1998 OHIO 430 - State ex rel. Maynard v. Corrigan

[This opinion has been published in Ohio Official Reports at

81 Ohio St.3d 332

.]




 THE STATE EX REL. MAYNARD, APPELLANT, v. CORRIGAN, JUDGE, APPELLEE.
       THE STATE EX REL. TINO, APPELLANT, v. JONES, JUDGE, APPELLEE.
            [Cite as State ex rel. Maynard v. Corrigan,

1998-Ohio-430

.]
Mandamus to compel common pleas court judges to adjust relators’ criminal
sentences in accordance with the sentencing provisions of Am.Sub.S.B. No.
2, as amended by Am.Sub.S.B. No. 269—Complaints dismissed, when.
(Nos. 97-1193 and 97-1274—Submitted October 20, 1997—Decided April 1,
1998.)
APPEALS from the Court of Appeals for Cuyahoga County, Nos.
72253 and 72358.
__________________
{¶ 1} Appellants, Lewis Maynard and David L. Tino, inmates incarcerated
at Lorain Correctional Institution, filed complaints in the Court of Appeals for
Cuyahoga County for writs of mandamus to compel appellees, Cuyahoga County
Common Pleas Court Judges Michael Corrigan and Peggy Foley Jones, to adjust
their criminal sentences in accordance with the sentencing provisions of
Am.Sub.S.B. No. 2, as amended by Am.Sub.S.B. No. 269. Appellants both alleged
that they were imprisoned under the laws that preceded the July 1, 1996 effective
date of Am.Sub.S.B. No. 2. The court of appeals granted appellees’ motions and
dismissed appellants’ complaints.
{¶ 2} These causes are now before the court on appeals as of right.1
__________________
Lewis Maynard, pro se.

1. We sua sponte consolidate these cases for purposes of opinion because they raise identical legal
issues. State ex rel. Wilcox v. Seidner (1996),

76 Ohio St.3d 412, 413

667 N.E.2d 1220, 1221

.
                            SUPREME COURT OF OHIO




       David L. Tino, pro se.
       Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and L.
Christopher Frey, Assistant Prosecuting Attorney, for appellee Judge Corrigan.
       Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and
Sherry F. McCreary, Assistant Prosecuting Attorney, for appellee Judge Jones.
                                __________________
       Per Curiam.
       {¶ 3} Appellants assert that the court of appeals erred in dismissing their
mandamus complaints. They contend that the failure of appellees to adjust their
sentences in accordance with the provisions of Am.Sub.S.B. No. 2 violated their
constitutional right to equal protection, R.C. 1.58, and applicable case law.
Appellants’ contentions, however, are meritless for the following reasons.
       {¶ 4} First, Am.Sub.S.B. No. 2 does not apply to persons convicted and
sentenced prior to July 1, 1996. Section 5, Am.Sub.S.B. No. 2 (“The provisions of
the Revised Code in existence prior to July 1, 1996, shall apply to a person upon
whom a court imposed a term of imprisonment prior to that date ….”).
       {¶ 5} Second, the refusal of the General Assembly to retroactively apply the
sentencing provisions of Am.Sub.S.B. No. 2 to persons convicted and sentenced
before July 1, 1996 does not violate appellants’ rights to equal protection and due
process under the Fourteenth Amendment to the United States Constitution. State
ex rel. Lemmon v. Ohio Adult Parole Auth. (1997),

78 Ohio St.3d 186, 188

677 N.E.2d 347, 349

.
       {¶ 6} Third, R.C. 1.58(B) does not require appellees to apply Am.Sub.S.B.
No. 2 to appellants because their sentences were imposed prior to July 1, 1996.
State v. Abelt (Feb. 27, 1997), Cuyahoga App. No. 71361, unreported,

1997 WL 82823

; State v. Villa (Mar. 12, 1997), Lorain App. No. 96CA006589, unreported,

1997 WL 119487

; State v. Melching (Sept. 15, 1997), Jefferson App. No. 96JE41,
unreported,

1997 WL 598043

. Appellants did not specifically allege that they were



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                                 January Term, 1998




sentenced after July 1, 1996. Cf. State v. Rush (July 7, 1997), Stark App. No.
96CA419, unreported, appeal pending in case No. 97-1778 (Neither Am.Sub.S.B.
No. 2 nor Am.Sub.S.B. No. 269 repealed R.C. 1.58, so R.C. 1.58 applies to persons
sentenced after July 1, 1996 despite the language of Am.Sub.S.B. No. 269.); see
State ex rel. Fain v. Summit Cty. Adult Probation Dept. (1995),

71 Ohio St.3d 658, 659

646 N.E.2d 1113, 1114

 (Inmates are required to plead specific facts rather than
unsupported conclusions in order to withstand dismissal of complaints for writs of
mandamus.).
       {¶ 7} Finally, the cases relied on by appellants are inapposite because they
addressed Am.Sub.H.B. No. 300, effective November 21, 1975, an amendment that
specified that persons convicted and sentenced under prior law were entitled to have
their previously imposed sentences modified in conformity with the penalties
provided by the new law. See State v. Morris (1978),

55 Ohio St.2d 101

9 O.O.3d 92

378 N.E.2d 708

; State v. Bradford (1978),

55 Ohio St.2d 116

9 O.O.3d 100

378 N.E.2d 717

; State v. Goodnight (1977),

52 Ohio App.2d 333

6 O.O.3d 388

370 N.E.2d 486

. Am.Sub.S.B. No. 2, as amended by Am.Sub.S.B. No. 269,
contains no similar provision.
       {¶ 8} Based on the foregoing, the court of appeals properly granted
appellees’ motions and dismissed appellants’ complaints. Accordingly, we affirm
the judgments of the court of appeals.
                                                               Judgments affirmed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
                                 __________________




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