IN THE SUPREME COURT OF OHIO

STATE OF O$IO6 EX REL.

MILTON CO'TTONe

Appellant,

CARL S. ANDERSl1N, iPARDEM;

Appellee(s) et al.

CASE FO. 2011-1534

On Appeal From The LorainCounty Court of Appeals,Ninth Appellate District

Court Of AppealsCase No. 10CA009830

BRIEF OF APPELLANT MILTON COTTON

liIPPEAL FROM THE NINTH DISTRICT COURT OF APPEAL

COUNSEL FOR APPELLANT: ( 28 USC § 1654)

MILTON CtTTON,. A- 214-3171800 S. Avon-Belden RoadC,RAFTOHe OHIO 44044

COUNSEL FOR APPELLEE(S)S

THELMA TH®PIAS PRICE (0033976)ATTORNEY GELYERAL

CORRECTION LITIGATION SECTION1 5 0 EAST GAY STREET# 16th Fl.COLUMBUS, ®IlIO 43215-6801

OCT 1 1''^o 1 i

CLERK ®F'CaURTSUPREM E CpuRT,pF OHIO

CLERK T- suO^^RTSU^'^^AJi^ ^t,Uy;^^^ UF OHdU

TABLE OF CONTENTS

TABLE OF AUTHORITIES ... ...............................

STATEMENT OF PEOPOSITIONPRESENTED FOR REVIEW ...................................

I. PROCEDURAL BACKGROUND ..1 ...........................

II. MATERIAL FACTS .....................................

III. STANDARD FOR SUMMARY JUDGMENT ..,.,.,,.,,,,,,..,,,0,

ARGUMENT

PROPOSITION NO. II

THE APPELLATE COURT COMMITTED PREJUDICIALERROR IN. NOT GRANTING SUMMARY JUDGMENT TOTHE APPELLANT

PROPOSITION NO. II

..................................

PAGE

6-7

7-8

"THE NINTH DISTRICT COURT OF APPEALS COMMITTEDPREJUDICIAL ERROR AND DENIED THE APPELLANTDUE PROCESS OF LAW WHEN IT DID NOT GIVEPRECLUSIVE EFFECT IN THE JUDGMENT OF THECOURT OF APPEALS." ............................. 8-10

PROPOSITION NO. III

°THE NINTH DISTRICT COURT OF APPEALS CONNITTEDPREJUDICIAL ERROR AND DENIED THE APPELLANTDUE PROCESS OF LAW WHEN IT WAS PRECLUDEDBY THE DOCTRINE OF THE LAW OF THE CASE[.]" ..... 8-10

V. CONCLUSION ..........................................

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

APP^''.NHIX ................................................. 12

A TRUE AND CERTIFIED COPY OF THE DECISION AND JOURNALENTRY IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICTeCOTTON v. ANDERSON,, APP, NO. 10CA009830; DATED AUGUST81 2011 (APPENDIX A) .............................. ........ 54-60

A TRUE AND CERTIFIED COPY OF THE MANDATE/DECISION ANDJOURNAL ENTRY OF THE NINTH DISTRICT APPELLATE COURT'SCASE IN COTTON V. ANDERSONt APP. NO.: 04CA008536,2005-ohic-994; DATED MARCH 9, 2005. (APPENDIX B).... 09000. 61-69

-i_

TABLE OF CONTENTS CaNTINUES

A TRUE COPY OF THE COURT ORDER; RESPONDENT HAVING FILEDHIS MOTION FOR SUMNARY JUDGAlENT ON 01/31/08; PETITIONERGRANTED UNTIL 03/14/08 TO FILE A RESPONSE; RESPONDENTGRANTED UNTIL 03/31/08 TO FILE A REPLY. (APPENDIX C) ,,,., - 70

A TRUE AND CERTIFIED COPY OF SENTENCE; (R.C. 2725.04(D))IN STATE v. COTTON, CUYAHOGA COUNTY COURT OF COMMONPLEAS CASE NO. CR-281730; DATED AUGUST 14, 1992.(APPENDIX D)

...................^r.....r.....Y.............

TABLE OF AUTHORITIES CITED

CASES

Cotton v. Anderson, 2005-Ohio-994 ...... ..................Burdine v. Aver Dennison Corp., 2000-Ohio App. LEXIS

=0 ....... .....................:....r.........1...........-.

Goodson v McDonough Power E-ui ,(1983), 443 N.E.2d 979 ...................................................

Koos v. Central Ohio Cellular, Inc., (1994) 94 OhioApp.. 3^ 57

•............r..........a ...w....r...........r

Morris v. Ohio Std. Oil Co,(1982), 433 N.E. 2d 615 .....

Nolan v. Nolan, 42-6 N.R. 2d 410 .... .. . . . . . ..... . . .. . . . . . .

Peterson v. Buke e Steel Casings, (1999) 729 N.E. 2d816-1 7 .......... ........................................

71

PAGE

8-9

10

6

8-10

7

State ex rel. Dailey v. Morgan, 761 N.E. 2d 140-141 7

Struzynski v. Borden Chem. Div. Borden, Inc., 118 N.E.

79 .......................•.............-............-.-.. 6

STATUTORY PROVISIONS

Ohio Revised Code Section.2725.04(D) .........9

RULE

Ohio Rules of Civil Procedure 56(C) ..................... 61 -ii-

STATEMENT OF PROPOSITIONSOF LAW PRESENTED FOR REVIEW

ARGUMENT

PORPOSITION NO. I

THE APPELLATE COURT COMMITTED PREJUDICIALERROR IN NOT GRANTING SUMMARY JUDGMENT TOAPPELLANT.

PROPOSITION NO. II

"THE NINTH DISTRICT COURT OF APPEALS COMMITTEDPREJUDICIAL ERROR AND DENIED THE APPELLANTDUE PROCESS OF LAW WHEN IT DID NOT GIVEPRECLUSIVE EFFECT IN THE JUDGMENT OF THE COURTOF APPEALS.~

PROPOSITION NO. III

"THE NINTH DISTRICT COURT OF APPEALS COMMITTEDPREJUDICIAL ERROR AND DENIED THE APPELLANTDUE PROCESS OF LAW WHEN IT WAS PRECLUUED BYTHE DOCTRINE OF THE LAW OF THE CASEL.)"

I. PROCEDURAL BACKGROUND

Because this is the third time this matter was before

the Ninth District Court of Appeals, Appellant's convictions

and sentences are detailed in this appeal as they are in

Appellant's prior appeal. See Cotton v. Anderson, 9th Dist.

