Morris K. Hinton, Plaintiff-Appellant,
Ohio Bureau of Sentence Computation, et al., Defendants-Appellees.
from the Franklin County Court of Common Pleas C.P.C. No.
brief: Morris K. Hinton, pro se.
brief: Michael DeWine, Attorney General, and George
Horváth, for appellees.
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.) 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
"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
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. 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.
Case Law Treatment of Declaratory Judgment for "Good
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
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.").
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