{¶ 3} After the imposition of this last sentence, Petitioner was sent two (2) notices informing him that he was entitled to a mitigation hearing under Kellogg v. Shoemaker (S.D. Ohio E.D. 1996),
{¶ 4} Petitioner successfully appealed his 2000 conviction and sentence, which was reversed and remanded on September 20, 2001. The matter was retried, and on May 1, 2002 Petitioner was again convicted and sentenced to six (6) years to run concurrent with his previous sentences. This decision was affirmed on appeal by the Eighth District Court of Appeals. Petitioner filed a Notice of Appeal and a Motion for a Delayed Appeal with the Supreme Court on January 5, 2004.
{¶ 5} On January 5, 2004 Petitioner also filed this petition for habeas corpus. The gist of Petitioner's argument as to why he is being unlawfully held is as follows: first, he claims that because the first and second convictions, cases 188454 and 239340 were not explicitly ordered to be run consecutively, the terms of incarceration ran concurrently. Next, Petitioner asserts that his parole was never revoked again when he was re-sentenced for the latest offense in May of 2002. Finally, Petitioner argues that when he was sentenced to a term of six (6) years in the most recent case, case number 390487, because the term was slated to run concurrent to the older sentences in cases 188454 and 239340, for which he had already served more than six (6) years total for those cases (which he claims were run concurrently), the sentence for the most recent conviction, 390487, was "retroactively served" and thus has already expired. Each of these contentions will be addressed separately below.
{¶ 7} The Supreme Court has denied belated attempts to file documents required by R.C.
{¶ 8} Next, Respondent alleges that Petitioner failed to exhaust institutional grievance processes available to him prior to filing this action. Respondent claims that "Petitioner's claim of an incorrect sentence calculation is subject to the grievance system at his institution." However, Petitioner is not simply claiming that his sentence was improperly calculated, a claim that is addressable on direct appeal or by post conviction relief and thus not cognizable in a petition for habeas corpus. SeeHeddleston v. Mack (1998),
{¶ 9} Next we will review Petitioner's basis for his complaint. First Petitioner argues that his first two (2) sentences were to run concurrent. Petitioner contends that because the second journal entry did not explicitly order the second sentence to run consecutive to the first, it must be construed as running concurrent. To support this argument, Petitioner looks to Hamilton v. Adkins (1983),
{¶ 10} However, former R.C.
{¶ 11} Petitioner also contends that his parole was never revoked after his third and most recent conviction. Petitioner specifically states that following the August 8, 2000 conviction and, after that sentence was reversed and the offense retried, following the May 1, 2000 reconviction, the Adult Parole Authority failed to provide Petitioner with a notice of alleged parole violations, failed to conduct a revocation hearing to determine if there was cause to revoke parole, and failed to provide Petitioner an opportunity to present evidence in a mitigation hearing. Thus, he reasons, his parole was never revoked.
{¶ 12} Petitioner looks to the protections provided byMorrissey v. Brewer (1972),
{¶ 13} The court in Morrissey went on to further state, "Obviously a parolee cannot relitigate issues determined against him in other forums, as in the situation presented when the revocation is based on conviction of another crime." Id. at 490. To this extent, the Sixth Circuit in Kellogg v. Shoemaker,
{¶ 14} Yet the court also determined that to apply the holding in Kellogg to persons convicted of a first offense prior to September 1, 19922 would be a violation of the ex post facto clause. Consequently, those parolees who committed their first crime, the crime for which they are on parole, prior to September 1, 1992 are still entitled to a parole revocation hearing subsequent to being convicted of a crime as dictated by the "old" Ohio Adult Parole Authority provision. Kellogg,
{¶ 15} As was previously stated, Petitioner contends that he was not afforded any of these rights after the 2000 conviction or after the 2002 retrial. However, Respondent has produced documents indicating otherwise. Attached to Respondent's motion are documents labeled exhibits K, L and M, which are, respectively: K) a letter dated September 25, 2000 giving notice of a mitigation hearing "under the Kellogg consent decree" set for October 10, 2000 and explaining Petitioner's various rights therein; L) a letter dated October 11, 2000 giving notice of the mitigation hearing, which was re-set for October 18, 2000 and again explaining Petitioner's various rights; and M) a form titled "WAIVER OF KELLOGG MITIGATION HEARING," signed by Petitioner and dated October 18, 2000. Thus, it is clear that Petitioner was indeed provided with notice of his right to a hearing in 2000, and in fact waived that right.