No. 04CA808536, 2005-ohio-994, at 11-9 See, Certified Copy

at (Appendix B) On January 31, 2007, Appellees filed a Motion

for Summary Judgment. On 2/4/08 the trial court issued an ®rder.

Petitioner granted until 03/14/08 to file a Response; Respondent

granted until 03/31/08 to file a Reply. id. at (Appendix C)

On March 6, Appellant filed his Response, Cross-Motion for

Summary Judgment. Appellee failed their reciprocal burden to

file a timely Reply. On. May 24, 2010, the trial court denied

Appellant's Sum®ary Judgment. See, Certified Judgment Entry

(Appendix D) Appellant filed a timely appeal for the third time

to the Ninth Appellate District. On August 8, 2011, the appeals

court granted appellee(s) Motion for Summary Judgment. See,

Certified Copy Decision And Journal Entry at (Appendix A)

II. MATERIAL FACTS: [22-9]

[12) On March 30, 2004, Milton Cotton filed a petition for

writ of Habeas Corpus, alleging that Appellee, Carl Anderson,

warden of Grafton Correctional institution, was "lfnowingly

implementing an unlawful liberty restraint without jurisdiction

to do so[.]" Appellant alleged three qrounds in support of his

writ, to wit:

(Page 1)

(1) that he is.illegally imprisoned and restrained, because

appellee calculated and imposed a sentence upon appellant for

his crimes in the amount of 641 to 210 years for his indefinite

sentences; (2) that he is illegally imprisoned and restrained,

because appellee "Corrected" sentencing errors by imposing

appellee•s interpretation of a. proper term of sentence; and

(3) that he is illegally imprisoned and restrained, because

the trial court had no authority to impose prison sentences

in case numbers CR-259650 and CR-281730 since the trial court

did not find appellant guilty of any crimes in regard to those

cases. Id. (MCotton Iu) at 12

[13] Appellant appended to his petition for writ of habeas

corpus copies of the relevant commitments. In additipn, appellant

appended to his writ affidavits as t®; prior actions and his

indigency. See Cotton v. Anderson, 9th Dist. No. 04CA008536,

2005-E)hio-994, at 13 ("Cotton I").

[24] Pursuant, to journal entry filed June 14, 1991, appellant

was sentenced after conviction in case number CR-257742 to one

and one-half years for the crime of grand theft motor vehicle,

in violation of R.C. 2913.02; to one year for the crime of

failure to comply with order or signal of police officer, in

violation of R.C. 2921.331; and to one year for the crime of

possession of criminal tools, in violation of R.C. 2923.24,

each term to be served consecutively. Pursuant to journal entry

filed June 17, 1991, appellant was sentenced after conviction

to two to ten years; indefinite, for the crime of receiving

(Page 2)

stolen property, which term was to be served consecutively with

the sentence ordered in case number CR-257742. Id.

("Cotton I') at $4

[15] Pursuant to a certified copy of sentence, on August

14, 1992, appellant was sentenced after conviction in case number

CR-2811731 to six months for the crime of attempted theft, in

violation of R.C. 2923.02 and 2913.02. Finally, pursuant to

a certified copy of sentence, on August 14, 1992, appellant

was sentenced after conviction in case number CR-281730 to four

to ten years, indefinite, on each of five counts of receiving

stolen property, in violation of R.C. 2913.51; to one-and-a-

half to five years, indefinite, on each of two counts of

concealing identity of motor vehicle, in violation of R.C.

4549.62; to one-and-a-half to five years, indefinite, on each

of four counts of possession of criminal tools, in violation

af R.C. 2923.24; to four yearsv definite, in each of two counts

of title law violation, in violation of R.C. 4505.19; to five

to -twenty-five years with five years actual time for the crime

of drug trafficking, in violation of R.C. 2925.e3; to four to

ten years, indefinite on each of two counts of receiving stolen

property, in violation of R.C. 2913.51, plus three years on

two firearm specifications; to seven to twenty-five years with

seven years actual time for the crime of drug trafficking, in

violation of R.C. 2925.03; to five to fifteen years, fndefinite,

for the crime of drug trafficking, in violation of R.C. 2925.03;

and to one-and-a-half to five years for the crime of having

(Page 3)

weapons while under disability, in violation of 2923.13;

plus three years on a specification prior to the remaining terms,

were to be served consecutively. in sum, appellant was sentenced

in case number CR-281730 to serve three years on his

specification, then eight years on the definite sentences,

followed by a minimum of 55J to a maximum of 170 years on the

indefinite sentences. Id. ('Cotton I") at ((5

[g6l Effective August 21, 1992, appellee calculated

appellant's total aggregate sentence as three years on the gun

specifications, consecutive with eight years definite time,

consecutive with a minimum of 641 to a maximum of 210 years

on the indefinite sentence. Id. ("Cott©n I') at t6

Ct7J By interoffice communication dated August 17, 1993,

from appellee's corrections records manager to appellant,

appellee informed appellant regarding his first parole hearing

date and calculation of sentence. appellee's agent informed

appellant that his sentence started on August 21, 1992, with

75 days jail credit. The interoffice communication further

informed appellant that he must serve all three years on his

specification sentence; five years, seven months, and six days

on his definite eight-years sentence; and ten years and six

months on the fifteen-year sentence for the 551-years indefinite

sentence. The communication expressly stated that °15 yrs. is

the most you can serve on for the 551 yrs". Based on appellee's

(Page 4)

calculation of appellant's sentence and the information regarding

the time he was required to serve, appellant filed his petition

for writ of habeas corpus. Id. ("Cotton i") at 17.

(18] In lieu of an answer, appellee filed a motion to

dismiss and amended motion to dismiss the petition for

failure to state a claim upon which relief can be granted. In

support, appellee appended an affidavit of Mary Oakley, Assistant

Chief of Bureau of Sentence Computation, as well as a memorandum

addressing the calculation of appellant's sentence. Ms. Oakley's

memorandum clarified appellant's minimum and maximum sentence

out of case number CR-281730. The memorandum clarified that

appellant's minimum indefinite-term sentence in case number

CR-281730 was relevant for determination of appellant's initial

parole hearing date only. The memorandum noted that appellant's

sentence in other cases had been aggregated and that his maximum

expiration of sentence is March 20, 2194. Id.

