IN THE SUPREME COURT OF OHIO

MICHAEL FULLER,

PLAINTIFF-APPELLANT,

VS.

TERRY COLLINS, DIRECTOR, OHIODEPARTMENT OF REHABILITATIONAND CORRECTION,

DEFENDANT-APPELLEE.

OiilGINAL

CASE NO. 10-2081

ON APPEAL FROM THE FRANKLIN. COUNTY COURT OF APPEALS 10TH^ APPELLATE DISTRICT

No. 10AP-297; (C.P.C. No. 09CVH03-3395)

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT MICHAEL FULLER

COUNSEL FOR APPELLANT:

MICHAEL FULLER#257-3902500 SOUTH AVON BELDEN RD.GRAFTON, OHIO 44044APPELLANT PRO SE

COUNSEL FOR APPELLEE:ASHLEY RUTHERFORDASSISTANT ATTORNEY GENERALCORRECTIONS LITIGATION SECTION150 EAST GAY STREET, 16TH FLOORCOLUMBUS, OHIO 43215

G^E G1-1 E ^ D^^C Q 2 2010

CCERK OF C®URTSUPREME COURT OF ®HIO

TABLE OF CONTENTS

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREATGENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONALQUESTION ....................................................

PAGE

STATEMyNT OY'' THE CASE ...................................... . 1

STATEMENT OF THE FACTS................................... ... 1

ARGUMENT IN $UPPORT OF PROPOSITION OF LAV+7 ................... 2

Proposition of law No. 1:

Whether the lower court abused its discretion by fail-ing to issue a Declaratory Judgment after the appellantclearly met the standard set forth by that court?... 2

CONCLUSICN .................................................. 3

CERTIFICATE OF SERVICE ...................................... 3

APPENDIX.................................................APPX.PAGE

Decision of the Court of Appeals Tenth AppellateDistrict ............................................. 1

Judgment Entry of the Court of Appeals Tenth AppellateDistrict ............................................. 6

Judgment of the Supreme Court of Ohio in Yonkings v.Wilkinson, 86 Ohio St. 3d 225, 1999-Ohio-98........... 7

EXPLANATION OF WHY THIS CASE IS A CASE OFPUBLIC OR GREAT GENERAL INTEREST AND

INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION

This case presents the court with the opportunity to in-

struct lower courts on how they shall apply decisions form the

Supreme Court of Ohio to a Complaint for Declaratory Judgment.

In this case, a state court of appeals has decided an im-

portant constitutional question in a way that conflicts with

relevant decisions of this court. This court should clarify how

this court's decisions are to be interpreted.

The decision of the court of appeals threatens the structure

of law created by the General Assembly in R.C. 2929(.41(E)(2). By

its ruling, the court of appeals undermines legislative intent in

enacting the statute, ignores the plain meaning of.the statute,

and crates its own unsupported view of the statute, Moreover, the

court of appeals decision is unreasonable and absurd. They ur-

gently need correction by this court.

The implications of the decision of the court of appeals

effect every governmental entity in Ohio and touch the lives of

the public. The public's interest in the orderly operation of

governnzent is profoundly affected by a holding that the agree-

ments of municipalities are not binding on agencies of the muni-

cipality. Similarly, the public interest is affected if the plain

meaning of a statute duly adopted by the General Assembly can be

judicially altered to subvert the legislative intent.

The Supreme Court set a precedent they expected all courts

to follow in Yonkings v. Wilkinson, 86 Ohio St. 3d 225, 1999-

Ohio-98. The conclusion of the court of appeals is contrary

both to the statuory scheme of R.C. 2929.41(E)(2), and to all

legal authority of the Supreme Court of Ohio.

(i)

The judgment of the court of appeals has great general

significance also because it undermines precedent set by the

Supreme Court of Ohio and gives an unintended effect to the

Supreme Court of Ohio's judgment in Yonkings v. Wilkinson, 86

Ohio St. 3d 225, 1899-Ohio-98.

Finally, this case involves a substantial constitutional

question. The decision of the court of appeals offends Ohio's

constitutional scheme by misinterpreting a statute created by

the General Assembly, granted by the Ohio constitution, over

the constitutional power of the General Assembly. Such;.a con-

stitutional imbalance is contrary to this court's holding in

Yonkings v. Wilinson, 86 Ohio St. 3d 225, 1999-Ohio-98.

Contrary to the holding in Yonkings v. Wilkinson, 86 Ohio

St. 3d 225, 1999-Ohio-98, the lower court's interpretation of

E.C. 2929.41(E)(2) impairs the functioning of the ststute.

