition for writ
of habeas corpus. It is clear from the recitation of the facts
in this trial court's journal entry that this court adopted
and relied on the information contained in Ms. Oakley's
memorandum. Appellant subsequently moved this trial court for
relief from judgment and to amend the judgment entry. The trial
court denied the motion without analysis. Appellant timely
appeals, setting forth on assignment of error for review. id.
(Page 5)
("Cotton I") 9th Dist. No. 04CA008536, 2005-Ohio-994 at [111-9]
(Appendix B)
III. STANDARD F9R SUMMARY JUDGMENT
Summary Judgment is a procedural device to terminate
litigation and to avoid a formal trial where there is nothing
to try. See, Norris vOhio Std, Oil Co., (1982), 70 Ohio St.
1, 433 N.E. 2d 615; Struzvnski v. Borden Chem. Div., Borden.
Ina., (Trumbull Cty. 1989), 57 Ohio App. 3d 118, N.E. 2d 279.
"Pursuant to Civ. R. 56(C), Summary Judgment way be granted
when the moving party demonstrate that: (1) there is no genuine
issue of fact; the moving party is entitled to judgment as a
matter of law; reasonable minds can come to but one conclusion
and that conclusion is adverse to the party against whom the
motion for summary judgment is made, that party being entitled
to have the evidence construed most strongly in [that party's]
favor. The moving party bears the initial burden of informing
the trial court of the basis for the motion and identifying
the portions of the record that established the absence of a
genuine issue of fact on a material element of the non-moving
party's claim. After the moving party satisfies this burden,
the non-moving party bears a reciprocal burden to respond by
affidavit, or as otherwise provided in Civ. R. 56, and must
set forth specific facts showing the existence of a genuine
issue for trial, if the non-moving party fails to so respond,
summary judgment, if appropriate, shall be entered against (the
(Page 6)
non-moving party]. Peterson v. Bukeye Steel Casings, (Franklin
Cty. 1999), 133 Ohio App. 3d 715, 720-21, 729 N.E. 2d 816-17.
In the summary judgment context, a"material fact is a fact
that "might affect the outcome of the suit under the governing
law of the case. Burdine v. Avery Dennison Corp., (Lake Cty.
2000), No. 89-L-269, 2000 Uhio App. LEXIS 2350, at 113W14. When
determining what constitutes a"genuine issue," the court decides
"whether the evidence presents a sufficient disagreement to
require submission to a jury, or whether is so one-sided that
one party must prevail as a matter of law.
IV. PROPOSITION OF LAW NO. 1
THE APPELLATE COURT COMMITTED PREJUDICIALERROR IN NOT GRANTING SUMMARY JUDGMENT TOTHE APPELLANT.
Appellate review of summary judgment is de novo and as such,
the Appellate Court stands in the shoes of the trial court and
conduct independent review of the record. Koos v. Central Ohio
Cellular, Inc., (1994), 94 Ohio App. 3d 579.
Appellant argued (Ground One) on appeal, to wit: (1) that
he is illegally imprisoned and restrained, because appellees
calculated and imposed a sentence upon appellant for his crimes
in the amount of 641 to 210 years for his indefinite sentences."'
State ex rel. Dailey v. Morgan, 761 N.E. 2d 140-141, in support
of his claimed violation of Separation of Powers Doctrine.
The Ninth District Court of Appeals Fixed this case by
changing Appe3lant's argument to (Grounds Two), to wit:
(Page 7)
[18] "that the Department of Rehabilitation illegally calculated
his sentence....[.], "that the Department of Rehabilitation
illegally 'correct[ed]" and "interpret[ted[" his sentence[.]
further stating: Mr. Cotton suggests that the Department of
Rehabilitation has modified his sentence and reduced the minimum
term to 15 years..." The Ninth District;Court of Appeals stated:
Mr. Cotton does not point to any dispute of material fact, and
we find none in this case.
Appellant argues that Ground One is clearly a dispute of
material fact. Appellant argued A Separationof Powers Violation.
The only Ground Appellant argued was Ground One, "alleging that
he is illegally imprisoned and restrained, because appellees
calculated and iapbsed a sentence upon appellant for his crimes
in the amount of 641 to 210 years for his indefinite sentences."
PROPOSITION NO. II
"THE NINTH DISTRICT COURT OF APPEALS COIlMITTEDPREJUDICIAL ERROR AND DENIED THE APPELLANTDUE PROCESS OF LAW WHEN IT- DID NOT GIVEP-RECLUS-I-nE EFFECT IN THE JUDGMENT OF THE COURTOF APPEALS."
PROPOSITION NO. III
"THE NINTH DISTRICT COURT OF APPEALS COMMITTEDPREJUDICIAL ERROR AND DENIED THE APPELLANTDUE PROCESS OF LAW WHEN IT WAS PRECLUDED BYTHE DOCTRINE OF THE LAW OF THE CASE[.]"