("Cotton I") at 18.

('19) On May 19, 2004, the trial court granted appellee's

motion to dismiss and dismissed appellant's petition for writ

of habeas corpus. It is clear from the recitation of the facts

in this trial court's journal entry that this court adopted

and relied on the information contained in Ms. Oakley's

memorandum. Appellant subsequently moved this trial court for

relief from judgment and to amend the judgment entry. The trial

court denied the motion without analysis. Appellant timely

appeals, setting forth on assignment of error for review. id.

(Page 5)

("Cotton I") 9th Dist. No. 04CA008536, 2005-Ohio-994 at [111-9]

(Appendix B)

III. STANDARD F9R SUMMARY JUDGMENT

Summary Judgment is a procedural device to terminate

litigation and to avoid a formal trial where there is nothing

to try. See, Norris vOhio Std, Oil Co., (1982), 70 Ohio St.

1, 433 N.E. 2d 615; Struzvnski v. Borden Chem. Div., Borden.

Ina., (Trumbull Cty. 1989), 57 Ohio App. 3d 118, N.E. 2d 279.

"Pursuant to Civ. R. 56(C), Summary Judgment way be granted

when the moving party demonstrate that: (1) there is no genuine

issue of fact; the moving party is entitled to judgment as a

matter of law; reasonable minds can come to but one conclusion

and that conclusion is adverse to the party against whom the

motion for summary judgment is made, that party being entitled

to have the evidence construed most strongly in [that party's]

favor. The moving party bears the initial burden of informing

the trial court of the basis for the motion and identifying

the portions of the record that established the absence of a

genuine issue of fact on a material element of the non-moving

party's claim. After the moving party satisfies this burden,

the non-moving party bears a reciprocal burden to respond by

affidavit, or as otherwise provided in Civ. R. 56, and must

set forth specific facts showing the existence of a genuine

issue for trial, if the non-moving party fails to so respond,

summary judgment, if appropriate, shall be entered against (the

(Page 6)

non-moving party]. Peterson v. Bukeye Steel Casings, (Franklin

Cty. 1999), 133 Ohio App. 3d 715, 720-21, 729 N.E. 2d 816-17.

In the summary judgment context, a"material fact is a fact

that "might affect the outcome of the suit under the governing

law of the case. Burdine v. Avery Dennison Corp., (Lake Cty.

2000), No. 89-L-269, 2000 Uhio App. LEXIS 2350, at 113W14. When

determining what constitutes a"genuine issue," the court decides

"whether the evidence presents a sufficient disagreement to

require submission to a jury, or whether is so one-sided that

one party must prevail as a matter of law.

IV. PROPOSITION OF LAW NO. 1

THE APPELLATE COURT COMMITTED PREJUDICIALERROR IN NOT GRANTING SUMMARY JUDGMENT TOTHE APPELLANT.

Appellate review of summary judgment is de novo and as such,

the Appellate Court stands in the shoes of the trial court and

conduct independent review of the record. Koos v. Central Ohio

Cellular, Inc., (1994), 94 Ohio App. 3d 579.

Appellant argued (Ground One) on appeal, to wit: (1) that

he is illegally imprisoned and restrained, because appellees

calculated and imposed a sentence upon appellant for his crimes

in the amount of 641 to 210 years for his indefinite sentences."'

State ex rel. Dailey v. Morgan, 761 N.E. 2d 140-141, in support

of his claimed violation of Separation of Powers Doctrine.

The Ninth District Court of Appeals Fixed this case by

changing Appe3lant's argument to (Grounds Two), to wit:

(Page 7)

[18] "that the Department of Rehabilitation illegally calculated

his sentence....[.], "that the Department of Rehabilitation

illegally 'correct[ed]" and "interpret[ted[" his sentence[.]

further stating: Mr. Cotton suggests that the Department of

Rehabilitation has modified his sentence and reduced the minimum

term to 15 years..." The Ninth District;Court of Appeals stated:

Mr. Cotton does not point to any dispute of material fact, and

we find none in this case.

Appellant argues that Ground One is clearly a dispute of

material fact. Appellant argued A Separationof Powers Violation.

The only Ground Appellant argued was Ground One, "alleging that

he is illegally imprisoned and restrained, because appellees

calculated and iapbsed a sentence upon appellant for his crimes

in the amount of 641 to 210 years for his indefinite sentences."

PROPOSITION NO. II

"THE NINTH DISTRICT COURT OF APPEALS COIlMITTEDPREJUDICIAL ERROR AND DENIED THE APPELLANTDUE PROCESS OF LAW WHEN IT- DID NOT GIVEP-RECLUS-I-nE EFFECT IN THE JUDGMENT OF THE COURTOF APPEALS."

PROPOSITION NO. III

"THE NINTH DISTRICT COURT OF APPEALS COMMITTEDPREJUDICIAL ERROR AND DENIED THE APPELLANTDUE PROCESS OF LAW WHEN IT WAS PRECLUDED BYTHE DOCTRINE OF THE LAW OF THE CASE[.]"

In this assignment, Appellant argues that the trial court

was precluded by the doctrine of the law of the case. Nolan v.

Nolan, 426 N.E. 2d 410. The issues in this case have been

previously determined de novo in Appellant's appeal by the Court

(Page 8

of Appeals in, Cotton v, Anderson, 9th. Dist. No. 04CA008536,

2005-Ohio-994

The Appellant filed a Motion for Summary Judgment. in support

of the Motion for Summary Judgment both Certified Decision and

Journal Entries of the Court of Appeals was attached. A copy

of the commitment or cause of detention/Certified copy of Sentence

was attached as (Exhibit DD) in accordance to R.C. 2725.04(D).

Yet, the Appellate Court points to: While incarcerated, Mr. Cotton

asked the records manager for clarification on his sentence.

In an interoffice communication to Mr. Cotton, the records manager

wrote, 'TNE (PAROLE)BOARD DATE IS FIGURED ON THE MINIMUM SENTENCE

OF: 3YRS. AIG (CONSECUTIVE TO) SYRS. DEF. [SERVED CONSECUTIVE

TO] (75[EARS1 IS THE MOST YOU CAN SERVE ON FOR THE 55i[YEARS].)~

Appellant clearly demonstrated that there was no genuine

issue to any material fact that Appellant was entitled to judgment

as a matter of law in accordance to R.C. 2925.04(D)

Appellant argues that the trial court erroneously failed

to give preclusive effect to this court's prior decisions, thereby

suggesting that this court previously determined the matter before

it on appeal when it solely addressed both, procedural and

factual issues.