If allowed to stand, the decision of the court of appeals

would gtve judgments from the Supreme Court of Ohio an unin-

tended effect.

This Court must grant jurisdiction to hear this case and

review the erroneous and dangerous decision of the court of a

appeals.

The decision of the court of appeals is fundamentally

wrong in its reasoning and dangerous in its interpretation.

The decision of the court of appeals must be reversed. A

reversal will promote the exemplary purposes of the statute

and preserve the unmistakable legislative intent, which this

Court has uniformly supported.

Thus, this Court should accept the first proposition of

law in this matter.

(ii)

STATEMENT OF THE CASE

On March 6, 2009, Plaintiff-Appellant, Michael Fuller,

filed a complaint in the Frankiln County Court of Common Pleas,

seeking a "Complaint for Declaratory Judgment" that the self-

executing provisions of R.C. 2929.41(E)(2) be applied to his

consecutive indefinite terms of imprisonment to limit the sen-

tence to 15 years maximum.

On Plarch 16, 2010, the Franklin County Court of Common

Pleas issued a Final Appealable Order denying Appellant's motion

for sumraary judgment; granting Appellee's cross-motion for sum-

mary judgment.

On April , 2010, Appellant filed Notice of Appeal in the

Tenth District Court of Appeals.

On November 9, 2010, the Court of Appeals affirmed the jud-

gment of the Franklin County Court of Common Pleas.

STATEMENT OF THE FACTS

Appellant is a prisoner of the State of Ohio, currently

incarcerated at Grafton Correctional Institution.

Appellant sought a "Complaint for.Declaratory Judgirent°

against prison officials, seeking self-execution of prisoner's

consecutive indefinite sentences.

The complaint sought to have Appellant's minimum and max-

imum aggregate minimum sentences reduced by R,C. 2929.41(E)(2),

limiting the maximum aggregate minimum sentences to the statu-

torily imposed 15 years.

Appellant was convicted in 1992. Appellant's various sen-

tences total 25-75 years.

(1 )

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW

PROPOSITION OF LAW NO. 1:

Whether the lower court abused its discretion by failingto issue a Declaratory Judgment after the appellant clear-

ly met the standard set forth by that court?

Appellant argues that the lower court erred in failing to

declare that, pursuant to former R.C. 2929.41(E)(2) and the hold-

ing of the Supreme Court of Ohio in Yonkings v. Wilkinson, 86

Ohio St. 3d 225, 1999-Ohio-98, he is required to be released

from confinement after serving his aggregate minintum sentence of

15 years.

Former R.C. 2929.41(E)(2) provides, in relevant part:

(E) Consecutive terms of imprisonment imposed shall notexceed:

***

(2) An aggregate minimum term of fifteen years, plus thesum of all three-year terms of actual incarceration impo-sed pursuant to section 2929.71 of the Revised Code andthe sum of all six-year terms of actual incarceration im-posed pursuant to section 2929.72 of the Revised Code,when the consecutive terms imposed are for felonies otherthan aggravated murder or murder.

In Yonkings v. Wilkinson, 86 Ohio St. 3d 225, 1999-Ohio-

98, the Supreme Court of Ohio held that former R.C. 2929.41(E)

(2) applied only to indefinite sentences, and not to definite

sentences, overruling Yonkings v. Wilkinson, 110 Ohio App. 3d

319, 674 N.E. 2d 388. The lower court misconstrues the Yonkings

holding to mean that an inmate serving consecutive indefinite

sentences must not be released after serving the fifteen year

maximum aggregate minimum established by R.C. 2929.41(E)(2).

The lower court's interpretation is unreasonable and absurd.

(2)

CONCLUSION

The lower court has improperly found a way to give an un-

intended effect to this Court's decisions through misconstruing

and misinterpretation. This Court should accept jurisdiction

over this matter to instruct lower courts that its decisions

are not to be given this type of unintended effect.

Thus, this Court should accept the first proposition of

law in this matter.

ect ul submitted,

ullM'c a erAppellant Pro Se

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing ylemorandum

In Support of Jurisdiction was forwarded by regular U.S. mail to

Ashley Rutherford, Assistant Attorney General, Corrections Lit-

igation Section, 150 East Gay Street, 16th Floor, Columbus, Ohio

43215, on this 30th day of Novemb r, 2010.J

Yi'chaell.FullerAppellant Pro Se

(3)

APPENDIX

IN THE COURT OF APPEALS OF OHIO

Michael Fuller,

TENTH APPELLATE DISTRICT

Plaintiff-Appellant,

v:

)^A^ PEr^i.S0, OftdC3

NDU 9 pti 2. 57

°RK flF COURTS

No. 10AP-297(C.P.C. No. 09CVH03-3395)

Ernie Moore, Director, Ohio Department : (ACCELERATED CALENDAR)of Rehabilitation and.Correction,

Defendarit-Appellee.