In this assignment, Appellant argues that the trial court
was precluded by the doctrine of the law of the case. Nolan v.
Nolan, 426 N.E. 2d 410. The issues in this case have been
previously determined de novo in Appellant's appeal by the Court
(Page 8
of Appeals in, Cotton v, Anderson, 9th. Dist. No. 04CA008536,
2005-Ohio-994
The Appellant filed a Motion for Summary Judgment. in support
of the Motion for Summary Judgment both Certified Decision and
Journal Entries of the Court of Appeals was attached. A copy
of the commitment or cause of detention/Certified copy of Sentence
was attached as (Exhibit DD) in accordance to R.C. 2725.04(D).
Yet, the Appellate Court points to: While incarcerated, Mr. Cotton
asked the records manager for clarification on his sentence.
In an interoffice communication to Mr. Cotton, the records manager
wrote, 'TNE (PAROLE)BOARD DATE IS FIGURED ON THE MINIMUM SENTENCE
OF: 3YRS. AIG (CONSECUTIVE TO) SYRS. DEF. [SERVED CONSECUTIVE
TO] (75[EARS1 IS THE MOST YOU CAN SERVE ON FOR THE 55i[YEARS].)~
Appellant clearly demonstrated that there was no genuine
issue to any material fact that Appellant was entitled to judgment
as a matter of law in accordance to R.C. 2925.04(D)
Appellant argues that the trial court erroneously failed
to give preclusive effect to this court's prior decisions, thereby
suggesting that this court previously determined the matter before
it on appeal when it solely addressed both, procedural and
factual issues.
One aspect of the doctrine of res judicata is collateral
estoppel or as otherwise referred to, issue preclusion. A prior
judgment estopps a party, or a person in privity with him, from
subsequently relitigating the identical issue raised in the prior
(Page 9)
action. Goodson v. McDonouah Power Eauip., (1983), 2 Ohio St
3d 193, 2 OBR 732, 443 N.E. 2d 978.
Appel3ant argued Ground One, in his Summary Judgment and on
appeal. "that he is illegally imprisoned and restrained, because
appellaa calculated and imposed a sentence upon appellant for
his crimes in the amount of 641 to 210 years for his indefinite
sentence[.)°
The Appellate Court found in ("Cotton 1°) at 16 that
Appellee's calculated appellant's total aggregate sentence as
three years on the gun specification, consective with eight years
definite time, consecutive with a minimum of 641 to a maximum
of 210 years on the indefinite sentence. Id. ("Cotton I") at
16 and, again On August 17, 1993, By interoffice communication.
Id. 17 The law-of-the-case doctrine is similar to res judicata,
providing that "the decision of a reviewing court in a case
remains the law of that case on the legal question involved for
all subsequent proceedings in the case at both the trial and
reviewing levels." Nolan v. Nolan, (1984), 11 Ohio St. 3d 1,3.
V. IN CONCLUSION
A review of the record in this case clearly shows that the
Appellate Court did not rule on Ground One, The Appellate Court
Fixed this case by changing the facts and changing Appellant's
argument from Ground One too Ground Two. The doctrine of res
judicata and the doctrine of the law-of-the-case precluded the
issues. Consequently, the judgment of the Appellant Court must
be revered and final judgment entered in favor of Appellant.
(Page 10)
This Ohio Supreme Court has to review Appellant's Ground
One. Declaring that Appellee's violated the Separation of Powers
Doctrine when it calculated appellant's sentence, thus appellant
is a wrongfully restrained person.
Respectfully submitted,
Milton Cotton, A-234-3171800 S. Avon-Belden RoadGrafton, Ohio 44044
CERTIFICATE OF SERVICE
The foregoing Brief of Appellant has been sent to counsel
Thelma T. Price, 150 East Gay Street, 16th. Fl.,, Columbus, Ohio
43215-6001; Via U.S. Mail this AL&, of ®a;AIZCr , 2011.
Respectfully submitted,
Milton Cotton, A-234-3171800 S. Avon-Belden RoadGrafton, Ohio 44044
(Page 11)
A P P E N D I X
A TRUE AND CERTIFIED COPY OF THE DECISION AND JOURNALENTRY IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICTICOTTON V. ANDERSON, APP. NO. tOCA009830; DATED AUGUST8 v 2011 (APPENDIX A ) ........................... . . . . . . . . . .