One aspect of the doctrine of res judicata is collateral

estoppel or as otherwise referred to, issue preclusion. A prior

judgment estopps a party, or a person in privity with him, from

subsequently relitigating the identical issue raised in the prior

(Page 9)

action. Goodson v. McDonouah Power Eauip., (1983), 2 Ohio St

3d 193, 2 OBR 732, 443 N.E. 2d 978.

Appel3ant argued Ground One, in his Summary Judgment and on

appeal. "that he is illegally imprisoned and restrained, because

appellaa calculated and imposed a sentence upon appellant for

his crimes in the amount of 641 to 210 years for his indefinite

sentence[.)°

The Appellate Court found in ("Cotton 1°) at 16 that

Appellee's calculated appellant's total aggregate sentence as

three years on the gun specification, consective with eight years

definite time, consecutive with a minimum of 641 to a maximum

of 210 years on the indefinite sentence. Id. ("Cotton I") at

16 and, again On August 17, 1993, By interoffice communication.

Id. 17 The law-of-the-case doctrine is similar to res judicata,

providing that "the decision of a reviewing court in a case

remains the law of that case on the legal question involved for

all subsequent proceedings in the case at both the trial and

reviewing levels." Nolan v. Nolan, (1984), 11 Ohio St. 3d 1,3.

V. IN CONCLUSION

A review of the record in this case clearly shows that the

Appellate Court did not rule on Ground One, The Appellate Court

Fixed this case by changing the facts and changing Appellant's

argument from Ground One too Ground Two. The doctrine of res

judicata and the doctrine of the law-of-the-case precluded the

issues. Consequently, the judgment of the Appellant Court must

be revered and final judgment entered in favor of Appellant.

(Page 10)

This Ohio Supreme Court has to review Appellant's Ground

One. Declaring that Appellee's violated the Separation of Powers

Doctrine when it calculated appellant's sentence, thus appellant

is a wrongfully restrained person.

Respectfully submitted,

Milton Cotton, A-234-3171800 S. Avon-Belden RoadGrafton, Ohio 44044

CERTIFICATE OF SERVICE

The foregoing Brief of Appellant has been sent to counsel

Thelma T. Price, 150 East Gay Street, 16th. Fl.,, Columbus, Ohio

43215-6001; Via U.S. Mail this AL&, of ®a;AIZCr , 2011.

Respectfully submitted,

Milton Cotton, A-234-3171800 S. Avon-Belden RoadGrafton, Ohio 44044

(Page 11)

A P P E N D I X

A TRUE AND CERTIFIED COPY OF THE DECISION AND JOURNALENTRY IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICTICOTTON V. ANDERSON, APP. NO. tOCA009830; DATED AUGUST8 v 2011 (APPENDIX A ) ........................... . . . . . . . . . .

PAGE

• 54-60

A TRUE AND CERTIFIED COPY OF TNE MANDATE/DECISION ANDJOURNAL ENTRY OF THE NINTH DISTRICT APPELLATE COURT'SCASE IN COTTON v. ANDERSUNS APP. NO. 04CA008536#

2005-ohio-994; DATED MARC'H 9t 2005. (APPENDIX B) ^^^^^^^o... 61-69

A TRUE COPY OF THE COURT ORDER; RESPEQNDENT HAVING FILED

HIS LHOTION FOR SUMMARY JUDGMENT ON 01/31/08; PETITIONER

GRANTED UNTIL 03/14/08 TO FILE A RESPONSE; RESPONDENT

GRANTED UNTIL 03/31/08 TO FILE A REPLY. (APPENDIX C) „,.,,, 70

A TRUE AND CERTIFIED COPY OF SENTENCE; (R.C. 2725.04(D))IN STATE y. COTTON# CUYAHOGA COUNTY COURT OF COMMONPLEAS CASE NO. CR-281730; DATED AUGUST 140 1992.

(APPENDIX D) ............................................... 71

(Page 12)

STATE OF OHIO ))ss:

COUNTY OF LORAIN

MILTON COTTON

)

Appellant

v.

CARL ANDERSON

Appellee

IN THE COURT OF APPEALSNINTH JUDICIAI: DISTRICT

C.A. No. 10CA009830

APPEAL FROM JUDGMENTENTERED IN THECOURT OF COMMON PLEASCOUNTY OF LORAIN, OHIOCASE No. 04CV13808.1

DECISION AND JOURNAL ENTRY

Dated: August 8, 2011

BELFANCE, PresidingJudge. n

{1(1} Milton Cotton appeals from the trial court's overraling of ^ motion for summary

judgment regarding his petition for a writ of habeas corpus. For the reasW set fogh below; we

affirm.C)^

I.

{¶2} In 1991 and 1992, TS?1r. Cotton was convicted of various crimes for wbich he

received definite and indefinite sentences. Because this is the third time this matter is before us,

Mr. Cotton's convictions and sentences are detailed in W. Cotton's prior appeal. See Cotton v.

Anderson, 9th Dist. No. 04CA008536, 2005-Ohio-994, at ¶14-5 ("Cotton P'). At issue in this

case is Mr. Cotton's indefinite sentence from August 14, 1992, which ranges from 55 years and 6

months to 170 years.

{1[3} While incarcerated, Mr. Cotton asked the records manager for clarification on his

sentence. In an interoffice communication to Mr. Cotton, the records manager wrote, "THE

^,APEENAIX A) 54

2

[PAROLE] BOARD DATE IS FIGURED ON TIIE MININIUM SENTENCE OF: 3YRS. AIG

[CONSECUTIVE TO] 8YRS. DEF. [SERVED CONSECUTIVELY TO] 15YRS. (15[ YEARS]

IS THE MOST YOU CAN SERVE ON FOR THE 55 1/2 [YEARS].)"

{14} In 2004, Mr. Cotton filed a petition for a writ of habeas corpus, alleging that

appellee Carl Anderson, Warden of the Grafton Correctional Institution, was "knowingly

implementing an u.nlawfut liberty restraint without jurisdiction to do so[.]" Warden Anderson

filed a motion to dismiss Mr. Cotton's petition; attaching an affidavit of Mary Oakley, the

Assistant Chief of the Bureau of Sentence Computation for the Department of Rehabilitation and

Corrections, and a memorandum addressing the calculation of Mr. Cotton's sentence. The trial

court granted Warden Anderson's motion, and Mr. Cotton appealed.