D E C I S 1 O N

Rendered on November 9, 2010

Michael Fuller, pro se.

Richard Cordray, Attorney General, and Ashley Rutherford,for appellee.

APPEAL from the Franklin County,Co.urt of Common Pleas.

SADLER, J.

{11} Plaintiff-appellant; Michael Fuller, pro se, appeals from a judgment of the

Franklin County Court . of Common Pleas granting summary judgment in favor of

defendant-appellee, Emie Moore, Director of the Ohio Department of Rehabilitation and

Correc6on, and overruling appellant's motion for summary judgment.'

1 While this litigation was pending, Ernie Moore replaced Terry Collins as the Director of the OhioDepartment of Rehabilitation and Correction. Since the position of director is a public office, Moore'ssubstitution as the proper party to the action is automatic under Civ.R. 25(D)(1).

No. 1®AP-297 . . 2

{¶^} ?.Appellant is currently , incarcerated in the.,C,rafton Correctional Institution^ , .. . .:_, . :,.: , ;.: .:- -:.. , .,..--. ._ .` ...:. :. . .

serving numeroas indefinite sentences resulting from nutnerous convictions in the early

1990s. More specifically, in 1990, appellant was,sentenced-on two counts of aggravated

robbery and one count-of robbery. The aggregate sentence for these felonies is five.to 15

years. In 1992; appellant Was sentenced on two counts of rape, two counts of

aggravated burglary, one count of attempted felonious assault, one count of felonious

assault, and one count of kidnapping: The aggregate sentence for these felonies is 25 to

75 years. Appellant's aggregate minimum sentence for all these felonies was capped at

15 years in compliance with Ohio Adm.Code 5120-2-03(F)(1). Appellant received a

paro.le hearing after serving his.aggregate minimum.sentence of 15 years. Appellant was

denied; parole:

{13} On March 6; 2 : 0 6 9 ; appellant; filed a complaint in declaratory judgment

requesting that the trial court declare that,, pursuant to former R.C. 2929:41(E)(2); he is

entitled to be released from confinement because he has served his total aggregate

minimum, sentence of 15 years. Both parties filed motions for summary judgment: The

egu[i:.fo,und that an inmate who has committed multi,pre felonies and has served his'

aggregate minimum sentence is only entitled to a parole hearing, not release from prison.

The court granted summary judgment in favor of appellee and overruled appellant's

motion for summary judgment.

{14,}-.' Appellant sets forth the following two assignments'of error: -

[1]. Tfle:trial coUrt er'red in interpreting R.C.' 2929::41(E)(2) asnot applying to indefinite sentences.

No. 10AP-297

[2]. The trial caurt. erred= wheh; if granted` appellee's cross-motion for summary judgment since he clearly failed to meetthe:.standard set forth by`that court!

;^ :(¶S} ^. Appe►#anf.s assigt~ments of error are related'and wiA be addre`ssed^together.

Appellant argues that the trial court improperly granted summary judgment infavor of

appellee.

{16} Summary judgment is appropriate only where: (1) no genuine issue of

material fact remains tobe litigated, (2) the moving party is entitled to judgm-ent as a

matter of law, and (3) viewing the evidence most.strongly in favor of the nonmoving party,

reasonable minds:can come to but one conclusion, and that conclusion is adverse to the

nonmoving party. Tokles & Son, Lnc. vMidwestem Indemn.. Co. (1992), . 65 Ohio St:3d

621, 629, citing Harless v. Willis Day VlFarehousing Co. (1978), 54 Ohio St.2d 64;:6e;:

'.[A] party seeking summary.judgntent; on the ground that the nonmoving

party cannot prove its case, bears the initial burden of.infdiming'the trial court"of the basis

for the motion, and identifying -those portions of the : record which demonstrate the

absence of a genuine issue of material fact on the essential element(s) of the nonmoving

party's claims." DDresher v. Burt ( 1996)1 ,75 Ohio St:3d 2801 293. Once the moving party

meets its initial burden, the nonmovant bears a reciprocal burden to produce competent

evidence of the types listed in Civ. R. 56(C) showing thatthere is a genuine issue for trial.

