×
You have 2 more free articles available this month. Subscribe today.
Ohio Appeals Court Upholds $7,820 Award for 70 Days Unlawful Incarceration
By Robert H. Woodman
The Tenth District Court of Appeals of Ohio upheld a $7,820 damages award by the Ohio Court of Claims to Alton M. Stroud, a prisoner of the Ohio Department of Rehabilitation and Correction (DORC). In its 2-1 decision, the appeals court found that DORC “may be found liable for the tort of false imprisonment” if it knowingly confines a prisoner beyond his mandatory release date. Further, the Tenth District found that DORC was collaterally estopped from litigating the issue of whether Stroud was falsely imprisoned.
Stroud was sentenced to a ten-month federal term of incarceration on April 10, 1998 for violating his supervised release. On May 14, 1998, before being sent to federal prison, he pled guilty in the Franklin County Court of Common Pleas to a state charge of second degree burglary and was sentenced to two years imprisonment with 50 days of jail time credit. The trial judge did not specify whether the sentence was to be served concurrently or consecutively to the federal prison term. Stroud remained in jail until June 2, 1998, then went to federal prison to serve that sentence. He was returned to Franklin County Jail on January 20, 1999, and entered DORC custody on February 26, 1999.
Stroud began filing repeated motions for jail time credit with the trial court. The court eventually granted him an additional 58 days of jail time credit. Stroud also argued that he was entitled to credit for his time spent in federal prison; however, the court refused to grant him this credit. On January 27, 2000, Stroud filed a petition for writ of habeas corpus with the Ohio Fourth District Court of Appeals claiming unlawful incarceration. Stroud argued that the trial judge did not specify whether his sentence was to be served concurrently or consecutively; consequently, under Ohio Revised Code (ORC) § 2929.41(A) and Ohio Administrative Code (OAC) § 5120-2-03 as they existed when he was sentenced for his state felony, Stroud’s sentence, by default, was to be served concurrently with his federal sentence. The Fourth District agreed with Stroud and ordered his immediate release on the writ. See: Stroud v. Lazaroff (June 1, 2000), Pickaway App. No. 00 CA 09 (unpublished). Stroud left prison on June 2, 2000. DORC did not appeal the writ.
On January 26, 2001, Stroud filed a complaint in the Court of Claims charging DORC with false imprisonment from January 27, 2000, until June 2, 2000. He sought $15,900 in compensatory damages, costs, and legal and equitable relief. Both Stroud and DORC moved for summary judgment. Both motions were initially denied, but the court later vacated its order and granted summary judgment to Stroud, awarding him $7,820. DORC appealed claiming that it was compelled to abide by the trial court’s orders denying the additional jail time credit, and, therefore, did not unlawfully imprison Stroud and that it was not subject to the tort of false imprisonment.
The Tenth District held, first, citing case precedent, that DORC had an independent, affirmative duty to correctly calculate Stroud’s release date and to release him on January 27, 2000, because O.R.C. §2929.41(A) and O.A.C. §5120-2-03 are self-executing. Second, the appeals court held that DORC could not relitigate whether Stroud was illegally held. That issue was decided in the writ of habeas corpus and could not now be raised. Third, the court found that DORC was liable for a false imprisonment tort because (a) it had an independent, affirmative duty to release Stroud, (b) it intentionally held Stroud well past his release date, and (c) no intervening justification excused DORC’s action. Thus, summary judgment was appropriate.
The Court of Claims grant of summary judgment to Alton Stroud and the award of $7,820 in damages were affirmed. This case is published only in online formats. See: Stroud v. Department of Rehabilitation and Correction, 2004 Ohio 580, 2004 Ohio App. LEXIS 541 (10th App. Dist.2004).
The Tenth District Court of Appeals of Ohio upheld a $7,820 damages award by the Ohio Court of Claims to Alton M. Stroud, a prisoner of the Ohio Department of Rehabilitation and Correction (DORC). In its 2-1 decision, the appeals court found that DORC “may be found liable for the tort of false imprisonment” if it knowingly confines a prisoner beyond his mandatory release date. Further, the Tenth District found that DORC was collaterally estopped from litigating the issue of whether Stroud was falsely imprisoned.