{15} This Court reversed, concluding that the trial court had considered evidence

outside of the petition when granting Warden Anderson's motion. By considering the other

evidence, the trial court had converted Warden Anderson's motion to dismiss into a motion for

summary judgment without informing the parties or allowing Mr. Cotton an opportunity to

respond. See Id. at ¶¶11-12. The matter was remanded for further proceedings. Id. at ¶13.

{16} On remand, Warden Anderson again moved for dismissal, arguing that Mr.

Cotton had failed to comply with R.C. 2969.25. Cotton v. Anderson, 9th Dist_ No. 06CA008984,

2007-Ohio-6548, at ¶3 ("Cotton II"). The trial court agreed and, again, dismissed Mr. Cotton's

petition. W. Cotton appealed, and this Court reversed, noting that W. Cotton had "`appended to

his petition for writ of habeas corpus copies of the relevant committnents[,]"' and, therefore, had

compiied with R.C. 2969.25. Id. at ¶6, quoting Cotton I at ¶3. The matter was again remanded

to the trial court.

55

{¶9} Warden Anderson then moved for summary judgment,. attaching Assistant Chief

Oakley's affidavit. Ihi response to Warden Anderson's mbtion, Mr. Cotton filed a cross-motion

for sununary judgment. Warden Anderson subsequently filed a response. The trial court granted

Warden Anderson's motion for summary judgment and denied Mr. Cotton's motion. Mr. Cotton

appeals the judgment of the trial court.

II.

ASSIGNMENT OF ERROR I

"THE COURT COMMITTED PREJUDICIAL ERROR IN NOT GRANTINGSUMMARY JUDGMENT TO THE APPELLANT[.]"

{18} Mr. Cotton, in his petition for a writ of habeas corpus, raised three grounds for his

writ: that the Department of Rehabilitation illegally calculated his sentence, that the Department

of Rehabilitation illegally "`correct[ed]"' and "interpret[ted]" his sentence, and that the trial

court never made an express finding of guilt. However, Mr. Cotton has not advanced any

argument in his merit brief concerning his third ground for relief.

{19} We review a trial court's awarding summary judgment de novo. Grafton v. Ohio

Edison Co. (1996), 77 Ohio St.3d 102, 105. Pursuant to Civ.R. 56(C), summary judgment is

appropriate when:

"(1) No genuine issue as to any material fact remains to be litigated; (2) themoving party is entitled to judgment as.a matter of law; and (3) it appears fromthe evidence that reasonable minds can come to but one conclusion, and viewingsuch evidence most strongly in favor of the party against whom the motion forsummary judgment is made, that conclusion is adverse to that party." Temple v.

Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.

{110} To succeed on a summary judgment motion, the movant "bears the initial burden

of demonstrating that there are no genuine issues of material fact conoerning an essential element

of the opponent's case." (Emphasis sic). Dresher v. Burt (1996), 75 Ohio St.3d 280, 292. If the

56

4

movant satisfies this burden, the non-moving party "`must set forth specific facts showing that

there is a genuine issue for trial."' Id. at 293, quoting Civ.R. 56(E). However, "as the burden is

upon the moving party to establish the nonexistence of any material factual issues, the lack of a

response by the opposing party cannot, of itself, mandate the granting of summary judgment."

Morris v. Ohio Cas. Ins. Co. (1988), 35 Ohio St.3d 45, 47.

{111} Mr. Cotton does not point to any dispute of material fact, and we find none in this

case. He concedes that, on August 14, 1992, the trial court sentenced him to definite prison

terms of 3 and 8 years and to an indefirute prison term ranging from 55 years and 6 months to

170 years. Mr. Cotton suggests that the Department of Rehabilitation has modified his sentence

and reduced the minimum term to 15 years. However, the Department of Rehabilitation had no

authority to modify his sentence. Furthermore, its reference to 15 years as "the most you can

serve" did not constitute a modification of his sentence. Rather, it simply recognized the effect

of former R.C. 2929.41(E)(2) upon Mr. Cotton's indefinite sentence. See State ex rel. Hamann

v. Ohio Dept. ofRehab. & Corr., 96 Ohio St.3d 72, 2002-Ohio-3528, ¶7 ("[T]he statutory cap in

former R.C. 2929.41(E)(2) is self-executing[.]"). Furthermore, there is no dispute of fact that

Mr. Cotton is continuing to serve his indefinite sentence.

{112} "Habeas corpus is generally appropriate in the criminal context only if the

prisoner is entitled to immediate release from prison." Ridenour v. Randle (2002), 96 Ohio St.3d

90, 2002-Ohio-3606, ¶7. "[A] convicted person has no constitutional right to be conditionally

released prior to the expiration of a valid sentence." State v. Parsons, 9th Dist. No. 22200, 2005-

Ohio-268, at ¶13, quoting Velasquez v. Ghee (1996), 108 Ohio App.3d 409, 411. See, also, State

ex reL Henderson v. Ohio Dept. of Rehab. & Corr. (1998), 81 Ohio St.3d 267, 268 (A defendant

"has no constitutional or statutory right to parole, [and] he has no similar right to earlier

57

5

consideration of parole.") (internal citation omitted). Since Mr. Cotton served his definite

sentences first, he is currently serving his indefinite sentence and is well short of the 170-year

maximum. Accordingly, his valid sentence has not expired, and, therefore, he is not entitled to

imrnediate release from prison. Thus, based on the undisputed evidence before us, Mr. Cotton

was not entitled to a writ of habeas corpus as a matter of law.

{113} The trial. court correctly overruled Nfr. Cotton's motion for summary judgment.

Mr. Cotton's first assignment of error is overruled.

ASSIGNMENT OF ERROR II

"THE COURT COMMITTED PREJUDICAL ERROR AND DENIED THEAPPELLANT DUE PROCESS OF LAW WHEN IT DID NOT GNEPRECLUSIVE EFFECT IN THE JUDGMENT OF THE COURT OFAPPEALS."

ASSIGNMENT OF ERROR III

"THE COURT COMMIMD PREJUDICIAL ERROR AND DENIED THEAPPELLANT DUE PROCESS OF LAW WHEN IT WAS PRECI.iIDED BYTHE DOCTRINE OF THE LAW.OF THE CASE[.]"