Id.; Civ.R. 56(E). Because summary judgment is a procedural device. to terminate

litigation, courts should award it. Cautiously,:after resolving all doubts in favor of the

nonmoving party. Morphy y: k',eynotdsburg, 65-Ohio St:3d 356, 358=59; 1992-Ohio-95.

{¶8} Appellate review of summary judgment is de novo. Koos v. Cent. Ohio

Cellular, Inc. (1994), 94 Ohio App.3d 579, 588, citing Brown v. Scioto Cty. Bd. of

M1fo. 10AP-297

Commrs. (19;9.3,), 87 Ohio App.3d 7,04;; 711. T.hus,,we, applythe same standaPd as the

trial;cpurt -and conduet an :independent review, without Aeference, to: tt ►e . trial court"s

deter-mination, Maust Y. Bank=One Columbus, N:A: (199-2), 83:Ohio App.3d 103,:1 07.

{¶9} Appetlant argues that the trial court erred in failing to.declare that; pursuant

to former R.C. 2929,41(E)(2) and the holding of the Supreme Court of Ohio in Yonkings v.

Wilkinson, 86 Ohio St.3d 225, 1999-Ohio-98; he. is required to be released from

confinement after serying: his aggi-egate minimum sentence of 15 years. VCIe disagree. .

{110} Former.R.C. 2929.41(E)(2) provides, in relevant part:

(E) Consecutive terms of imprisonment imposed. shall notexceed:

(2) An aggregate minimum term of fifteen years, plus the sumof. aN: three year terms: ^oF aetuali incarceratron: tmposedpursuant to sectiori 2929.71 of the Revised Code and the sumof all six;year terms of actuai incarceration imposed pursuaritto section .2929.72 of the Revised Code, when theconsecutive terms imposed are for felonies other thanaggravated murder or murder. .

{111} In Yonkings, the Supreme Court of Ohio held that former R.C.

2929.41(E)(2) only applied to iridefinite sentences and that the 15-year cap had no

application to a definite sentence. Appellant misconstrues the Yonkings holding to mean

that an inmate serving consecutive indefinite sentences must be released after serving

the 15-year aggregate minimum term. Appellant's interpretation is unreasonable and. . ._ • . ,i?:. .. a . , . . .

absurd, as it would result in the automatic release of all defendants at 15 years regardless

of the number or severity of their crimes.

No. 10AP-297 5

{1[12} As noted above,-the aggregate niinimumsentence for appetlant's felonies

was.capped::at 15 years. At'that^point, appellant became eligiblefor parole. However`; he

was'deniedparole. As noted by the trial court, the decision+to grant-dr deny parole-is

within the exclusive discretion of the Ohio Parole Board, and an inmate who is denied

parole is not deprived of liberty unless state law mandates parole. State ex ret. Seikbert

v. Wilkinson, 69 Ohio St.3d 489, 490, 1994-Ohio-39.

{113} For the foregoing reasons, we conclude that the trial court properly granted

summary judgment in favor of appellee and overruled appellant's motion for summary

judgment. Accordingly, we overrule appellant's first and second.assignments of error.

{114} Appellant has also filed in this court a "Complaint for Declaratory

Judgment," requesfing that this court declare that, pursuant to former R.C. 2929.41 (E)(2),.^ . , _

he is entitled to be released;from:confinement because he has served his total aggregate

minimum sentence of 15 years. Initially, we note that Ohio appellate courts lack original

jurisdiction over claims for declaratory judgment. State ex reL Ministerial Day Care Assn,

v. Zelman, 100 Ohio St.3d 347, 2003-Ohio-6447, ¶22. Moreover, as stated above,

appellant is not entitled, to release from confinement.

!a^^n.....g-o^er.wled-appellant's assignments of error, we hereby affirm the

judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

TYACK, P.J., and BROWN; J., concur.

Michael Fuller, .

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE D(STRICT

Plaintiff-Appeiiant,

V.

Terry Collins, Din3ctor,. Ohio Departmentof Rehabiiitatiori and Cornection,

Defendant-Appeibe.

CQt^R i' UF ^ EAL SFftr,JNrf; 1!i -C0. Orflo

1010 N0V -9 P►t 3; 28CLERK OF COURTS

No. 10AP-2g7(C.P.C. No. 09CVH03-3395)

(ACCELERATED CALENDAR)

JUDGMENT ENTRY

For the reasons statedin the decision of this court rendered herein on

November 9, 2010, appeiianYs assignments of error are overruled, and it is the

judgment and order. of this court that the judgment of the Franklin County Court of

" Common Pleas is affirmed: Costs shall be assessqd against appellant.