PAGE
• 54-60
A TRUE AND CERTIFIED COPY OF TNE MANDATE/DECISION ANDJOURNAL ENTRY OF THE NINTH DISTRICT APPELLATE COURT'SCASE IN COTTON v. ANDERSUNS APP. NO. 04CA008536#
2005-ohio-994; DATED MARC'H 9t 2005. (APPENDIX B) ^^^^^^^o... 61-69
A TRUE COPY OF THE COURT ORDER; RESPEQNDENT HAVING FILED
HIS LHOTION FOR SUMMARY JUDGMENT ON 01/31/08; PETITIONER
GRANTED UNTIL 03/14/08 TO FILE A RESPONSE; RESPONDENT
GRANTED UNTIL 03/31/08 TO FILE A REPLY. (APPENDIX C) „,.,,, 70
A TRUE AND CERTIFIED COPY OF SENTENCE; (R.C. 2725.04(D))IN STATE y. COTTON# CUYAHOGA COUNTY COURT OF COMMONPLEAS CASE NO. CR-281730; DATED AUGUST 140 1992.
(APPENDIX D) ............................................... 71
(Page 12)
STATE OF OHIO ))ss:
COUNTY OF LORAIN
MILTON COTTON
)
Appellant
v.
CARL ANDERSON
Appellee
IN THE COURT OF APPEALSNINTH JUDICIAI: DISTRICT
C.A. No. 10CA009830
APPEAL FROM JUDGMENTENTERED IN THECOURT OF COMMON PLEASCOUNTY OF LORAIN, OHIOCASE No. 04CV13808.1
DECISION AND JOURNAL ENTRY
Dated: August 8, 2011
BELFANCE, PresidingJudge. n
{1(1} Milton Cotton appeals from the trial court's overraling of ^ motion for summary
judgment regarding his petition for a writ of habeas corpus. For the reasW set fogh below; we
affirm.C)^
I.
{¶2} In 1991 and 1992, TS?1r. Cotton was convicted of various crimes for wbich he
received definite and indefinite sentences. Because this is the third time this matter is before us,
Mr. Cotton's convictions and sentences are detailed in W. Cotton's prior appeal. See Cotton v.
Anderson, 9th Dist. No. 04CA008536, 2005-Ohio-994, at ¶14-5 ("Cotton P'). At issue in this
case is Mr. Cotton's indefinite sentence from August 14, 1992, which ranges from 55 years and 6
months to 170 years.
{1[3} While incarcerated, Mr. Cotton asked the records manager for clarification on his
sentence. In an interoffice communication to Mr. Cotton, the records manager wrote, "THE
^,APEENAIX A) 54
2
[PAROLE] BOARD DATE IS FIGURED ON TIIE MININIUM SENTENCE OF: 3YRS. AIG
[CONSECUTIVE TO] 8YRS. DEF. [SERVED CONSECUTIVELY TO] 15YRS. (15[ YEARS]
IS THE MOST YOU CAN SERVE ON FOR THE 55 1/2 [YEARS].)"
{14} In 2004, Mr. Cotton filed a petition for a writ of habeas corpus, alleging that
appellee Carl Anderson, Warden of the Grafton Correctional Institution, was "knowingly
implementing an u.nlawfut liberty restraint without jurisdiction to do so[.]" Warden Anderson
filed a motion to dismiss Mr. Cotton's petition; attaching an affidavit of Mary Oakley, the
Assistant Chief of the Bureau of Sentence Computation for the Department of Rehabilitation and
Corrections, and a memorandum addressing the calculation of Mr. Cotton's sentence. The trial
court granted Warden Anderson's motion, and Mr. Cotton appealed.
{15} This Court reversed, concluding that the trial court had considered evidence
outside of the petition when granting Warden Anderson's motion. By considering the other
evidence, the trial court had converted Warden Anderson's motion to dismiss into a motion for
summary judgment without informing the parties or allowing Mr. Cotton an opportunity to
respond. See Id. at ¶¶11-12. The matter was remanded for further proceedings. Id. at ¶13.
{16} On remand, Warden Anderson again moved for dismissal, arguing that Mr.
Cotton had failed to comply with R.C. 2969.25. Cotton v. Anderson, 9th Dist_ No. 06CA008984,
2007-Ohio-6548, at ¶3 ("Cotton II"). The trial court agreed and, again, dismissed Mr. Cotton's
petition. W. Cotton appealed, and this Court reversed, noting that W. Cotton had "`appended to
his petition for writ of habeas corpus copies of the relevant committnents[,]"' and, therefore, had
compiied with R.C. 2969.25. Id. at ¶6, quoting Cotton I at ¶3. The matter was again remanded
to the trial court.
55
{¶9} Warden Anderson then moved for summary judgment,. attaching Assistant Chief
Oakley's affidavit. Ihi response to Warden Anderson's mbtion, Mr. Cotton filed a cross-motion
for sununary judgment. Warden Anderson subsequently filed a response. The trial court granted
Warden Anderson's motion for summary judgment and denied Mr. Cotton's motion. Mr. Cotton
appeals the judgment of the trial court.
II.
ASSIGNMENT OF ERROR I
"THE COURT COMMITTED PREJUDICIAL ERROR IN NOT GRANTINGSUMMARY JUDGMENT TO THE APPELLANT[.]"