{¶14} W. Cotton's second and third assignments of error are related, and we consider

them together. Mr. Cotton argues that the trial court's granting of summary judgment to Warden

Anderson was precluded by res judicata or, in the alternative, by the law-of-the-case doctrine.

We disagree.

{¶15} The doctrine of res judicata provides'that "[a] valid, final judgment rendered upon

the merits bars all subsequent actions based upon any claim arising out, of the transaction or

occurrence that was the subject matter of the previous action." Grava v. Parkman Twp. (1995),

73 Ohio St.3d 379, at syllabus. The law-of-the-case doctrine is similar to res judicata, providing

that "the decision of a reviewing court in a case remains the law of that case on the legal

58

6

questions involved for all subsequent proceedings in the case at both the trial and reviewing

levels." NoZan v. Nolan (1984), 11 Ohio St.3d 1, 3.

{116} Mr. Cotton argues that the trial court erroneously failed to give preclusive effect

to this court's prior decisions, thereby suggesting that this court previously detemiined the matter

before us in this appeal. However, Mr. Cotton's previous appeals solely addressed procedural

issues. In his first appeal, this Court reversed the trial court's dismissal of his petition because it

had considered evidence outside the petition, thus converting the motion to dismiss into a motion

for summary judgment without providing Mr. Cotton an opportunity to respond. In his second

appeal, this Court reversed the trial court's dismissal, which had been based upon a failure to

comply with R.C. 2969.25_ In neither appeal, did this Court consider the merits of Mr. Cotton's

habeas petition and Mr. Cotton has not otherwise demonstrated that the doctrines of res judicata

or law-of-the-case apply to the matter before us. Mr. Cotton's second and third assignments of

error are overrnled.

III.

Mr. Cotton's assignments of error are overruled. The judgment of the Lorain County

Court of Common Pleas is affrrmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this joumal entry shall constitute the mandate, pursuant to App.R 27.

59

7

lmmediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

EVE VFOR

WHITMORE, J.MOORE, J.CONCUR

APPEARANCES:

MILTON COTTON, pro se, Appellant.

E s`LFANCECOURT_-KH

THELMA THOMAS PRICE, Assistant Attomey General, for Appellee.

OF THE QAIG NA Otd'FI EOIN THIS FFF' C6PY

NABNKO`NSKLLOFtiIW^U^ITYHKUF TH£ GO1Rt^DfOoNfMON PI.EAS

.r^^ .^`. 3►^^̂- ^Y

60

COURT OF APPEALS

I HEREBY GE9TIFYTH1S TO E£E A TRUE COPYCF THE GRIGINAF:,QN: FILEtN

JT.••

i" ^^^AIgOM JUDG1vIENTENT . RED IN THECOURT OF COMMON PLEASCOUNTY OF LORAIN, OHIOCASENo. 04CV138081

DECISION AND JOURNAL ENTRY

,

STATE oF OHIOi

COUNTY OF LORAIN

MILTON COTTONi

Appellant jc

))ss:

L IN THE COUR'1^' OF APPEALSTNINTH JUDICiAL DISTRICT

2085 SAP I I A II: Ol

I

C. A. No. 04CA008536

APi'ELLA

CARL ANDERSON, WARDEN .

Appellee

v.

Dated: March 9, 2005

This cause was heard upon the record in the t•ial court. Each error assigned

has been reviewed and the following disposition is made:

CARR, Presiding Judge.

{11} Appellant, Milton Cotton, appeals from the jourrtal entry of the

Lorain County Court of Common Pleas, which disnussed his petition for writ of

habeas corpus. This Court reverses and.retnands.

L

{12} On March 30, 2004, appellant.filed a petition for writ of habeas

corpus, alleging that appellee, Carl Anderson, warden of Grafton Correctional

Institution, was "knowingly implementing an unlawful liberty rPstraint without

jurisdiction to do so[.]" Appellant alleged three grounds in support of his writ, to

NA@ANOWSYC LbPAiN GCUNTY..RK bf THECOHftTAE CQNIM4N PLEAS

tIF^-

,,

t^f71^-,^,l̂.,

' ./^ // I ,":,CEPUN

Courtof Appeals of Ohio. Ninth Judicial District

376

(:AisFENDIX B)

2

wit: (1) that he is illegally imprisoned and restrained, because appellee calculated

and imposed a sentence upon appellant for his crimes in the amount of 64 1/2 to

210 years for his indefinite sentences; (2) that he is illegally imprisoned and

restrained, because appellee "corrected" sentencing errors by imposing appellee's

interpretation of a proper term of sentence; and (3) that he is illegaYly imprisoned

and restrained, because the trial court had no authority to impose prison sentences

in case numbers CR-259650 and CR-281730, since the trial court did not find

appellant guilty of any crimes in regard to those cases.

{13} Appellant appended to his petition for writ of habeas corpus copies

of the relevant commitments. In addition, appellant aFpended to his writ affidavits

as to prior actions and his indigetacy,

{14} Pursuant to a journal entry filed June 14, 1991, appellant was

sentenced after conviction in case number CR-257742 to one and one-half years

for the crime of grand theft motor vehicle, in violation of R.C. 2913.02; to one

year for the crime of failure to comply with order or signal of police officer, in

violation of R.C. 2921.331; and to one year for the crime of possession of crinunal

tools, in violation of R.C. 2923.24, each term to be served consecutiveiy. Pursuant

to journal entry filed June 17, 1991, appellant was sentenced after conviction to

two to ten years, indefinite, for the crime of receiving stolen property, which term

was to be served consecutively with the sentence ordered in case number CR-

257742.

Court of Appeals of Ohio, Ninth Judicial District

377

3

(qS} Pursuant to a certified copy. of sentence, on August 14, 1992,

appell4nt was sentenced after conviction in case number CR-281731 to six months

for th^ crime of attempted theft, in violation of R.C. 2923.02 and 2913.02.

Finally, pursuant to a certified copy of sentence, on August 14, 1992, appellant

was sentenced after conviction in case number CR-281730 to four to ten years,

indefinite, on each of five counts of receiving stolen property, in violation of R.C.

2913.51; to one-and-a-half to five years, indefinite, on each of two counts of

concealing identity of motor vehicle, in violation of R.C. 4549.62; to one-and-a-

half to five years, indefinite, on each of four counts of possession of criniinal

tools, in violation of R.C. 2923.24; to four years, definite, on each of two counts of

title law violation, in violation of R.C. 4505.19; to five to twenty-five years with

five years actual time for the crime of drug trafficking, in violation of R.C.