SADLER, J., TYACK, P.J., and BROWN, J.

Judge Lisa L Sadler

. .. 86 Ohio St.3d 225

25?'ONKINGS, Appellant,V

WILKINSON et al., Appellees.

No.98-1305.

Supreme Court of Ohio,

Submitted May 25; 1999.

Decided Aug. 25, =7T:

394 Ohio 714 NORTH EASTERN REPORTER, 2d SERIES

Judgment affirmzd: 1. Criminal Law e-1216(3)

MOYER, C.J., DOUGLAS, RESNICK, Former statute under which consecutiveFRANCIS E. SWEENEY, Sr., PFEIFER, terms of imprisonment could not exceed anCOOK and LUNDBERG STRATTON, JJ., aggregate minimum term of 15 years, plusconcur. the sum of all three-year terms of actual

ihearceration imposed, applled o^y to indefi-nite sentences, and not to defini sentences;overruling Yonkings v. Wilkinson, 110 OhioApp.3d 319, 674 N.E.2d 388i R.C.§ 2929.4I(E)(2) (ltepealed).

2. Statutes 0=181(1).

In construing a statute,court's para-mount concern is the legislative intent inenacting the statute.

3. Statutes Q:-188

In construing a statute, words must betaken in their usual, normal, or custOmarymeaning. . . . . f ^ .

4:Criminal Law 0-1216(1)^

A°definite sentence" is just what itsname implies:a specific number ofyears ofimprisonment, rather than a range definedby minimum and maximum terms.

Prison inmate brought action against $ee publication Words and Phrasesprison officials, seeldngdeclaratory judgment: for other judicial constructions and def-coneerningself-execution of ininate's multipleinitions.defmite sentence. After grant of summary5. Statutes<,-+223.2(1:1)judgment which found that 15-year limitationon aggregate minimum terms of sentence A cardinal rule of statutory constructionapplied to inmate was affirmed, inmate filed is that all statutes relating to the same gen-motion for contempt asking court to enforce eral subject matter must be read in parideclaration that he had right to sentence materia..reduction. The Gourt of Common

Pleas, 6. Statutea 0=181(2)Pranklin County, denied motion, but foundCourt must construe statutes to svoid

unreasonable or absurd results,

7. Criminal Law 0-1023(14)

that sentence was incorrect. Appeal was tak-en, and the Court of Appeals reversed. Dis-cretionary appeal was allowed, and the Su-preme Court, Francis E. Sweeney, Sr., J.,4MU,oftmetstatfit,e' umder wh'iehnYaansLe,utVO terms o€ %Pri^onment cwuldsn^aed,an aggrega£e tnin,igtum term:ot 15°1~Ws;.;p1uap4he slim bf" aIlthwe peal< :term 3f a^IMak".ineareeration irnposed, app4e8'=onlytoil"Yiftfir,ift`e s@rttences, .and not to defl'nite,%&tt3ncea;overruling Yonkings v. Wilkinson, 110 OhioApp.3d 319, 674 N.E.2d 388.

Reversed and remanded.

Pfeifer, J., dissented and filed statement:

Denial of defendant's motion,fo.r con-tempt asl ing trial court to enforce its decla-ration that he had a right to reduction of hissentence was a final appealable order, wherejudgment entry ordered Department of Re-habilitation and Corrections to correct recordregarding defendant's sentence; by requiringcorrection of sentence;. order affected a sub-stantial right, and also determined action andprevented a judgment in defendant's favor.R.C. § 2505.02(B)(1).

Charles B. YrVieted in 1990grand theft, rchecks. He wainite terms of tcserved consecutone and one-haltenced to an initeen years, tothe definite sent

Appellant oriltion against apOhio Departmetrection and othiof his definiteone-half years bR.C. 2929.41(E)Appeals for Frafinding that apxdy at.law by vState ex rel. Y(ha6. & Corr. ((No. 93AP-655,affumed (1994),365. Appellantclaratory judgnseelting appP2929.41(E)(2) tcterms of imprismum. Thetrjudgment in aIof appeals affiryear limiton aforth in formerdefinite termsindefinite tern(1996), 110 Olu-A discretionar^not allowed. 376 Ohio St.3d 1

Because applant's sentencecourt's decisioxcontempt askiideclaration thation. In anappellee then ca term of fifte(years. The t

