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Hinton v. Ohio Bureau of Sentence Computation

Court of Appeals of Ohio, Tenth District

January 23, 2018

Morris K. Hinton, Plaintiff-Appellant,
Ohio Bureau of Sentence Computation, et al., Defendants-Appellees.

         APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 16CV-6908

          On brief: Morris K. Hinton, pro se.

          On brief: Michael DeWine, Attorney General, and George Horváth, for appellees.


          BRUNNER, J.

         {¶ 1} Plaintiff-appellant, Morris K. Hinton, appeals a decision and entry of the Franklin County Court of Common Pleas entered February 23, 2017, that granted summary judgment to defendants-appellees, Ohio Bureau of Sentence Computation ("OBSC") and Ohio Department of Rehabilitation & Correction ("ODRC") (collectively referred to as "appellees"). Because we agree with the trial court that credit for good behavior is deducted from the minimum but not the maximum measures of an indeterminate sentence, we overrule Hinton's assignment of error and affirm.


         {¶ 2} On December 19, 1994, following Hinton's guilty plea to two counts of rape, the Hamilton County Court of Common Pleas sentenced Hinton to two indefinite sentences of 9 to 25 years, to be served concurrently with each other. (Dec. 19, 1994 Jgmt Entry case No. B 945589, Ex. A attached to July 25, 2016 Compl.) Over 21 years later, on July 25, 2016, Hinton filed a complaint for a declaratory judgment against appellees alleging that three years of credit for good behavior, having been applied to the minimum term of his sentence, should also have reduced his total sentence. (Compl.) Hinton's complaint included copies of correspondence between Hinton and appellees indicating that Hinton and appellees reached an impasse on the issue. (Exs. B-C attached to Compl.)

         {¶ 3} Appellees answered, admitting most of the pertinent background facts, including that Hinton began serving his 9-to-25-year sentence on December 27, 1994. (Sept. 26, 2016 Answer at ¶ 1-5[1].) On October 21, 2016, after filing its answer, appellees filed "DEFENDANTS' MOTION FOR LEAVE TO PROCEED, INSTANTER WITH THEIR MOTION FOR SUMMARY JUDGMENT AND IN THE ALTERNATE MOTION TO DISMISS WITH MOTION TO STRIKE PLAINTIFF'S EXHIBIT AT PAGE 13 OF PLAINTIFF'S COMPLAINT AS IRRELEVANT." (Emphasis sic.) (Oct. 21, 2016 Mot. for Summ. Jgmt.) Essentially, appellees' motion had the potential of being four motions in one-a motion to strike certain news articles attached to the complaint, a motion for summary judgment, a request that the trial court consider the motion for summary judgment, and, in the alternative, a motion to dismiss.

         {¶ 4} Exhibits were filed with the four-in-one motion, the trial court treated it as a summary judgment motion, and the parties addressed it in the record as a motion for summary judgment. (Feb. 23, 2017 Decision in passim; Feb. 21, 2017 Entry at 2.) The trial court did not need to give separate notice under Civ.R. 12(B)(6) that it was considering summary judgment, since an answer had been filed, and appellees' out-of-rule motion to dismiss was in the alternative to its motion for summary judgment[2]

          II. JURISDICTION[3]

         {¶ 5}

"Whenever a want of jurisdiction is suggested by a court's examination of the case or otherwise, the court has a duty to consider it, for the court is powerless to act in the case without jurisdiction." Id., citing Patton v. Diemer (1988), 35 Ohio St.3d 68, 70, 518 N.E.2d 941, and Wandling v. Ohio Dept. of Transp. (1992), 78 Ohio App.3d 368, 371, 604 N.E.2d 825. As a result, "[e]ven though not asserted, lack of subject matter jurisdiction may be raised sua sponte, by the court at any stage of the proceedings." Id., citing Fox v. Eaton Corp. (1976), 48 Ohio St.2d 236, 238, 358 N.E.2d 536.

Adams v. Cox, 10th Dist. No. 09AP-684, 2010-Ohio-415, ¶ 19. It is incumbent on us to consider our jurisdiction, and in doing so we examine two issues: first, whether a final appealable order was before us when the motion to strike had not been ruled on by the trial court, and second, whether we can entertain an action such as Hinton has filed in declaratory judgment.

