Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Trial Court Case No. 92-CR-196
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Attorney for
LERMAN, Atty. Attorney for Defendant-Appellant.
1} AD. Armstrong appeals from a judgment of the
Montgomery County Court of Common Pleas, which overruled his
post-conviction "motion for court to consider evidence
that gun spec has already been served" and other
post-conviction motions. For the following reasons, the trial
court's judgment will be affirmed.
2} In 1992, Armstrong was convicted after a bench
trial of aggravated burglary and received a sentence of 6 to
25 years in prison. We affirmed his conviction on direct
appeal. State v. Armstrong, 2d Dist. Montgomery No.
13498, 1993 WL 294834 (Aug. 6, 1993).
3} The record does not reflect when Armstrong was
released on parole, but his filings with the trial court
reflect that, in 2005, he was convicted of felonious assault
with a firearm specification. See State v.
Armstrong, Montgomery C.P. No. 2004 CR 2162. Armstrong
was apparently sentenced to six years in prison for felonious
assault with an additional three-year term for the firearm
4} While in prison, Armstrong has filed numerous pro
se motions with the trial court in this case (Case No. 1992
CR 196) related to the length of his incarceration. Of
relevance to this appeal, in 2016, Armstrong filed five
motions, seeking (1) clarification of his sentence, (2)
appointment of counsel, (3) that the court consider evidence
that his gun specification had already been served, (4)
removal to the Montgomery County Jail, and (5) to add
evidence to his case.
5} On December 28, 2016, the trial court overruled
the motion to consider that his gun specification had already
been served and the other motions. The court stated, in its
Defendant in this case has filed a Motion for Court to
Consider Evidence that Gun Spec has Already Been Served
which he claims relates a judgment against him for a gun
specification attached to his conviction for aggravated
burglary in the above-captioned matter. The Court notes that
on May 16, 2016, the Defendant also filed an [sic] document
entitled Clerification (sic) of Sentence that merely
related to documents that he had submitted to the Second
District Court of Appeals. Defendant also filed a civil
docket statement with the Second District Court of Appeals,
which was treated as an appeal by that Court and dismissed on
May 5, 2016. The Court notes that in his filings, Defendant
appears to be challenging a calculation of his sentence by
the Ohio Department of Rehabilitation and Correction, Bureau
of Sentence Computation/Records [M]anagement rather than the
judgment imposed by this Court. The Court has reviewed the
docket of the above-captioned matter and finds that Defendant
was neither charged with, nor convicted of, a gun
specification in this case. Furthermore, this Court has no
jurisdiction over the calculations of sentences by the Ohio
Department of Rehabilitation and Correction, Bureau of
Sentence Computation/ Records [Management].
Accordingly, this Court hereby OVERRULES Defendant's
Motion for Court to Consider Evidence that Gun Spec Has
Already Been Served. In rendering this Decision, the
Court notes that, in addition to considering Defendant's
motion, it has also considered the following filings made by
Defendant: (i) Motion to Show Cause, Clarification of the
Record and Correction of Administrative Rule filed on
April 6, 2016 (relating to his Court of Appeals filing and an
unrelated case in Franklin County), (ii) Clerfication
(sic) of Sentence filed on May 16, 2016 (relating to his
appellate court case), and (iii) Motion to Add
Evidence (which merely submits statutes and judicial
opinions that Defendant believes are relevant to his claims).
None of these filings affect the Court's lack of
jurisdiction over the computation of Defendant's sentence
by the Ohio Department of Rehabilitation and Correction,
Bureau of Sentence Computation/Records [Management].
Because Defendant's Motion for Court to Consider Evidence
that Gun Spec has Already Been Served is found to be without
merit, the Court also hereby OVERRULES Defendant's
ancillary Motion for Removal to Montgomery County Jail for
Defendant's Court Date.
6} Armstrong appeals from the trial court's
judgment. In his appellate brief, he argues that the trial
court, at his original sentencing in 1992, did not inform him
that he would be under the control of the Parole Board upon
his release from prison or of the consequences if he violated
the conditions of his parole. Armstrong specifically asserts
that the court should have informed him of the consequences
of committing another felony while on parole.
7} Armstrong raises issues on appeal that were not
raised by motion in the trial court. Armstrong cannot raise
these new issues for the first time on appeal. See, e.g.,
State v. Anderson,2017-Ohio-5656, 87 N.E.3d 1203,
¶ 4 (2d Dist.); Shields v. Englewood, 172 Ohio
App.3d 620, 2007-Ohio-3165, 876 N.E.2d 972, ¶ 68 (2d
Dist.) ("It is well settled that a ...