1. The partiesagreethat thadefinite sente)years. The re

Charles B. Yoiikings, appellant, was. con- contempt motion, but found that appellant'svicted in 1990 of multiple counts of theft, sentence was still not correct. The trialgrand theft, robbery,. and passing bad court reasoned that since appellant's 21.5-checks. He was sentenced to multiple defi- year definite sentence was to be served con-nite terms of two years or less each, to be currently with a three-to-fifteen-year indefi-served consecutively, for a total of twenty- nite sentence; R.C. 2929.41(E)(2) requiredone^ and one-half years.' . He was also sen- the minimuui terms o^three years and 21:5tenced to an indefinite term of three to fif- years to be combined and reduced tofifteenteen years, to be served concurrently with years. That nunimum was diminishable bythe definite sehtences: jail time credits and time served. Those

Appellant originally filed a mandamus ac- credits woald also reduce appellant's mazi-tion against appellees, the Director of the mum term. According to the trial court,

Ohio Departrrient of Rehabilitation and Cor- "[tlhe 15 year maximum term. from the 3 torection and others, requesting that the total 15 year concurrent sentence remains as [ap-of his definite sentences of twenty-one and pellant's] maximum term. The result is thatone-half years be reduced pursuant to former [appellant] has a 15 year diminishable mini-R.C.2929.41(E)(2)._ However, the Court of mum term and a 15; year maximum sen-Appeals for Franklin County denied the writ, tence." However, the court of appeals re-finding that appellant had att adequate reme- versed the judgment of the trial court anddx at law by way of declaratory judgtnent. held that the fifteen-year cap in former R.C.

Slate ex re4 Yonkin.gs v. Ohio Dept. of Re- 2929.41(E)(2) set a f(fteen-year lintit on ag-

ha6: & Corr. (Oct. 28, 1993), Franklin App. gregate minimum terms, but did not imposeNo. 93AP-655, unreported, 1993 WL 435190, a maximum cap. Accordingly, the court of

claratory judgment action against appellees, sentence of fifteen to twenty-one and one- t365, Appellant then proceeded to file a de- be changed to reflect that he is serving a

seeking application' of former R.C. halfyears. . ^ -2q2n drlF.V21 tn limit, his cansecutive definite

judgment in appellant's favor and; the court peal•n-t th fftthh ldi e i eeng aoof appeals affumed, Dav d H. Bodiker, Ohio Public Defender,

year nmiy un aggrGKaue .,a,,.,..u... ^.^....^ S- and Thomas R. Wetterer, Jr., Senior Staff'forthin former R.C. 2929:41(E)(2) applied to ^,,_ p it edefinite terms of imprisonment as well as °`°`y:""` `rry•••••-•

indefinite terms. Yonkings v. Wilkinson Betty D. Montgomery, Attorney General,(1996), 110 Ohio App.3d 319, 674 N.E.2d 388. and Brian M. Zets, Assistant Attorney Gen-

-Adiscretionary appeal of that decision was:: eraj, for appellees.not allowed. Yonkings v.{Wilkinson (1996),76 Ohio St.3d 1434, 667 N.E.2d 985; L,n n wrrrre V eIxrr,,.r.'.rrr.v Q. T.

Because appellees failed to change appel-

eoure's decision, appellant filed a motion for R.C. 2929.41(E)(2) limited a defendant's totallant's sentence in ccordance with the trial The issue in this case is whether former.

conternpt asking the court toLWeenforee its definite sentence to fifteen years where the

a term of fifteen to twenty-four and one-half arguments on the assumption. that formerappellee then chaaged appellant's sentence to Both parties in this case have based theu•

declaration that he had a right to the reduc- defendant had been sentenced to consecutivetion. In an apparent attempt to comply, . definite sentences in excess of that amount.

t'rhP „anier and thelower courts all seem to correct total is twenty-four and one-half years.

def3nite sentences is twenty-one and one-halt us, tor me sake or consiscency, we wui auopL u,c.

years. The record appears to indicate that the totat used by tne parties.

396 Ohio 714 NORTH EASTERN REPORTER, 2d SERIES

of imprisonment. However, because we find imposed, the minimum and maximum termsthat former R.C. 2929.41(E)(2) did not apply are separately totalled to determine a singleto definite sentences, we reverse the judg- minimum and'a single maximum. For exam-

ment of the court of appeals. ple, if an offender is sentenced to 2 to 5 yearsWhen appellant was sentenced, former for grand theft and 7 to 25 years for aggra-

R.C. 2929.41(E)(2) stated: vated robbery, the,sentence to be served is 9

^"Consecutive terms of imprisonment im-posed shall not exceed

,1:.W

"(2) An aggregate minimum term of fif-.teen years plus the sum of all three-yearterins of actual incarceration imposedpursu-ant to section 2929.71 of the Revised Code."(Emphasis added.) 142 Ohio Laws, Part I,.