{18} Mr. Cotton, in his petition for a writ of habeas corpus, raised three grounds for his
writ: that the Department of Rehabilitation illegally calculated his sentence, that the Department
of Rehabilitation illegally "`correct[ed]"' and "interpret[ted]" his sentence, and that the trial
court never made an express finding of guilt. However, Mr. Cotton has not advanced any
argument in his merit brief concerning his third ground for relief.
{19} We review a trial court's awarding summary judgment de novo. Grafton v. Ohio
Edison Co. (1996), 77 Ohio St.3d 102, 105. Pursuant to Civ.R. 56(C), summary judgment is
appropriate when:
"(1) No genuine issue as to any material fact remains to be litigated; (2) themoving party is entitled to judgment as.a matter of law; and (3) it appears fromthe evidence that reasonable minds can come to but one conclusion, and viewingsuch evidence most strongly in favor of the party against whom the motion forsummary judgment is made, that conclusion is adverse to that party." Temple v.
Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.
{110} To succeed on a summary judgment motion, the movant "bears the initial burden
of demonstrating that there are no genuine issues of material fact conoerning an essential element
of the opponent's case." (Emphasis sic). Dresher v. Burt (1996), 75 Ohio St.3d 280, 292. If the
56
4
movant satisfies this burden, the non-moving party "`must set forth specific facts showing that
there is a genuine issue for trial."' Id. at 293, quoting Civ.R. 56(E). However, "as the burden is
upon the moving party to establish the nonexistence of any material factual issues, the lack of a
response by the opposing party cannot, of itself, mandate the granting of summary judgment."
Morris v. Ohio Cas. Ins. Co. (1988), 35 Ohio St.3d 45, 47.
{111} Mr. Cotton does not point to any dispute of material fact, and we find none in this
case. He concedes that, on August 14, 1992, the trial court sentenced him to definite prison
terms of 3 and 8 years and to an indefirute prison term ranging from 55 years and 6 months to
170 years. Mr. Cotton suggests that the Department of Rehabilitation has modified his sentence
and reduced the minimum term to 15 years. However, the Department of Rehabilitation had no
authority to modify his sentence. Furthermore, its reference to 15 years as "the most you can
serve" did not constitute a modification of his sentence. Rather, it simply recognized the effect
of former R.C. 2929.41(E)(2) upon Mr. Cotton's indefinite sentence. See State ex rel. Hamann
v. Ohio Dept. ofRehab. & Corr., 96 Ohio St.3d 72, 2002-Ohio-3528, ¶7 ("[T]he statutory cap in
former R.C. 2929.41(E)(2) is self-executing[.]"). Furthermore, there is no dispute of fact that
Mr. Cotton is continuing to serve his indefinite sentence.
{112} "Habeas corpus is generally appropriate in the criminal context only if the
prisoner is entitled to immediate release from prison." Ridenour v. Randle (2002), 96 Ohio St.3d
90, 2002-Ohio-3606, ¶7. "[A] convicted person has no constitutional right to be conditionally
released prior to the expiration of a valid sentence." State v. Parsons, 9th Dist. No. 22200, 2005-
Ohio-268, at ¶13, quoting Velasquez v. Ghee (1996), 108 Ohio App.3d 409, 411. See, also, State
ex reL Henderson v. Ohio Dept. of Rehab. & Corr. (1998), 81 Ohio St.3d 267, 268 (A defendant
"has no constitutional or statutory right to parole, [and] he has no similar right to earlier
57
5
consideration of parole.") (internal citation omitted). Since Mr. Cotton served his definite
sentences first, he is currently serving his indefinite sentence and is well short of the 170-year
maximum. Accordingly, his valid sentence has not expired, and, therefore, he is not entitled to
imrnediate release from prison. Thus, based on the undisputed evidence before us, Mr. Cotton
was not entitled to a writ of habeas corpus as a matter of law.
{113} The trial. court correctly overruled Nfr. Cotton's motion for summary judgment.
Mr. Cotton's first assignment of error is overruled.
ASSIGNMENT OF ERROR II
"THE COURT COMMITTED PREJUDICAL ERROR AND DENIED THEAPPELLANT DUE PROCESS OF LAW WHEN IT DID NOT GNEPRECLUSIVE EFFECT IN THE JUDGMENT OF THE COURT OFAPPEALS."
ASSIGNMENT OF ERROR III
"THE COURT COMMIMD PREJUDICIAL ERROR AND DENIED THEAPPELLANT DUE PROCESS OF LAW WHEN IT WAS PRECI.iIDED BYTHE DOCTRINE OF THE LAW.OF THE CASE[.]"
{¶14} W. Cotton's second and third assignments of error are related, and we consider
them together. Mr. Cotton argues that the trial court's granting of summary judgment to Warden
Anderson was precluded by res judicata or, in the alternative, by the law-of-the-case doctrine.