Stroud was sentenced to a ten-month federal term of incarceration on April 10, 1998 for violating his supervised release. On May 14, 1998, before being sent to federal prison, he pled guilty in the Franklin County Court of Common Pleas to a state charge of second degree burglary and was sentenced to two years imprisonment with 50 days of jail time credit. The trial judge did not specify whether the sentence was to be served concurrently or consecutively to the federal prison term. Stroud remained in jail until June 2, 1998, then went to federal prison to serve that sentence. He was returned to Franklin County Jail on January 20, 1999, and entered DORC custody on February 26, 1999.
Stroud began filing repeated motions for jail time credit with the trial court. The court eventually granted him an additional 58 days of jail time credit. Stroud also argued that he was entitled to credit for his time spent in federal prison; however, the court refused to grant him this credit. On January 27, 2000, Stroud filed a petition for writ of habeas corpus with the Ohio Fourth District Court of Appeals claiming unlawful incarceration. Stroud argued that the trial judge did not specify whether his sentence was to be served concurrently or consecutively; consequently, under Ohio Revised Code (ORC) § 2929.41(A) and Ohio Administrative Code (OAC) § 5120-2-03 as they existed when he was sentenced for his state felony, Stroud’s sentence, by default, was to be served concurrently with his federal sentence. The Fourth District agreed with Stroud and ordered his immediate release on the writ. See: Stroud v. Lazaroff (June 1, 2000), Pickaway App. No. 00 CA 09 (unpublished). Stroud left prison on June 2, 2000. DORC did not appeal the writ.
On January 26, 2001, Stroud filed a complaint in the Court of Claims charging DORC with false imprisonment from January 27, 2000, until June 2, 2000. He sought $15,900 in compensatory damages, costs, and legal and equitable relief. Both Stroud and DORC moved for summary judgment. Both motions were initially denied, but the court later vacated its order and granted summary judgment to Stroud, awarding him $7,820. DORC appealed claiming that it was compelled to abide by the trial court’s orders denying the additional jail time credit, and, therefore, did not unlawfully imprison Stroud and that it was not subject to the tort of false imprisonment.
The Tenth District held, first, citing case precedent, that DORC had an independent, affirmative duty to correctly calculate Stroud’s release date and to release him on January 27, 2000, because O.R.C. §2929.41(A) and O.A.C. §5120-2-03 are self-executing. Second, the appeals court held that DORC could not relitigate whether Stroud was illegally held. That issue was decided in the writ of habeas corpus and could not now be raised. Third, the court found that DORC was liable for a false imprisonment tort because (a) it had an independent, affirmative duty to release Stroud, (b) it intentionally held Stroud well past his release date, and (c) no intervening justification excused DORC’s action. Thus, summary judgment was appropriate.
The Court of Claims grant of summary judgment to Alton Stroud and the award of $7,820 in damages were affirmed. This case is published only in online formats. See: Stroud v. Department of Rehabilitation and Correction, 2004 Ohio 580, 2004 Ohio App. LEXIS 541 (10th App. Dist.2004).
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login
Related legal case
Stroud v. Department of Rehabilitation and Correct
| Year | 2004 |
|---|---|
| Cite | 2004 Ohio 580, 2004 Ohio App. LEXIS 541 (10th Dist |
| Level | State Court of Appeals |
| Conclusion | Bench Verdict |
| Attorney Fees | 0 |
| Damages | 7820 |
| Injunction Status | N/A |
R.C. 2929.41 provides, in pertinent part:
"(A) * * * a sentence of imprisonment shall be served concurrently with any other sentence of imprisonment imposed by a court of this state, another state, or the United States. * * * "
Here, in its May 1998 Entry, the Franklin County Court of Common Pleas sentenced Stroud to two years, a month after the ten month sentence imposed by the federal court on April 10, 1998. Therefore, pursuant to the language of R.C. 2929.41, Stroud's term "shall be served concurrently."