2925.03; to four to ten years, indefinite, on each of two counts of receiving stolen

property, in violation of R.C. 2913.51, plus three years on two firearm

specifications; to seven to twenty-five years with seven years actual time for the

crime of drug trafficking, in violation of R.C. 2925.03; to five to fifteen years,

indefinite, for the crime of drug trafficking; in violation of R.C. 2925.03; and to

one-and-a-half to five years for the crime of having weapons while under

disability, in violation of R.C. 2923.13, plus three years on a specification.

Appellant was to serve time on the three specifications prior to the remaining

terms, but concurrent with one another. Appellant's remaining terms were to be

Court of Appeals of Ohio. Ninth Judicial District613

o 7 $

4

Iserved consecutively. In sum, appellant was sentenced in case number CR-

281730 to servC three years on his specifications, then eight years on the definite

sentences, followed by a minimum of 55 1/2 to a maximum of ;170 years on the

indefinite sentences.

{16} Effective August 21, 1992, appellee calculated appellant's total

aggregate sentence as three yeais on the gun specifications, consecutive with eight

years definite time, consecutive with a minimum of 64 'h.. to a maximum of 210

years on the indefinite sentences.

{17} By intecoffice communication dated August 17, 1993, from

appellee's corrections records manager to appellant, appel:ee informed appellant

regarding his first parole hearing date and calculation of sentence. Appeliee's

agent inforined appellant that his sentence started on August 21, 1992, with 75

days jail credit. The interoffice communication further informed appellant that he

must serve all three years on his specification sentence; five years, seven months,

and six days on his definite eight-year sentence; and ten years and six months on

the fifteen-year sentence for the 55 '/z-year indefinite sentence. The

communication expressly stated that "15 yrs. is the most you can serve on for the

55 'h yrs." Based on appellee's calculation of appellant's sentence and

infoimation regarding the time he was required to serve, appellant filed his

petition for writ of habeas corpus.

Court of Appeals of Ohio, Ninth Judicial Distcict

3 7:t

i{18} In lieu of an answer, appellee filed a motion to dismiss and amended

motibn to dismiss the petition for failure to state a claim upon which relief can be

granted. In support, appellee appended an affidavit of Mary Oakley, Assistant

Chief of Bureau of Sentence Computation, as well as a memorandum addressing

the calculation of appellant's sentence. Ms. Oakley's memoranduni clarified

appellant's minimum and maximum sentence out of case number CR-281730.

The memorandum delineated the expiration dates of appellant's specification and

definite sentences. Further, Ms. Oakley's. memorandum clarified that appellant's

minimum indefinite-term sentence in case number CR-281730 was relevant for

determination of appellant's initial parole hearirg date only. The memorandum

noted that appellant's sentences in other cases had been aggregated and that his

maximum expiration of sentence is March 20, 2194.

(19) . On May 19, 2004, the trial court granted appellee's motion to

dismiss and dismissed appellant's petition for writ of habeas corpus. It is clear

from the recitation of facts in the trial court's joumal entry that the court adopted

and relied on the information contained in Ms. Oakley's memorandum. Appellant

subsequently moved the trial court for relief from judgment and to amend the .

judgment entry. The trial court denied the motions without analysis. Appellant

timely appeals, setting forth one assignment of error for review.

Coun of Appeals of Ohio, Ninth Judicial District

:i3i1

6

U.

ASSIGNMENT OF:ERROR

"THE TRIAL COURT DENIED APPELLANT THE RIGHT TOTRIAL AI?TD THE RIGHT TO DUE PROCESS OF LAW ASGUARANTEED BY THE SIXTkI AND FOURTEENTHAMENDMENTS TO T.HE UNITED STATES CONSTITUTIONAND ARTICLE I OF THE OHIO CONSTITUTION, WHEN ITABUSED ITS DISCRETION VJHEN IT DENIED HIS HABEASCORPUS COMPLAINT WITHOUT EVEN GIVING APPELLANTTHE OPPORTUNITY TO PRESENT EVIDENCE IN SUPPORTOF THE HABEAS CORPUS."

{110} Appeliant argues that the tri'al court erred by granting appellee's

motion to dismiss; when the trial court addressed the motion to dismiss as a

motion for sununary judgment, considering evidence aud materials outside the

complaint, without'notice to appellant. This Court agrees.

{i1i} This Court reviews de novo a trial court's decision to grant a motion

to disntiss. Niepsuj v. Summa Health System, 9th Dist. Nos. 21557, 21559, 2004-

Ohie-115, at 15. A trial court may grant a motion to dismiss for failure to state a

claim upon which relief can be granted pursuant to Civ.R. 12(B)(6) only if it

appears beyond a doubt that the petitioner can prove no set of facts which •xo.uld

entitle him to relief. Garvey v. Clevidence, 9th Dist. No. 22143, 2004-Ohio-6536,

at q11. In considering a Civ.R. 12(B)(6) motion to dismiss, the trial court must

review only the complaint, accepting all factual allegations as true and making

every reasonable inference in favor of the nonmoving party. Id. The trial court

may not, however, rely upon any materials or evidence outside the complaint in

Court of Appeals of Ohio, Ninth Judicial District

a A1

considering a motion to dismiss. State ex rel. Fuqua v. Alexander (1997), 79 Ohio

SOd 206, 207. Where the trial court chooses to consider evidence or materials

ouitside the complaint, the court must convert the motion to disiniss into a motion

for summary judgment and give the parties notice and a reasonable opportunity to

present all materials made pertinent to such motion by Civ.R. 56. Civ:R. 12(B);

State ex rel. The V. Cos. v. Marshall ( 1998), 81 Ohio St.3d 467, 470.

{112} In this case, the trial court did not give the parties notice of its intent

to convert appellee's motion to diisnuss into a motion for summary judgment. In

fact, in its journal entry, the trial court disposed of the matter by granting

appellee's rnotion to dismiss, not a converb>d motion for summary judgment.

However, the trial court clearly relied on evidence and materials outside

appellant's petition. The trial court reiterated as fact information adduced only

from Mary Oakley's memorandum, appended to appellee's motion to dismiss.