We disagree.
{¶15} The doctrine of res judicata provides'that "[a] valid, final judgment rendered upon
the merits bars all subsequent actions based upon any claim arising out, of the transaction or
occurrence that was the subject matter of the previous action." Grava v. Parkman Twp. (1995),
73 Ohio St.3d 379, at syllabus. The law-of-the-case doctrine is similar to res judicata, providing
that "the decision of a reviewing court in a case remains the law of that case on the legal
58
6
questions involved for all subsequent proceedings in the case at both the trial and reviewing
levels." NoZan v. Nolan (1984), 11 Ohio St.3d 1, 3.
{116} Mr. Cotton argues that the trial court erroneously failed to give preclusive effect
to this court's prior decisions, thereby suggesting that this court previously detemiined the matter
before us in this appeal. However, Mr. Cotton's previous appeals solely addressed procedural
issues. In his first appeal, this Court reversed the trial court's dismissal of his petition because it
had considered evidence outside the petition, thus converting the motion to dismiss into a motion
for summary judgment without providing Mr. Cotton an opportunity to respond. In his second
appeal, this Court reversed the trial court's dismissal, which had been based upon a failure to
comply with R.C. 2969.25_ In neither appeal, did this Court consider the merits of Mr. Cotton's
habeas petition and Mr. Cotton has not otherwise demonstrated that the doctrines of res judicata
or law-of-the-case apply to the matter before us. Mr. Cotton's second and third assignments of
error are overrnled.
III.
Mr. Cotton's assignments of error are overruled. The judgment of the Lorain County
Court of Common Pleas is affrrmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this joumal entry shall constitute the mandate, pursuant to App.R 27.
59
7
lmmediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
EVE VFOR
WHITMORE, J.MOORE, J.CONCUR
APPEARANCES:
MILTON COTTON, pro se, Appellant.
E s`LFANCECOURT_-KH
THELMA THOMAS PRICE, Assistant Attomey General, for Appellee.
OF THE QAIG NA Otd'FI EOIN THIS FFF' C6PY
NABNKO`NSKLLOFtiIW^U^ITYHKUF TH£ GO1Rt^DfOoNfMON PI.EAS
.r^^ .^`. 3►^^̂- ^Y
60
COURT OF APPEALS
I HEREBY GE9TIFYTH1S TO E£E A TRUE COPYCF THE GRIGINAF:,QN: FILEtN
JT.••
i" ^^^AIgOM JUDG1vIENTENT . RED IN THECOURT OF COMMON PLEASCOUNTY OF LORAIN, OHIOCASENo. 04CV138081
DECISION AND JOURNAL ENTRY
,
STATE oF OHIOi
COUNTY OF LORAIN
MILTON COTTONi
Appellant jc
))ss:
L IN THE COUR'1^' OF APPEALSTNINTH JUDICiAL DISTRICT
2085 SAP I I A II: Ol
I
C. A. No. 04CA008536
APi'ELLA
CARL ANDERSON, WARDEN .
Appellee
v.
Dated: March 9, 2005
This cause was heard upon the record in the t•ial court. Each error assigned
has been reviewed and the following disposition is made:
CARR, Presiding Judge.
{11} Appellant, Milton Cotton, appeals from the jourrtal entry of the
Lorain County Court of Common Pleas, which disnussed his petition for writ of
habeas corpus. This Court reverses and.retnands.
L
{12} On March 30, 2004, appellant.filed a petition for writ of habeas
corpus, alleging that appellee, Carl Anderson, warden of Grafton Correctional
Institution, was "knowingly implementing an unlawful liberty rPstraint without
jurisdiction to do so[.]" Appellant alleged three grounds in support of his writ, to
NA@ANOWSYC LbPAiN GCUNTY..RK bf THECOHftTAE CQNIM4N PLEAS
tIF^-
,,
t^f71^-,^,l̂.,
' ./^ // I ,":,CEPUN
Courtof Appeals of Ohio. Ninth Judicial District
376
(:AisFENDIX B)
2
wit: (1) that he is illegally imprisoned and restrained, because appellee calculated
and imposed a sentence upon appellant for his crimes in the amount of 64 1/2 to
210 years for his indefinite sentences; (2) that he is illegally imprisoned and
restrained, because appellee "corrected" sentencing errors by imposing appellee's
interpretation of a proper term of sentence; and (3) that he is illegaYly imprisoned
and restrained, because the trial court had no authority to impose prison sentences
in case numbers CR-259650 and CR-281730, since the trial court did not find
appellant guilty of any crimes in regard to those cases.