* * *
Upon consideration, this court finds that Stroud's sentence of two years has expired, that he is being held unlawfully, that he has no adequate remedy at law and is entitled to the Writ of Habeas Corpus he requested. * * *
{ 21} "Collateral estoppel (issue preclusion) prevents parties or their privies from relitigating facts and issues in a subsequent suit that were fully litigated in a prior suit." Thompson v. Wing (1994), 70 Ohio St.3d 176, 183, 637 N.E.2d 917. "Collateral estoppel applies when the fact or issue (1) was actually and directly litigated in the prior action, (2) was passed upon and determined by a court of competent jurisdiction, and (3) when the party against whom collateral estoppel is asserted was a party in privity with a party to the prior action." Id. at 183, 637 N.E.2d 917, citing Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, 254 N.E.2d 10, paragraph two of the syllabus. Moreover, "[a]s a general matter, privity is 'merely a word used to say that the relationship between the one who is party on the record and another is close enough to include that other within the res judicata.' " Thompson, at 184, 637 N.E.2d 917, quoting Bruszewski v. United States (C.A.3, 1950), 181 F.2d 419, 423 (Goodrich, J., concurring).
*4 { 22} Here, R.C. 5120.05 [FN6] authorizes DRC to maintain, operate, manage, and govern state correctional institutions. Therefore, based on this authority, we find DRC's relationship to Alan Lazaroff, Warden of the Orient Correctional Institution of Pickaway County, Ohio, at the time Stroud petitioned for a writ of habeas corpus, is close enough to conclude DRC is bound by the determination of the Stroud I court wherein the court concluded Stroud's state sentence was to be served concurrently with Stroud's ten-month federal sentence and Stroud was unlawfully held.
FN6. R.C. 5120.05, effective March 17, 1998, in pertinent part, provides that "[t]he department or rehabilitation and correction may maintain, operate, manage, and govern all state institutions for the custody, control, training, and rehabilitation of persons convicted of crime and sentenced to correctional institutions."
Prior to March, 17, 1998, former R.C. 5120.05, effective October 6, 1994, in pertinent part, provided: "Except as otherwise provided as to appointments by chiefs of divisions, the director of rehabilitation and correction shall appoint the employees that are necessary for the efficient conduct of the department of rehabilitation and correction and shall prescribe their titles and duties. The department may maintain, operate, manage, and govern all state institutions for the custody, control, training, and rehabilitation of persons convicted of crime and sentenced to correctional institutions."
{ 23} Consequently, because the issue of whether Stroud was unlawfully held (1) was actually and directly litigated in a prior suit, (2) was passed upon and previously determined by a court of competent jurisdiction, and (3) because we have concluded DRC is in privity with Lazaroff, the party to the prior action in Stroud I, supra, we conclude DRC in this appeal is collaterally estopped from relitigating the issue of whether Stroud was unlawfully held.
{ 24} Therefore, the matter then resolves to a determination whether DRC is liable for the tort of false imprisonment.
{ 25} "False imprisonment occurs when a person confines another intentionally ' "without lawful privilege and against his consent within a limited area for any appreciable time, however short." ' " Bennett v. Ohio Dept. of Rehab. & Corr. (1991), 60 Ohio St.3d 107, 109, 573 N.E.2d 633, quoting Feliciano v. Kreiger (1977), 50 Ohio St.2d 69, 71, 362 N.E.2d 646, quoting 1 Harper & James, The Law of Torts (1956) 226, Section 3.7. Moreover, " 'each day's continuance of the body of a person in custody, is a distinct trespass, and may be treated as such.' " Bennett, at 109, quoting State ex rel. Kemper v. Beecher (1847), 16 Ohio 358, 363.
{ 26} "In the absence of an intervening justification, a person may be found liable for the tort of false imprisonment if he or she intentionally continues to confine another despite knowledge that the privilege initially justifying that confinement no longer exists." Bennett, at paragraph one of the syllabus. Moreover, "[p]ursuant to R.C. 2743.02(A)(1), the state may be held liable for the false imprisonment of its prisoners." Bennett, at paragraph two of the syllabus. But, see, id., at 110 (finding in Bennett that the court had "no occasion herein to determine whether there is a cause of action for an official's negligent failure to follow the law in releasing a prisoner").