. . . , .1886.

.[1]=In Yonktings v. Wilkinson (1996),110 Ohio App.3d 319, 674 N.E.2d 388, theFranklin County Court of Appeals found thatformer R.C. 2929.41(E)(2) applied to both&finite and indefinite terms of imprisonment

. because the statute's language made no dis-tinction between fndefinite and definiteterms. Furthermore, the court found thatthe referenceto a"minimum" term in formetlR.C. 2929.41(E)(2) included definite termseven though such terms have no rangede -..fined by a minimum and a maximum because"a minimum term in a determinate senteneeis the entire determinate sentence." Id at320, 674 N.E.2d at 389. However, we believethat this reasoning is flawed and that thefifteen-year cap imposed by R.C.8929.41(E)(2) was never meant to apply todefmite sentences.

[2-4] When construing a statute, thiscourt's paramount concern is the legislativeintent in enacting the statute. State v. S.^(1992), 63 Ohio St.3d 590, 594, 589 N.E.2d1319, 1323. Furthermore; "words must betaken in their usual, normal or customarymeaning." Id at 595, 589 N.E.2d at 1323. A"definite" sentence is just what its tiameimplies: a specific number of years of hnpris-onment rather than a range defined by mini-

to 30 years. The total minimum term, how-ever, may not exceed 20 years when one ofthe sentences is for aggravated murder; andmay not exceed 15 years in other cases."

[5] Confusion arose over former R.C.2929.41(E)(2) because it did not explicitlystate whether it applied toboth definite and.indefinite sentences. Rather, it stated onlythatthe aggregate "minimum" term of con-secutive sentences shall not exceed fifteenyears. The court of appealsinthis case hadpreviously found that the statute's referenceto a minimum term encompassed definiteterms. However, w¢ have held that a"cardi-nalrule" of statutory construction is that allstatutes relating to the same generalsubjectmatter must be read in pari materia. Caterv. Cleveland (1998), 83 Ohio St.3d 24, 29, 697N.E.2d 610, 615. In examining former R.C.2929.41(E)(2) in relation to R.C, Chapter2967, regarding pardon, parole,andproba-tion, it.becomes evident that the term "mini-mum" as used in former R.C. 2929.41(E)(2)was meant to apply only to indefinite sen-tences. For example, former R.C.2967.13(A) stated that "[a] prisoner serving asentence of imprisonment for a felony forwhich an indefinite term of imprisonment isimposed becomes eligible for parole at theexpiration of his minimum term!' (Empha-sis added.) 142 Ohio Laws, Part III, 5010.Contrast this with former R.C. 2967.13(K),which provided that "[a] prisoneLigpservingadefanite term of impr.isonment for a felonyof the third or fourth degree shall be re-leased from, imprisonment when he hasserved the futl terrrc of his definite sentence."(Emphasis added.) Id at.5011. Further-more, former R.C. 2967.19, now repealed,

mum and maximum terms. Referring to a which concerned- the reduction of sentencesminimum or maximum term of imprisonment for good time, referred to the reduction of amakes sense only when speaking of an indefi- "minimum or definite"term of imprisonment.nite sentence. This was recognized in the (Emphasis added,) 143 Ohio Laws, Part I,1973 Legislative Service Commission Com- 1483. Likewise, former R.C. 2967.191statedment to theoriginalversionof R.C. 2929.41:that the parole authority could reduce "the"When consecutive sentences for felonyare minimum and maximum sentence or the defi-

nite sentence" of acumstances. (EmphLaws, Part I, 582.2967.25, now repeale(serving several indetsecutively becomes 1the expiration of t!'emum terms of his sished, as provided itRevised Code." (EmjLaws, Part II, 2006:ter 2967, the wordsmum" are repeated.indefinite sentences:this statutory framereferred to in such +mer R.C. 2929,41(E)ri.a with these sectithat the cap on agiwas meant to :Vplytences. 1