{13} Appellant appended to his petition for writ of habeas corpus copies
of the relevant commitments. In addition, appellant aFpended to his writ affidavits
as to prior actions and his indigetacy,
{14} Pursuant to a journal entry filed June 14, 1991, appellant was
sentenced after conviction in case number CR-257742 to one and one-half years
for the crime of grand theft motor vehicle, in violation of R.C. 2913.02; to one
year for the crime of failure to comply with order or signal of police officer, in
violation of R.C. 2921.331; and to one year for the crime of possession of crinunal
tools, in violation of R.C. 2923.24, each term to be served consecutiveiy. Pursuant
to journal entry filed June 17, 1991, appellant was sentenced after conviction to
two to ten years, indefinite, for the crime of receiving stolen property, which term
was to be served consecutively with the sentence ordered in case number CR-
257742.
Court of Appeals of Ohio, Ninth Judicial District
377
3
(qS} Pursuant to a certified copy. of sentence, on August 14, 1992,
appell4nt was sentenced after conviction in case number CR-281731 to six months
for th^ crime of attempted theft, in violation of R.C. 2923.02 and 2913.02.
Finally, pursuant to a certified copy of sentence, on August 14, 1992, appellant
was sentenced after conviction in case number CR-281730 to four to ten years,
indefinite, on each of five counts of receiving stolen property, in violation of R.C.
2913.51; to one-and-a-half to five years, indefinite, on each of two counts of
concealing identity of motor vehicle, in violation of R.C. 4549.62; to one-and-a-
half to five years, indefinite, on each of four counts of possession of criniinal
tools, in violation of R.C. 2923.24; to four years, definite, on each of two counts of
title law violation, in violation of R.C. 4505.19; to five to twenty-five years with
five years actual time for the crime of drug trafficking, in violation of R.C.
2925.03; to four to ten years, indefinite, on each of two counts of receiving stolen
property, in violation of R.C. 2913.51, plus three years on two firearm
specifications; to seven to twenty-five years with seven years actual time for the
crime of drug trafficking, in violation of R.C. 2925.03; to five to fifteen years,
indefinite, for the crime of drug trafficking; in violation of R.C. 2925.03; and to
one-and-a-half to five years for the crime of having weapons while under
disability, in violation of R.C. 2923.13, plus three years on a specification.
Appellant was to serve time on the three specifications prior to the remaining
terms, but concurrent with one another. Appellant's remaining terms were to be
Court of Appeals of Ohio. Ninth Judicial District613
o 7 $
4
Iserved consecutively. In sum, appellant was sentenced in case number CR-
281730 to servC three years on his specifications, then eight years on the definite
sentences, followed by a minimum of 55 1/2 to a maximum of ;170 years on the
indefinite sentences.
{16} Effective August 21, 1992, appellee calculated appellant's total
aggregate sentence as three yeais on the gun specifications, consecutive with eight
years definite time, consecutive with a minimum of 64 'h.. to a maximum of 210
years on the indefinite sentences.
{17} By intecoffice communication dated August 17, 1993, from
appellee's corrections records manager to appellant, appel:ee informed appellant
regarding his first parole hearing date and calculation of sentence. Appeliee's
agent inforined appellant that his sentence started on August 21, 1992, with 75
days jail credit. The interoffice communication further informed appellant that he
must serve all three years on his specification sentence; five years, seven months,
and six days on his definite eight-year sentence; and ten years and six months on
the fifteen-year sentence for the 55 '/z-year indefinite sentence. The
communication expressly stated that "15 yrs. is the most you can serve on for the
55 'h yrs." Based on appellee's calculation of appellant's sentence and
infoimation regarding the time he was required to serve, appellant filed his
petition for writ of habeas corpus.
Court of Appeals of Ohio, Ninth Judicial Distcict
3 7:t
i{18} In lieu of an answer, appellee filed a motion to dismiss and amended
motibn to dismiss the petition for failure to state a claim upon which relief can be
granted. In support, appellee appended an affidavit of Mary Oakley, Assistant
Chief of Bureau of Sentence Computation, as well as a memorandum addressing
the calculation of appellant's sentence. Ms. Oakley's memoranduni clarified
appellant's minimum and maximum sentence out of case number CR-281730.
The memorandum delineated the expiration dates of appellant's specification and
definite sentences. Further, Ms. Oakley's. memorandum clarified that appellant's
minimum indefinite-term sentence in case number CR-281730 was relevant for
determination of appellant's initial parole hearirg date only. The memorandum
noted that appellant's sentences in other cases had been aggregated and that his
maximum expiration of sentence is March 20, 2194.
(19) . On May 19, 2004, the trial court granted appellee's motion to
dismiss and dismissed appellant's petition for writ of habeas corpus. It is clear
from the recitation of facts in the trial court's joumal entry that the court adopted
and relied on the information contained in Ms. Oakley's memorandum. Appellant
subsequently moved the trial court for relief from judgment and to amend the .
judgment entry. The trial court denied the motions without analysis. Appellant
timely appeals, setting forth one assignment of error for review.