{ 27} Relying on this court's decision in State ex rel. Corder (1991), 68 Ohio App.3d 567, 589 N.E.2d 113, motion to certify overruled, 62 Ohio St.3d 1484, 581 N.E.2d 1391, DRC maintains it was required to continue to hold Stroud pursuant to orders from the common pleas court. See, e.g., Corder, at 573, 589 N.E.2d 113 ("[t]here is simply no statutory provision conferring a right upon the Adult Parole Authority to ignore the trial court determination of the number of days and to substitute its own in complying with the mandate of R.C. 2967.191").
*5 { 28} However, Corder is distinguishable from the present case because in Corder this court construed former R.C. 2967.191, not R.C. 2929.41(A).
{ 29} In this case, former R.C. 2929.41(A), in effect at the time the common pleas court sentenced Stroud, provided that "[e]xcept as provided in division (B) of this section, division (E) of section 2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a sentence of imprisonment shall be served concurrently with any other sentence of imprisonment imposed by a court of this state, another state, or the United States."
{ 30} In State v. Cook (May 20, 1987), Montgomery App. No. 10017, an appellate court considered whether a trial court violated a defendant's right to have his Ohio sentences served concurrently with a Michigan sentence, in the absence of a specification by the trial court to the contrary. Construing former R.C. 2929.41(A) and (B)(1), the appellate court determined "where the sentencing entries are silent, the Ohio sentences will automatically be treated as concurrent with the Michigan sentence by operation of R.C. 2929.41(A)." Thus, construing Cook, supra, we find former R.C. 2929.41(A) was self-executing and required DRC to calculate Stroud's expiration of sentence date in accordance with its provisions. See, e.g., State ex rel. Vickers v. Summit Cty. Council, 97 Ohio St.3d 204, 2002-Ohio-5583, at 31, quoting Black's Law Dictionary (7th Ed.1999) 1364 (observing that "[s]elf-executing means merely that [a] section is 'effective immediately without the need of any type of implementing action' "). See, also, State v. White (1985), 18 Ohio St.3d 340, 481 N.E.2d 596, syllabus ("[f]ormer R.C. 2929.41(E)(2), now (E)(3), is self-executing, automatically operating to limit the aggregate minimum sentencing term to fifteen years").
{ 31} Accordingly, DRC's reliance upon Corder, supra, is not persuasive.
{ 32} Here, DRC had an independent duty to follow the self-executing mandate of former R.C. 2929.41(A) and to calculate Stroud's expiration of sentence date concurrently with his ten-month federal sentence. DRC failed to follow former R.C. 2929.41(A)'s self-executing mandate.
{ 33} DRC's contention that it never held Stroud beyond the term of Stroud's sentence as imposed by the common pleas court is unavailing. Although the issue of jail-time credit is relevant to DRC's calculation of Stroud's expiration of sentence date, see, e .g., R.C. 2967.191 (credit for time awaiting trial and commitment), the issue of whether Stroud was entitled to jail-time credit is distinct from whether DRC failed to calculate Stroud's state sentence in a manner required by former R.C. 2929.41(A).
{ 34} Stated differently, not only was DRC required to properly apply jail-time credit as determined by the common pleas court, see Corder, supra, at 573, 589 N.E.2d 113, but, additionally, under former R.C. 2929.41(A), DRC had an independent duty to properly calculate Stroud's expiration of sentence date concurrently with Stroud's ten-month federal sentence.
*6 { 35} Moreover, even construing the evidence most strongly in DRC's favor, we are not persuaded by DRC's claim that it had no knowledge that the privilege initially justifying Stroud's confinement in a state correctional institution no longer existed.
{ 36} Here, as early as March 9, 1999, DRC was aware that Stroud, prior to his state incarceration, had been in federal custody. (Affidavit of Karen Sorrell dated January 17, 2002. [FN7]) Nevertheless, despite DRC's knowledge that Stroud had served a federal sentence prior to DRC's custody of Stroud, and despite DRC's knowledge of former R.C. 2929.41(A), and its own administrative regulations, i.e., Ohio Adm.Code 5120-2-03(B) [FN8] and 5120-2-031(D), [FN9] DRC continued to hold Stroud.