[6] Additionally,utes to avoid unresults." State ex rel.cinnati (1996), 76 (N.E.2d 903, 906. Aformer R.C. 2929.41sentences and sincetainsboth a minimformer R.C. 2929.411sentences totalling r.the maximum of fifterpretation wouldrelease of all defemgardless of the nurcrimes and would dcretion in determirsentences beyond fpriate. On the otlaffirm the judgmenand hold that form-plied to the minirr.sentence, but not Iwould in effect cre:of fifteen to twent•out of a definite seone-half years, TIedly thwart the lelverting a definiteindefinite sentence.tion, attempting tcdefinite sentence rthat were never i

YONKINGS v. WILKINSONCltese714N.E.2d 394 (Ohio.a999)^

nite sentence" of a prisoner in certain cir- "ASSembl^,; Therefore, we disapprove the;cumstances. (Emphasis added.) 139 Ohio court of appeals' decSaion in Yonkings v. Wil-Lawsy Part I, 582. Finally, former R.C. „' kinson, 110 Ohio App.3d 319, 674 N.E.2d 388,2967.25, now repealed, stated that "[a] person and find that former R.C. 2929.41(E)(2) didserving several indeterminate sentences con- not apply todefinite sentences.secutively becomes eligible for parole uponthe expiration of the aggregate of the mini- [7^ ..J^Appellant also argues that the case

ished as. provided in section 2967.19 of the contempt motion is not a final appealableRevised Code." (Emphasis added.) 134 Ohio order unless there is a finding of contempt

mum terms of his several sentences dimin- shon d be d)smissed because a ruling on a

Laws, Part II, 2006. Throughout R.C. Chap- and a sanction or penalty has been imposed.ter 2967, the words "minimum" and "maxi- See Chain Bike Corp. v. Spoke 'N Wheel,mum" are repeatedly used in referring to Inc. (1971)), 64 Uhio App.2d62, 64,18 0.0:3d

nier R.C. 2929.41(E)(2) is read in pari mate- Instead, the judgment entry ordered appel-referred to in suchterminology. When for- lant's motion to find appellees.in contempt.

ria with these sections, it becomes obvious lees to correct appellant's record regarding

tences. eff¢ct determines the action and prevents awas meant to apply only to indefinite sen- - order if it affects a substantial right and in

einnati (1996) 76 Ohio St 3d 540 543 668 court ordered appellee to correct appellant'ssults." State ex rel. Cincinnati Post v. Cin- 7. 1148, 1150. In this ease, the trial

^UUsiiiG31N .VL\L/\1/, _ I^LGVGLL4/LL4 V.[61 Additionallv, we must "construe stat-utes to avoid unreasonable or absurd re- l rzeoucicoausict (iaast, oo unio z5t.sa oz4, ozo,

09NE2d

N.E.2d 903, 906. Appellant's position is thatsente4e, thus affecting a substantial right:former R.C. 2929.41(E)(2) applied to definite The order also. determined the action be-sentences and since a definite sentence con- cause it answered the only questionpresent-tains both a minimum and maximum term, ed by the action: whether appellant's sen-

former R.C. 2929.41(E)(2) limited consecutive tence must be changed in accordance with itssentences totalling more than fifteen years to uruer. r inany, cne oruer preventea a,7uag-.

release of alLdefendantsat fifteen;years re- minimum term of incarceration. Therefore,

,, id- ment in appellees' favor declaring that for-the maximum of fifteen years. *typk_terpretation-would result in the autoniatic mer R.C. 2929.41(E)(2) affeeted'only the

gardless of the number or severity of their tne denial ot the motion of contempt in this,^amea ;and tuould, deStray a trial court's. dis- case was a final appealable order.

On fi;he nther-.hand,.if we.w.ere-to servh4g a twenty-one and one-half-,year defi-sentenees beyond fifteen yearswere appro- tence should be changed to reflect that he iscretion in determiningwhether consecutive Based on the foregoing, appellant's sen-.

aflirm the judgment Afthe court of,appeals nite sentence.and hold that former RIC 2929 41(E)(2)- ap-. .

Judgment reversed and cause remandedplied to the minimum aspect of a defmite.. sentence, but not the maximum aspect, we

MOYER CJ DOUGLAS, ., , RESNICK,would in effecE create an indefinite sentenceCOOK and LUNDBERG STRATTON, JJ.,nf fif4cnn 4n ^.7 ...,o i,^IR „ o..

out ofa definite sentence of twenty-oneandconcur.

one-half years. This i•esult would undoubt- PFEIFER, J., dissents, would reverse theedly thwart the legislature's intent by. con- judgment of the court of appeals, and would

indefinite.sentence. Wer eitherinterpreta-tion, attempting to apply the statute to adefinite sentence results in illogical resultsthatwereneverintended by the General