{¶ 16} The question remains, however, whether this revocation and notice thereof withstood the reversal, retrial, and reconviction in 2002. The case sub judice is analogous to Flenoyv. Ohio Adult Parole Auth. (1990),
{¶ 17} In 1988, Flenoy was granted federal habeas corpus relief from his murder conviction. Still in jail after this decision, Flenoy was retried for the murder and was subsequently reconvicted and sentenced to fifteen (15) years to life again. Contemporaneous to the new trial, Flenoy had filed writs of mandamus and habeas corpus in the state court, arguing that the grant of habeas corpus relief "fatally undercut the parole revocation stemming from that conviction" and thus required the Adult Parole Authority to either provide another parole revocation hearing or release him. Id. at 132. The Supreme Court rejected the argument of the Adult Parole Authority that Flenoy's reconviction disposed of any concerns regarding revocation of parole under the overturned conviction, saying:
{¶ 18} "We agree that Flenoy's reconviction made a revocation hearing unnecessary. See Ohio Adm. Code
{¶ 19} As a result of the failure to grant Flenoy a hearing after he was granted habeas corpus relief, the Supreme Court held that if his parole was improperly revoked, he was entitled to a credit of eight and one half months against his sentence from the murder conviction, or the period of time that passed between the grant of habeas corpus relief and the reconviction, the time during which he was held without cause. See Flenoy, 56 Ohio St.3d at FN 1. In light of this, Petitioner should be credited 177 days, from accounting for the time not already credited that passed between reversal and reconviction.3
{¶ 20} As to Petitioner's claim that because his six (6) year sentence was retroactively served because it was set concurrent to a sentence for which more than six (6) years were already served, this is simply a misunderstanding about what concurrent means. Petitioner seems to argue that concurrent means time served for one sentence can be applied against another. For example, under Petitioner's understanding, a person could be serving a ten (10) year sentence, sentenced to a concurrent ten (10) year sentence after he has served nine and a half (9 1/2) years of the first sentence, and only have to serve the remaining six (6) months to complete both sentences. Such a result would be unjust.
{¶ 21} Concurrent sentences are defined as "Two or more sentences of jail time to be served simultaneously." Black's Law Dictionary (7 Ed. 1999) 1367. In other words, a person need not finish serving the first sentence before the time for the second sentence can be served, as is the case with consecutive sentences. For example, in the hypothetical situation above, the person could begin serving the second ten (10) year term upon sentencing rather than having to wait the six (6) months for the first term to expire.
{¶ 22} Therefore, when Petitioner was sentenced to six (6) years concurrent to his prior sentences, the sentences were not nullified upon imposition. Rather, he could begin serving the six (6) years immediately and not have to wait until the previous two (2) sentences have expired to serve the third. If the intent were otherwise, the court would have given him credit for time-served on the earlier offenses.
{¶ 23} This does not complete the inquiry, however, as the issue remains that parole has yet to be revoked since the reversal of the first conviction. The Supreme Court has addressed the issues presented in this scenario, stating,
{¶ 24} "A court should apply a two-part test in determining whether the delay of the Adult Parole Authority, in not commencing a final parole revocation hearing, entitles an alleged parole violator to habeas corpus relief. First, it must be determined whether the delay was unreasonable. * * * Second, if the delay is found to be unreasonable, it must be determined whether the delay somehow prejudiced the alleged parole violator. The court must weigh any prejudice to the alleged parole violator in light of the interests protected by the `reasonable time' requirement of R.C.
{¶ 25} The court further instructed as to how the first factor, the reasonableness factor, may be determined by balancing three (3) factors, which are: 1) the length of the delay, 2) the reason for the delay, and 3) the alleged parole violator's assertion of the right to a hearing within a reasonable time. Id.
{¶ 26} In calculating the first factor, the delay in holding a hearing, this court looks to State ex rel. Taylor v. OhioAdult Parole Authority, wherein the following was stated that "[n]either due process of law nor R.C.
{¶ 27} The second factor, the reason for the delay, cannot be determined by this court, as no reason is put forth. As this court is not aware of what caused this delay, this factor may be assumed to weigh in favor of Petitioner. The third factor the alleged parole violator's assertion to the right to a hearing. This third factor weighs in favor of Respondent, for although Petitioner claims to have made multiple requests for a mitigation hearing after the reconviction, there is nothing in the record to corroborate this claim. Thus the first assertion of the right to a hearing this court is aware of is the present writ, filed over a year and a half after the reconviction.
{¶ 28} Taking the above stated factors regarding the reasonableness of the Adult Parole Authority into consideration, this court must next balance that reasonableness with the prejudice that the delay imposed upon the defendant. Coleman,
{¶ 29} In applying these factors to the present case, it appears that the over six (6) months of incarceration while awaiting retrial without having parole properly revoked was oppressive. Regarding the second factor, there is no readily ascertainable fact to support the notion that the incarceration would have caused Petitioner excessive anxiety. Having been in prison for nearly all of the past decade and a half, this was not Petitioner's first exposure to prison. His conviction was not overturned on a substantive matter or a question of evidence, but on an issue regarding proper waiver of counsel procedures. He failed to request relief in this intervening time frame. Thus, there is no reason to believe that this time has caused excessive anxiety to Petitioner. Finally, evaluating the third factor, there is nothing to indicate that the intervening time period spent in prison impaired his defense at a hearing, as Petitioner waived the hearing after the first trial and has not indicated to this court that any defense, evidence, or witness has been lost or compromised since the original waiver was executed.
{¶ 30} Thus, despite oppressive incarceration for the time between reversal and reconviction, the weight of the facts before this court indicates that the Adult Parole Authority has not forfeited the right to immediately hold a final revocation hearing for Petitioner. However, once parole is formally revoked, Petitioner's sentence in the first two convictions should be credited against the time served in the interim, as the current six (6) year sentence was set to run concurrent with those two (2) already in existence at the time of the May 2002 sentencing.
{¶ 31} The petition for writ of habeas corpus is dismissed. However, as noted above, Petitioner is entitled to a timely hearing regarding the revocation of his parole.
{¶ 32} Costs taxed against Petitioner. Final order. Clerk to serve notice as provided by the civil rules.
Petition dismissed.
Waite, P.J., Donofrio and Vukovich, JJ., concur.