FN7. According to Sorrell's affidavit, "On March 9, 1999, DRC received a call from the judge's bailiff explaining that Stroud had been in federal custody, but advising that Stroud was only entitled to the 50 days of credit awarded in the entry and that he was not entitled to the days spent in federal custody between May 14, 1998 and February 26, 1999"). See, also, id. (averring that on April 16, 1999, DRC contacted the prosecutor's office regarding Stroud's sentence and was advised the prosecutor would request the judge to send an entry granting federal time served. However, on July 27, 1999, DRC received an entry only granting 108 days of credit).
FN8. See footnote 4, supra.
FN9. See footnote 5, supra.
{ 37} Therefore, notwithstanding the common pleas court's determination concerning jail-time credit, given DRC's knowledge that Stroud had served a federal sentence prior to DRC's custody of Stroud and DRC's knowledge of former R.C. 2929.41(A), and Ohio Adm.Code 5120-2-03(B) and 5120-2-031(D), which required a prison term to be served concurrently, not aggregated with a federal sentence, unless excepted, we are not persuaded by DRC's claim that it had no knowledge that the privilege initially justifying Stroud's confinement in a state correctional institution no longer existed.
{ 38} Furthermore, even construing the evidence most strongly in DRC's favor, we also must conclude DRC intentionally, rather than unintentionally, continued to confine Stroud. Here, under the facts of this case, DRC willingly, knowingly, and purposely continued to confine Stroud. See, e.g., 1 Restatement of the Law 2d, Torts (1965) 15, Section 8A (" 'intent' * * * denote[s] that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it"); Feliciano, supra, at 71, 362 N.E.2d 646, quoting 1 Harper and James, The Law of Torts (1956) 226, Section 3.7 (defining "false imprisonment" as intentionally confining another without lawful privilege and against another's consent within a limited area for any appreciable time, however short).
{ 39} Additionally, we are also not persuaded by DRC's contention that, by granting summary judgment in Stroud's favor, the Court of Claims improperly placed an affirmative duty upon DRC to ignore the common pleas court's determination that Stroud was not entitled to credit for time served in federal prison. Rather, by granting summary judgment in Stroud's favor, the Court of Claims correctly reaffirmed DRC's obligation to follow its own regulations and the self-executing mandate of former R.C. 2929.41(A) when calculating a prisoner's expiration of sentence date.
{ 40} Therefore, because in the absence of an intervening justification, the state may be found liable for the tort of false imprisonment if it intentionally continues to confine a prisoner despite knowledge that the privilege initially justifying the prisoner's confinement no longer exists, Bennett, supra, at paragraphs one and two of the syllabus; and, because, even construing the evidence most strongly in DRC's favor, no genuine issue of material fact exists; and because we find reasonable minds could come to but one conclusion and that conclusion is adverse to DRC; we therefore overrule DRC's single assignment of error.
*7 { 41} Accordingly, for the foregoing reasons, having overruled DRC's assignment of error and finding Stroud is entitled to judgment as a matter of law, we hereby affirm the judgment of the Court of Claims of Ohio.
Judgment affirmed.
BOWMAN, J., concurs.
LAZARUS, P.J., dissents.
LAZARUS, P.J., dissenting.
{ 42} Being unable to agree with the majority, I respectfully dissent.
{ 43} The trial court in this case expressly and repeatedly declined to give appellee credit for the time he served in federal prison. It is not the responsibility or right of staff of the Department of Rehabilitation and Correction to determine whether the trial court was legally correct in its rulings. A subsequent ruling by the intermediate appellate court that the trial court had erred does not retroactively negate the privilege (and duty) to continue to hold appellee until and unless a properly authorized tribunal ruled otherwise.
{ 44} Accordingly, I would reverse the judgment of the Court of Claims and enter judgment in favor of appellant.
Not Reported in N.E.2d, 2004 WL 239901 (Ohio App. 10 Dist.), 2004-Ohio-580
END OF DOCUMENT
"(A) * * * a sentence of imprisonment shall be served concurrently with any other sentence of imprisonment imposed by a court of this state, another state, or the United States. * * * "
Here, in its May 1998 Entry, the Franklin County Court of Common Pleas sentenced Stroud to two years, a month after the ten month sentence imposed by the federal court on April 10, 1998. Therefore, pursuant to the language of R.C. 2929.41, Stroud's term "shall be served concurrently."