         {¶ 6} The trial court did not rule on appellees' motion to strike before entering judgment for appellees. Under CitiMortgage, Inc. v. Guinther, 10th Dist. No. 12AP-654, 2013-Ohio-4014, ¶ 24, we previously held that a trial court's failure to rule on a motion to strike before granting summary judgment to the moving party is deemed to be a denial of the earlier filed motion. See also FitWorks Holdings, L.L.C. v. Pitchford-El, 8th Dist. No. 88634, 2007-Ohio-2517, ¶ 9 (noting "[i]t is well-settled that, when a motion is not ruled on, it is deemed to be denied"). Appellees' motion to strike is denied as by operation of law, leaving no matters unaddressed by the judgment of the trial court and a final appealable order capable of our review.

         {¶ 7} As for jurisdiction over Hinton's claim in declaratory judgment, we review the nature of his claim, whether prior case law permits him to use declaratory judgment as a means to seek relief, and whether he has met the statutory requirements of declaratory judgment pursuant to R.C. 2721.12, which are jurisdictional. Copeland v. Tracy, 111 Ohio App.3d 648, 656 (10th Dist.1996).

          A. The Nature of Hinton's Claim

         {¶ 8} Incarcerated, Hinton seeks an earlier maximum sentence release date for two counts of rape. His indeterminate sentence predates the current statutory scheme for "good time" by several years. He was sentenced in 1994, and on March 1, 1998, the Ohio Adult Parole Authority ("APA") changed the guideline system it used to consider inmates for parole.[4] What was formerly referred to in law as "good time" as a consideration for early release is eliminated under the new guidelines and is now presumed by the requirements of the statute. Ankrom v. Hageman, 10th Dist. No. 04AP-984, 2005-Ohio-1546.

         B. Case Law Treatment of Declaratory Judgment for "Good Time" Claims

         {¶ 9} In Hageman, the inmate appellants asserted among other claims that the APA did not promulgate new guidelines according to the Administrative Procedure Act. Id. at ¶ 7. This Court held that parole guidelines are not a rule and do not fall under the purview of the declaratory judgment statute. Id. at ¶ 36, citing Wise v. Ohio Dept. of Rehab. & Corr., 84 Ohio App.3d 11 (10th Dist.1992) ("Thus, we concluded in Wise that a declaratory judgment action is not the appropriate remedy to preclude utilization of a rule not properly adopted in accordance with statutory procedures. We later followed Wise to find that declaratory judgment is not the proper method to contest the utilization of a rule regarding the APA's death penalty clemency procedure that was not properly promulgated. See Coleman v. Ohio Adult Parole Auth. (1996), 115 Ohio App.3d 212, 215, 685 N.E.2d 241. Thus, pursuant to Wise and Coleman, appellees would be precluded from using a declaratory judgment action to challenge the promulgation of the guidelines.").

         {¶ 10} But Hinton, who was sentenced before March 1, 1998, does not challenge how guidelines were promulgated, and his claim does not concern clemency for the death penalty. Rather, he challenges appellees' application of sentence reduction guidelines to his sentences, claiming in his sole assignment of error prejudice to his "liberty interests." (Hinton's Brief at ii.) He does not challenge the underlying judgment of the sentencing court.

         {¶ 11} We previously stated that collateral civil attacks by an inmate who filed an original action for a writ of mandamus against ODRC and the chief of OBSC seeking recalculation of his end of sentence date was a civil action and a collateral civil attack on the judgment. State ex rel. McGlown v. Mohr, 10th Dist. No. 14AP-478, 2015-Ohio-1554, ¶ 1, 6. In McGlown at ¶ 6, we cited State v. Reynolds, 79 Ohio St.3d 158 (1997), syllabus ("Where a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in R.C. 2953.21.").[5]

         {¶ 12} Because McGlown's action had been filed in mandamus it could be treated as a postconviction motion for two reasons. First, R.C. 2731.02, authorizing writs of mandamus, permits courts to issue them simply on the information of the party beneficially interested. Second, under Hageman, we held that what are now essentially "good time" guidelines are not rules. Mandamus commands the performance of an act that the law specifically enjoins as a duty resulting from an office, trust, or station. R.C. 2731.01. Under Hageman and in this context, mandamus, like declaratory judgment, cannot issue based on guidelines. McGlown does not apply to ...

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