Coun of Appeals of Ohio, Ninth Judicial District
:i3i1
6
U.
ASSIGNMENT OF:ERROR
"THE TRIAL COURT DENIED APPELLANT THE RIGHT TOTRIAL AI?TD THE RIGHT TO DUE PROCESS OF LAW ASGUARANTEED BY THE SIXTkI AND FOURTEENTHAMENDMENTS TO T.HE UNITED STATES CONSTITUTIONAND ARTICLE I OF THE OHIO CONSTITUTION, WHEN ITABUSED ITS DISCRETION VJHEN IT DENIED HIS HABEASCORPUS COMPLAINT WITHOUT EVEN GIVING APPELLANTTHE OPPORTUNITY TO PRESENT EVIDENCE IN SUPPORTOF THE HABEAS CORPUS."
{110} Appeliant argues that the tri'al court erred by granting appellee's
motion to dismiss; when the trial court addressed the motion to dismiss as a
motion for sununary judgment, considering evidence aud materials outside the
complaint, without'notice to appellant. This Court agrees.
{i1i} This Court reviews de novo a trial court's decision to grant a motion
to disntiss. Niepsuj v. Summa Health System, 9th Dist. Nos. 21557, 21559, 2004-
Ohie-115, at 15. A trial court may grant a motion to dismiss for failure to state a
claim upon which relief can be granted pursuant to Civ.R. 12(B)(6) only if it
appears beyond a doubt that the petitioner can prove no set of facts which •xo.uld
entitle him to relief. Garvey v. Clevidence, 9th Dist. No. 22143, 2004-Ohio-6536,
at q11. In considering a Civ.R. 12(B)(6) motion to dismiss, the trial court must
review only the complaint, accepting all factual allegations as true and making
every reasonable inference in favor of the nonmoving party. Id. The trial court
may not, however, rely upon any materials or evidence outside the complaint in
Court of Appeals of Ohio, Ninth Judicial District
a A1
considering a motion to dismiss. State ex rel. Fuqua v. Alexander (1997), 79 Ohio
SOd 206, 207. Where the trial court chooses to consider evidence or materials
ouitside the complaint, the court must convert the motion to disiniss into a motion
for summary judgment and give the parties notice and a reasonable opportunity to
present all materials made pertinent to such motion by Civ.R. 56. Civ:R. 12(B);
State ex rel. The V. Cos. v. Marshall ( 1998), 81 Ohio St.3d 467, 470.
{112} In this case, the trial court did not give the parties notice of its intent
to convert appellee's motion to diisnuss into a motion for summary judgment. In
fact, in its journal entry, the trial court disposed of the matter by granting
appellee's rnotion to dismiss, not a converb>d motion for summary judgment.
However, the trial court clearly relied on evidence and materials outside
appellant's petition. The trial court reiterated as fact information adduced only
from Mary Oakley's memorandum, appended to appellee's motion to dismiss.
Further, appellee concedes in his brief that the "Lorain County Court of Common
Pleas found the facts to be as outlined by the Respondent in the Motion to
Dismiss:" Under the circumstances, the trial court erred by considering evidence
and materials outside appellant's petition in disposing appellee's motion to
dismiss. The trial court did not notify the parties that it was converting the motion
to dismiss into a motion for suntmary judgment and could not, therefore, consider
any evidence outside the petition. This Court finds that the trial court, therefore,
Court of Appeals of ohio: Ninth Judicial Distcict(^ 7
s8?
improperly dismissed appellant's petition for writ of habeas corpus. Appellant's.
sole assignment of error is sustained.
III.
{113} Appellant's assignment of error is sustained. Accordingly, the
judgment of the Lorain County Court of Common Pleas is reversed and the cause
remanded to. the trial court for proceedings consistent with this opinion.
Judgment reversedand cause remanded.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court
of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into
execution. A certified copy of this journal entry shall constitute the mandate,
pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the
journal entry of judgment, and it shall be file stamped by the Clerk of the Court of
Appeals at which time . the period for review shall begin to run. App.R. 22(E).
The Clerk of the Court of Appeals is instructed to mail a notice of entry of this
judgment to the parties and to make a notation of the mailing in the docket,
pursuant to App.R. 30.
Coun of Appeals of Ohio. Ninth Judicial pIhstrict . . fQ ^
)O-^
Costs taxed to appellee.
Exceptions.
9
DONNAJ.CARRFOR THE COURT
BATCHELDER, J.BAIRt3, JCONCUR
(Baird, J., retired, of the Ninth District Court of Appeals, sitting by assignmentpursuattt to, §6(C), Article IV, Constitution.)
APPEARANCES:
MILTON COTTON, INMATE # A-234-31^,, 2500 S. Avon-Belden Road,Grafton; Ohio, Grafton, Ohio, 440Ek1, appellant.