* * *
Upon consideration, this court finds that Stroud's sentence of two years has expired, that he is being held unlawfully, that he has no adequate remedy at law and is entitled to the Writ of Habeas Corpus he requested. * * *
{ 21} "Collateral estoppel (issue preclusion) prevents parties or their privies from relitigating facts and issues in a subsequent suit that were fully litigated in a prior suit." Thompson v. Wing (1994), 70 Ohio St.3d 176, 183, 637 N.E.2d 917. "Collateral estoppel applies when the fact or issue (1) was actually and directly litigated in the prior action, (2) was passed upon and determined by a court of competent jurisdiction, and (3) when the party against whom collateral estoppel is asserted was a party in privity with a party to the prior action." Id. at 183, 637 N.E.2d 917, citing Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, 254 N.E.2d 10, paragraph two of the syllabus. Moreover, "[a]s a general matter, privity is 'merely a word used to say that the relationship between the one who is party on the record and another is close enough to include that other within the res judicata.' " Thompson, at 184, 637 N.E.2d 917, quoting Bruszewski v. United States (C.A.3, 1950), 181 F.2d 419, 423 (Goodrich, J., concurring).
*4 { 22} Here, R.C. 5120.05 [FN6] authorizes DRC to maintain, operate, manage, and govern state correctional institutions. Therefore, based on this authority, we find DRC's relationship to Alan Lazaroff, Warden of the Orient Correctional Institution of Pickaway County, Ohio, at the time Stroud petitioned for a writ of habeas corpus, is close enough to conclude DRC is bound by the determination of the Stroud I court wherein the court concluded Stroud's state sentence was to be served concurrently with Stroud's ten-month federal sentence and Stroud was unlawfully held.
FN6. R.C. 5120.05, effective March 17, 1998, in pertinent part, provides that "[t]he department or rehabilitation and correction may maintain, operate, manage, and govern all state institutions for the custody, control, training, and rehabilitation of persons convicted of crime and sentenced to correctional institutions."
Prior to March, 17, 1998, former R.C. 5120.05, effective October 6, 1994, in pertinent part, provided: "Except as otherwise provided as to appointments by chiefs of divisions, the director of rehabilitation and correction shall appoint the employees that are necessary for the efficient conduct of the department of rehabilitation and correction and shall prescribe their titles and duties. The department may maintain, operate, manage, and govern all state institutions for the custody, control, training, and rehabilitation of persons convicted of crime and sentenced to correctional institutions."
{ 23} Consequently, because the issue of whether Stroud was unlawfully held (1) was actually and directly litigated in a prior suit, (2) was passed upon and previously determined by a court of competent jurisdiction, and (3) because we have concluded DRC is in privity with Lazaroff, the party to the prior action in Stroud I, supra, we conclude DRC in this appeal is collaterally estopped from relitigating the issue of whether Stroud was unlawfully held.
{ 24} Therefore, the matter then resolves to a determination whether DRC is liable for the tort of false imprisonment.
{ 25} "False imprisonment occurs when a person confines another intentionally ' "without lawful privilege and against his consent within a limited area for any appreciable time, however short." ' " Bennett v. Ohio Dept. of Rehab. & Corr. (1991), 60 Ohio St.3d 107, 109, 573 N.E.2d 633, quoting Feliciano v. Kreiger (1977), 50 Ohio St.2d 69, 71, 362 N.E.2d 646, quoting 1 Harper & James, The Law of Torts (1956) 226, Section 3.7. Moreover, " 'each day's continuance of the body of a person in custody, is a distinct trespass, and may be treated as such.' " Bennett, at 109, quoting State ex rel. Kemper v. Beecher (1847), 16 Ohio 358, 363.
{ 26} "In the absence of an intervening justification, a person may be found liable for the tort of false imprisonment if he or she intentionally continues to confine another despite knowledge that the privilege initially justifying that confinement no longer exists." Bennett, at paragraph one of the syllabus. Moreover, "[p]ursuant to R.C. 2743.02(A)(1), the state may be held liable for the false imprisonment of its prisoners." Bennett, at paragraph two of the syllabus. But, see, id., at 110 (finding in Bennett that the court had "no occasion herein to determine whether there is a cause of action for an official's negligent failure to follow the law in releasing a prisoner").
