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Welles v. Greene County Common Pleas Court

October 3, 2006

BETTY A. WELLES, PETITIONER,
v.
GREENE COUNTY COMMON PLEAS COURT, RESPONDENT.



The opinion of the court was delivered by: Chief Magistrate Judge Michael R. Merz

DECISION AND ORDER

Petitioner Betty A. Welles brought this action pro se seeking a writ of mandamus to compel the Respondent Greene County Common Pleas Court to instruct the Ohio Adult Parole Authority to give her an additional sixty-nine days credit against the prison sentence she is presently serving (Motion, Doc. No. 1). After considering the nature of the relief sought, the Court ordered Petitioner to file a petition for a writ of habeas corpus (which she did at Doc. No. 6) and ordered an answer (Doc. No. 7). The State has now filed an Answer (Doc. No. 9) and Petitioner has filed a Reply as ordered (Answer and Memorandum, Doc. No. 12).

The parties have unanimously consented to plenary magistrate judge jurisdiction under 28 U.S.C. §636(c) and the case has been referred on that basis (Doc. No. 10). Pat Andrews is the Warden at the Marysville Ohio Reformatory for Women where Petitioner was incarcerated at the time the Petition was filed.*fn1 Because the custodian is the proper respondent in a habeas corpus case, Warden Andrews is hereby substituted for the Greene County Common Pleas Court as Respondent.

Procedural History

On December 5, 2003, Petitioner was convicted of one count of theft in the Miami County Common Pleas Court and sentenced to seventeen months imprisonment (Answer, Doc. No. 9, Ex. 1). Two days earlier, on December 3, 2003, while she was incarcerated at Marysville, she was indicted by the Greene County Grand Jury on one count of theft and one count of passing bad checks. Id., Ex. 2. The case was assigned Case No. 2003 CR 870 on the docket of the Greene County Common Pleas Court and Petitioner entered a guilty plea to both counts on January 15, 2004. Id. Ex. 4. On March 10, 2004, she was sentenced to seventeen months confinement on each count, to be served concurrently with each other and with the Miami County sentence. Id., Ex. 5. The judgment entry expressly finds that she is entitled to no jail credit time. ("The Defendant is entitled to jail time credit of 0 days as of this date along with future custody days while Defendant awaits transportation to the state institution.") In the judgment entry, which Petitioner signed, she was advised in writing of her right to appeal.

On June 1, 2004, Petitioner was sentenced in the Clark County Common Pleas Court to eighteen months confinement on a conviction of one count of theft with twelve days jail credit, the sentence to be served consecutively to the other sentences. Id., Exs. 6 and 7. In September, 2005, Petitioner was sentenced to eleven months imprisonment on another Greene County theft conviction (Case No. 2005 CR 453), the time to be served concurrently with the time then being served.

On April 27, 2004, Petitioner filed a Motion to Jail-Time Credit on 2003 CR 870, claiming entitlement to sixty-seven days. Id., Ex. 10, Judge Wolaver overruled that Motion, finding that Petitioner "was serving a sentence at the Department of Rehabilitation and Corrections (Ohio Reformatory for Women) for Miami County Common Pleas Court Case No. 2003-CR-327 at the time she was brought to Greene County Common Pleas Court for the above captioned action." Id. at Ex. 11. On March 6, 2006, Petitioner filed another Motion for Jail Time Credit with Judge Wolaver, seeking 60 days additional credit. Id., Ex. 13. The next day Judge Wolaver denied the Motion on the same basis as he had denied the prior Motion. Id., Ex. 14. On March 17, 2006, Judge Wolaver filed another Entry, presumably on a request for reconsideration, reaching the same conclusion for the same reasons. Id., Ex. 15. On March 27, 2006, Judge Wolaver again considered the matter and found that Defendant should have been given two days' jail time credit. However, the Motion was overruled because "the defendant has essentially served this sentence and the Bureau of Sentencing Computation does not fine Greene County Case No. 03-CR-870 to be the controlling sentence keeping her in prison." Id., Ex. 17. An additional motion by Petitioner and order by Judge Wolaver, both to the same effect, are also of record. Id., Exs. 18, 19.

Analysis

Petitioner pleads one ground for relief as follows:

Ground One: Denial of Defendant's motion for jail time credit is forcing Defendant to serve more time of confinement than is provided by law and is a deprivation of liberty without due process of law.

Supporting facts: Defendant was confined in Greene County Jail for 69 days awaiting conviction and sentencing. Defendant was confined from December 15, 2003 to February 12, 2004 and March 9, 2004, to March 18, 2004. Greene County Common Pleas Court failed to credit Defendant with jail time credit. Subsequently Defendant served 69 more days on Greene County case 2003-CR-870 then [sic] she should have which means she did not start consecutive case in Clarke [sic] County for 69 days later than she should, pushing out date back 69 days. Defendant is serving 69 more days than she should. (Petition, Doc. No. 6, at 6.)

Respondent asserts Petitioner's claim is barred by the statute of limitations.

28 U.S.C. §2244 (d) provides:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The ...


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