THELMA THOMAS PRICE, Assistant Attorney General, Corrections Litigation,150 East Gay Street, 16t' Floor, Columbus, Ohio 43215;. for appellee.
Court of Appeala of Ohio. Ninth Judicial District
181
LORAIN COUNTY COURT OF COMMON PLEASLORAIN COUNTY, OHIO
RON NABAKOWSKI, ClerkJOURNAL ENTRY
Christopher R. Rothgery, Judge
Date 2/4/08 Case No. 04CV138081
MILTONCOTTON MILTON C PRO SEPlaintiff . ^ . . PiaintifPs Attorney
vs
CARL ANDERSON THELMA T PRICEDefendant Defendant's Attorney
Respondent having filed his Motion for Summary Judgment on 01/31108;Petitioner granted until 03/14/08 to file a Response; Respondent granted until 03/31/08to file a Reply.
VOL PAGE
cc: AAG Thelma PriceMilton Cotton (Pro Se) A234-317
7o.
11,111,111, 1111, 111, (A'PPENDZX C)
CERTIFIED COPY OF SENTENCERevised Code Secs. 2949.12 - 2947.09 - 2947.23
At a term of the Court of Common Pleas, begun and held at the Court House in CLEVELAND
within and fosthe County of CUYAHOGA and State of Ohio, on the _ I day of
^ v
Present, the Hon. Sj J^' Judge.
In the Record and Proceedigjngf Eyd CoW^Ct^apAffieWhff)^Regg ot$ef things, is the following
Judgment and Sentence,to-wit: 4549.62 CONC IDENT OF MV W/SF'ECS 02
2923.24 POSS CRIM. TOOLS W/SPECS 04
Indictment for 4505.19 TITLE LAW VIOLATION 022925.03A1 DRG TRFF W/SCHOOL YRD SPC 032913.51 REC. STOL. PROP. W/SFECS 012923.13 HAYE WEP UNDR DIS W/SPECS 01
CXDK 281730 0018015 COTTON MILTON DOB-11/11/54 MALE BLACIC
PROSECUTOR, ATTORNEY AND DEFENDANT IN COURT. NOW COMES THE JURY W/VERDICTOF GUILTY TO RSP MV 2913.51, AS CHGD. CTS 1-2-8-15-16; CONCEALING MV ID,RC 4549.62, CTS 3,9; PCT 2923.24, CTS 4-7-10-19; TITLE LAW VIO RC 4505.19 AMEN-DED CTS 5.11; DRUG TRAFFICK 2925.03 CTS 6-1.7-18 W/SCHOOLYARD SPEC; RSP MV RC 2913.51, W/FIREARM SPEC CT 12; RSP FIREARM W/FIREARM SPEC CT 13; HWUD RC 2923.13CT 20. DEFT INFORMED OF JURY'S VERDICT AND THE COURT INQUIRED IF HE HAD ANYTHING TO SAY WHY JUDGM SHOULD NOT BE PRONOUNCED:DEFT. SENT. TO LCI 4-10 YRS CTS 1,2,8,15,16; 1-1/2-5 YRS CTS 3,4,7,9,10,19; 4 YRS DEFINITE ON EACH OF CTS 5,11('DEFINITE) 5-25 YEARS W/5 YRS ACTUAL CT 6 W/MAND $10,000. FINE; 4-10YRS CT 12+ 3 YRS ON FIREARM SPEC SERVED PRIOR TO AND CONSECUTiVELY TO SENT; 4-10 YRS CT13 PLUS 3.YRS ON FIREARM SPEC SERVED PRIOR TO AND CONSECUTIVE TO SENTENCE; 7-25 YRS CT 17 W/7 YRS ACTUAL AND $15,000. MANDATORY FINE; 5-15 YRS CT 18 W/$10,000.00 MAND. FINE; 1-1/2-5YRS CT 20+3 YRS MAND., SERVED PRIOR TO AND CONSECUTIVETO SENTENCE. ALL COUNTS TO BE SERVED CONSECUTIVELY, BUT THE 3 YR FIREARM SPECSIN CTS 12,13 AND 20 ARE TO RUN CONCIJRRENT W/EACH OTHER. PAY COSTS. DEFENDANT
ADVISED OF HIS APPEAL RIGHTS AND IS FOUND TO BE INDIGENT. COURT APPOINTS ATTORNEY PAUL MANCINO AS COUNSEL FOR APPEAL PURPOSES AND ORDERS TRANSCRIPT AT STATE'S
EXPENSE...BC 0B/18/92 15:33
JUDGE: 305-ANTHONY 0 CALABRESE JR.
I CERTIFY the above to be a true copy of said Judgment and Sentence.
Given under my hand and the seal of said Court, this
day of
q
NO 2 g 19§2`7d
n-Ap (#PPENDIX D)