{ 27} Relying on this court's decision in State ex rel. Corder (1991), 68 Ohio App.3d 567, 589 N.E.2d 113, motion to certify overruled, 62 Ohio St.3d 1484, 581 N.E.2d 1391, DRC maintains it was required to continue to hold Stroud pursuant to orders from the common pleas court. See, e.g., Corder, at 573, 589 N.E.2d 113 ("[t]here is simply no statutory provision conferring a right upon the Adult Parole Authority to ignore the trial court determination of the number of days and to substitute its own in complying with the mandate of R.C. 2967.191").
*5 { 28} However, Corder is distinguishable from the present case because in Corder this court construed former R.C. 2967.191, not R.C. 2929.41(A).
{ 29} In this case, former R.C. 2929.41(A), in effect at the time the common pleas court sentenced Stroud, provided that "[e]xcept as provided in division (B) of this section, division (E) of section 2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a sentence of imprisonment shall be served concurrently with any other sentence of imprisonment imposed by a court of this state, another state, or the United States."
{ 30} In State v. Cook (May 20, 1987), Montgomery App. No. 10017, an appellate court considered whether a trial court violated a defendant's right to have his Ohio sentences served concurrently with a Michigan sentence, in the absence of a specification by the trial court to the contrary. Construing former R.C. 2929.41(A) and (B)(1), the appellate court determined "where the sentencing entries are silent, the Ohio sentences will automatically be treated as concurrent with the Michigan sentence by operation of R.C. 2929.41(A)." Thus, construing Cook, supra, we find former R.C. 2929.41(A) was self-executing and required DRC to calculate Stroud's expiration of sentence date in accordance with its provisions. See, e.g., State ex rel. Vickers v. Summit Cty. Council, 97 Ohio St.3d 204, 2002-Ohio-5583, at 31, quoting Black's Law Dictionary (7th Ed.1999) 1364 (observing that "[s]elf-executing means merely that [a] section is 'effective immediately without the need of any type of implementing action' "). See, also, State v. White (1985), 18 Ohio St.3d 340, 481 N.E.2d 596, syllabus ("[f]ormer R.C. 2929.41(E)(2), now (E)(3), is self-executing, automatically operating to limit the aggregate minimum sentencing term to fifteen years").
{ 31} Accordingly, DRC's reliance upon Corder, supra, is not persuasive.
{ 32} Here, DRC had an independent duty to follow the self-executing mandate of former R.C. 2929.41(A) and to calculate Stroud's expiration of sentence date concurrently with his ten-month federal sentence. DRC failed to follow former R.C. 2929.41(A)'s self-executing mandate.
{ 33} DRC's contention that it never held Stroud beyond the term of Stroud's sentence as imposed by the common pleas court is unavailing. Although the issue of jail-time credit is relevant to DRC's calculation of Stroud's expiration of sentence date, see, e .g., R.C. 2967.191 (credit for time awaiting trial and commitment), the issue of whether Stroud was entitled to jail-time credit is distinct from whether DRC failed to calculate Stroud's state sentence in a manner required by former R.C. 2929.41(A).
{ 34} Stated differently, not only was DRC required to properly apply jail-time credit as determined by the common pleas court, see Corder, supra, at 573, 589 N.E.2d 113, but, additionally, under former R.C. 2929.41(A), DRC had an independent duty to properly calculate Stroud's expiration of sentence date concurrently with Stroud's ten-month federal sentence.
*6 { 35} Moreover, even construing the evidence most strongly in DRC's favor, we are not persuaded by DRC's claim that it had no knowledge that the privilege initially justifying Stroud's confinement in a state correctional institution no longer existed.
{ 36} Here, as early as March 9, 1999, DRC was aware that Stroud, prior to his state incarceration, had been in federal custody. (Affidavit of Karen Sorrell dated January 17, 2002. [FN7]) Nevertheless, despite DRC's knowledge that Stroud had served a federal sentence prior to DRC's custody of Stroud, and despite DRC's knowledge of former R.C. 2929.41(A), and its own administrative regulations, i.e., Ohio Adm.Code 5120-2-03(B) [FN8] and 5120-2-031(D), [FN9] DRC continued to hold Stroud.