Further, appellee concedes in his brief that the "Lorain County Court of Common

Pleas found the facts to be as outlined by the Respondent in the Motion to

Dismiss:" Under the circumstances, the trial court erred by considering evidence

and materials outside appellant's petition in disposing appellee's motion to

dismiss. The trial court did not notify the parties that it was converting the motion

to dismiss into a motion for suntmary judgment and could not, therefore, consider

any evidence outside the petition. This Court finds that the trial court, therefore,

Court of Appeals of ohio: Ninth Judicial Distcict(^ 7

s8?

improperly dismissed appellant's petition for writ of habeas corpus. Appellant's.

sole assignment of error is sustained.

III.

{113} Appellant's assignment of error is sustained. Accordingly, the

judgment of the Lorain County Court of Common Pleas is reversed and the cause

remanded to. the trial court for proceedings consistent with this opinion.

Judgment reversedand cause remanded.

The Court finds that there were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court

of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into

execution. A certified copy of this journal entry shall constitute the mandate,

pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the

journal entry of judgment, and it shall be file stamped by the Clerk of the Court of

Appeals at which time . the period for review shall begin to run. App.R. 22(E).

The Clerk of the Court of Appeals is instructed to mail a notice of entry of this

judgment to the parties and to make a notation of the mailing in the docket,

pursuant to App.R. 30.

Coun of Appeals of Ohio. Ninth Judicial pIhstrict . . fQ ^

)O-^

Costs taxed to appellee.

Exceptions.

9

DONNAJ.CARRFOR THE COURT

BATCHELDER, J.BAIRt3, JCONCUR

(Baird, J., retired, of the Ninth District Court of Appeals, sitting by assignmentpursuattt to, §6(C), Article IV, Constitution.)

APPEARANCES:

MILTON COTTON, INMATE # A-234-31^,, 2500 S. Avon-Belden Road,Grafton; Ohio, Grafton, Ohio, 440Ek1, appellant.

THELMA THOMAS PRICE, Assistant Attorney General, Corrections Litigation,150 East Gay Street, 16t' Floor, Columbus, Ohio 43215;. for appellee.

Court of Appeala of Ohio. Ninth Judicial District

181

LORAIN COUNTY COURT OF COMMON PLEASLORAIN COUNTY, OHIO

RON NABAKOWSKI, ClerkJOURNAL ENTRY

Christopher R. Rothgery, Judge

Date 2/4/08 Case No. 04CV138081

MILTONCOTTON MILTON C PRO SEPlaintiff . ^ . . PiaintifPs Attorney

vs

CARL ANDERSON THELMA T PRICEDefendant Defendant's Attorney

Respondent having filed his Motion for Summary Judgment on 01/31108;Petitioner granted until 03/14/08 to file a Response; Respondent granted until 03/31/08to file a Reply.

VOL PAGE

cc: AAG Thelma PriceMilton Cotton (Pro Se) A234-317

7o.

11,111,111, 1111, 111, (A'PPENDZX C)

CERTIFIED COPY OF SENTENCERevised Code Secs. 2949.12 - 2947.09 - 2947.23

At a term of the Court of Common Pleas, begun and held at the Court House in CLEVELAND

within and fosthe County of CUYAHOGA and State of Ohio, on the _ I day of

^ v

Present, the Hon. Sj J^' Judge.

In the Record and Proceedigjngf Eyd CoW^Ct^apAffieWhff)^Regg ot$ef things, is the following

Judgment and Sentence,to-wit: 4549.62 CONC IDENT OF MV W/SF'ECS 02

2923.24 POSS CRIM. TOOLS W/SPECS 04

Indictment for 4505.19 TITLE LAW VIOLATION 022925.03A1 DRG TRFF W/SCHOOL YRD SPC 032913.51 REC. STOL. PROP. W/SFECS 012923.13 HAYE WEP UNDR DIS W/SPECS 01

CXDK 281730 0018015 COTTON MILTON DOB-11/11/54 MALE BLACIC

PROSECUTOR, ATTORNEY AND DEFENDANT IN COURT. NOW COMES THE JURY W/VERDICTOF GUILTY TO RSP MV 2913.51, AS CHGD. CTS 1-2-8-15-16; CONCEALING MV ID,RC 4549.62, CTS 3,9; PCT 2923.24, CTS 4-7-10-19; TITLE LAW VIO RC 4505.19 AMEN-DED CTS 5.11; DRUG TRAFFICK 2925.03 CTS 6-1.7-18 W/SCHOOLYARD SPEC; RSP MV RC 2913.51, W/FIREARM SPEC CT 12; RSP FIREARM W/FIREARM SPEC CT 13; HWUD RC 2923.13CT 20. DEFT INFORMED OF JURY'S VERDICT AND THE COURT INQUIRED IF HE HAD ANYTHING TO SAY WHY JUDGM SHOULD NOT BE PRONOUNCED:DEFT. SENT. TO LCI 4-10 YRS CTS 1,2,8,15,16; 1-1/2-5 YRS CTS 3,4,7,9,10,19; 4 YRS DEFINITE ON EACH OF CTS 5,11('DEFINITE) 5-25 YEARS W/5 YRS ACTUAL CT 6 W/MAND $10,000. FINE; 4-10YRS CT 12+ 3 YRS ON FIREARM SPEC SERVED PRIOR TO AND CONSECUTiVELY TO SENT; 4-10 YRS CT13 PLUS 3.YRS ON FIREARM SPEC SERVED PRIOR TO AND CONSECUTIVE TO SENTENCE; 7-25 YRS CT 17 W/7 YRS ACTUAL AND $15,000. MANDATORY FINE; 5-15 YRS CT 18 W/$10,000.00 MAND. FINE; 1-1/2-5YRS CT 20+3 YRS MAND., SERVED PRIOR TO AND CONSECUTIVETO SENTENCE. ALL COUNTS TO BE SERVED CONSECUTIVELY, BUT THE 3 YR FIREARM SPECSIN CTS 12,13 AND 20 ARE TO RUN CONCIJRRENT W/EACH OTHER. PAY COSTS. DEFENDANT

ADVISED OF HIS APPEAL RIGHTS AND IS FOUND TO BE INDIGENT. COURT APPOINTS ATTORNEY PAUL MANCINO AS COUNSEL FOR APPEAL PURPOSES AND ORDERS TRANSCRIPT AT STATE'S

EXPENSE...BC 0B/18/92 15:33

JUDGE: 305-ANTHONY 0 CALABRESE JR.

I CERTIFY the above to be a true copy of said Judgment and Sentence.

Given under my hand and the seal of said Court, this

day of

q

NO 2 g 19§2`7d

n-Ap (#PPENDIX D)