FN7. According to Sorrell's affidavit, "On March 9, 1999, DRC received a call from the judge's bailiff explaining that Stroud had been in federal custody, but advising that Stroud was only entitled to the 50 days of credit awarded in the entry and that he was not entitled to the days spent in federal custody between May 14, 1998 and February 26, 1999"). See, also, id. (averring that on April 16, 1999, DRC contacted the prosecutor's office regarding Stroud's sentence and was advised the prosecutor would request the judge to send an entry granting federal time served. However, on July 27, 1999, DRC received an entry only granting 108 days of credit).
FN8. See footnote 4, supra.
FN9. See footnote 5, supra.
{ 37} Therefore, notwithstanding the common pleas court's determination concerning jail-time credit, given DRC's knowledge that Stroud had served a federal sentence prior to DRC's custody of Stroud and DRC's knowledge of former R.C. 2929.41(A), and Ohio Adm.Code 5120-2-03(B) and 5120-2-031(D), which required a prison term to be served concurrently, not aggregated with a federal sentence, unless excepted, we are not persuaded by DRC's claim that it had no knowledge that the privilege initially justifying Stroud's confinement in a state correctional institution no longer existed.
{ 38} Furthermore, even construing the evidence most strongly in DRC's favor, we also must conclude DRC intentionally, rather than unintentionally, continued to confine Stroud. Here, under the facts of this case, DRC willingly, knowingly, and purposely continued to confine Stroud. See, e.g., 1 Restatement of the Law 2d, Torts (1965) 15, Section 8A (" 'intent' * * * denote[s] that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it"); Feliciano, supra, at 71, 362 N.E.2d 646, quoting 1 Harper and James, The Law of Torts (1956) 226, Section 3.7 (defining "false imprisonment" as intentionally confining another without lawful privilege and against another's consent within a limited area for any appreciable time, however short).
{ 39} Additionally, we are also not persuaded by DRC's contention that, by granting summary judgment in Stroud's favor, the Court of Claims improperly placed an affirmative duty upon DRC to ignore the common pleas court's determination that Stroud was not entitled to credit for time served in federal prison. Rather, by granting summary judgment in Stroud's favor, the Court of Claims correctly reaffirmed DRC's obligation to follow its own regulations and the self-executing mandate of former R.C. 2929.41(A) when calculating a prisoner's expiration of sentence date.
{ 40} Therefore, because in the absence of an intervening justification, the state may be found liable for the tort of false imprisonment if it intentionally continues to confine a prisoner despite knowledge that the privilege initially justifying the prisoner's confinement no longer exists, Bennett, supra, at paragraphs one and two of the syllabus; and, because, even construing the evidence most strongly in DRC's favor, no genuine issue of material fact exists; and because we find reasonable minds could come to but one conclusion and that conclusion is adverse to DRC; we therefore overrule DRC's single assignment of error.
*7 { 41} Accordingly, for the foregoing reasons, having overruled DRC's assignment of error and finding Stroud is entitled to judgment as a matter of law, we hereby affirm the judgment of the Court of Claims of Ohio.
Judgment affirmed.
BOWMAN, J., concurs.
LAZARUS, P.J., dissents.
LAZARUS, P.J., dissenting.
{ 42} Being unable to agree with the majority, I respectfully dissent.
{ 43} The trial court in this case expressly and repeatedly declined to give appellee credit for the time he served in federal prison. It is not the responsibility or right of staff of the Department of Rehabilitation and Correction to determine whether the trial court was legally correct in its rulings. A subsequent ruling by the intermediate appellate court that the trial court had erred does not retroactively negate the privilege (and duty) to continue to hold appellee until and unless a properly authorized tribunal ruled otherwise.
{ 44} Accordingly, I would reverse the judgment of the Court of Claims and enter judgment in favor of appellant.
Not Reported in N.E.2d, 2004 WL 239901 (Ohio App. 10 Dist.), 2004-Ohio-580
END OF DOCUMENT