Trevathan v. Eppinger

2021 Ohio 1134

• Court: Ohio Court of Appeals
• Decided: April 5, 2021
• Docket: 2020-T-0086
• Status: Published

Opinion

[Cite as Trevathan v. Eppinger, 2021-Ohio-1134.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

DANNY TREVATHAN, : PER CURIAM OPINION

Petitioner, : CASE NO. 2020-T-0086 - vs - :

LASHANN EPPINGER (WARDEN), :

Respondent. :

Original Action for Writ of Habeas Corpus.

Judgment: Petition denied.

Danny Trevathan, pro se, A544-000, Trumbull Correctional Institution, 5701 Burnett Road, P.O. Box 640, Leavittsburg, OH 44430 (Petitioner).

Dave Yost, Ohio Attorney General, State Office Tower, 30 East Broad Street, 16th Floor, Columbus, Ohio 43215, and Stephanie Watson, Assistant Attorney General, Ohio Attorney General’s Office, 150 East Gay Street, 16th Floor, Columbus, OH 43215 (For Respondent).

PER CURIAM.

{¶1} Danny Trevathan, an inmate at the Trumbull Correctional Institution,

petitions this court to issue a writ of habeas corpus to Warden LaShann Eppinger.

Trevathan contends the Bureau of Sentence Computation (“BSC”) arbitrarily added an

additional year to his prison sentence without a court order. The matter is now before us

on the Warden’s motion for summary judgment and Trevathan’s reply in opposition. {¶2} “Summary judgment is appropriate when an examination of all relevant

materials filed in the action reveals that ‘there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a matter of law.’” Smith v. McBride,

130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12, quoting Civ.R. 56(C).

{¶3} “To be entitled to a writ of habeas corpus, a party must show that he is being

unlawfully restrained of his liberty, R.C. 2725.01, and that he is entitled to immediate

release from prison or confinement.” State ex rel. Cannon v. Mohr, 155 Ohio St.3d 213,

2018-Ohio-4184, 120 N.E.3d 776, ¶ 10, citing Leyman v. Bradshaw, 146 Ohio St.3d 522,

2016-Ohio-1093, 59 N.E.3d 1236, ¶ 8. “Habeas corpus is generally available only when

the petitioner’s maximum sentence has expired and he is being held unlawfully. And in

those circumstances, the writ is not available when there is an adequate remedy in the

ordinary course of the law.” (Citations omitted.) Steele v. Harris, 161 Ohio St.3d 407,

2020-Ohio-5480, 163 N.E.3d 565, ¶ 13.

{¶4} The Warden first contends Trevathan cannot succeed in his petition

because his claim that the BSC miscalculated the expiration date of his sentence is not

cognizable in habeas corpus. The Warden relies on State ex rel. Fraley v. Ohio Dept. of

Rehab. & Corr., 161 Ohio St.3d 209, 2020-Ohio-4410, 161 N.E.3d 646, where the

offender was granted a writ of mandamus compelling the Ohio Department of

Rehabilitation and Correction (“DRC”) to correct its records. Here, Trevathan argues he

is being held unlawfully because his maximum sentence, which was arbitrarily changed

by the DRC, has expired. If such an argument has merit, a writ of habeas corpus may

issue. See, e.g., State ex rel. Oliver v. Turner, 153 Ohio St.3d 605, 2018-Ohio-2102, 109

N.E.3d 1204. The Warden’s contention fails, therefore, as a matter of law.

2 {¶5} The Warden further contends Trevathan cannot demonstrate that his

maximum sentence has expired. The Warden supports his motion with an affidavit of the

Correction Records Sentence Computation Auditor for the DRC. The Auditor prepared

and attached a calculation of sentence for Trevathan from DRC records, which is

summarized as follows:

{¶6} Trevathan was admitted to the DRC December 30, 1992, for felony

convictions in Mahoning County case number 92-CR-570. He was ordered to serve three

concurrent sentences, the longest an indefinite 5 to 25 years, plus a consecutive 3-year

term for a firearm specification in violation of R.C. 2941.141. His maximum expiration

date was May 13, 2020. Trevathan was paroled February 1, 2006. Trevathan was again

admitted to the DRC March 10, 2008, for felony convictions in Mahoning County case

number 2006-CR-593. He was ordered to serve four concurrent sentences of 1 year

each, plus a consecutive 1-year term for a firearm specification in violation of R.C.

2941.141. This sentence was ordered to run concurrent with Trevathan’s sentence in a

federal case. The Auditor concludes, “The gun specification is consecutive with his

maximum expiration date. His maximum expiration date became 5/13/2021.”

{¶7} In response, Trevathan contends his “release date has [consistently] stated

May 13, 2020 from the beginning of the sentencing violation on March 4, 2008, Case No.

2006-CR-593 for over a decade,” and “the court,” presumably the sentencing court, “has

maintained that everything is to run concurrent.” He refers to documents attached to his

petition—"Placement Investigation Request,” dated January 18 and February 20, 2020—

which indicate “MAX: 05/13/2020.” Trevathan claims that sometime after these dates, his

maximum expiration date changed to May 13, 2021.

3 {¶8} Also attached to Trevathan’s petition are copies of sentencing entries from

Mahoning County case numbers 92-CR-570 and 2006-CR-593, as well as the sentencing

entry from the federal case. The Warden does not contest the authenticity of these entries

and specifically refers to the 2006-CR-593 entry in his motion.

{¶9} The central dispute is whether the 1-year sentence for the firearm

specification in 2006-CR-593 runs concurrently with or consecutively to the prison

sentence in 92-CR-570. Dispositive and fatal to Trevathan’s petition is that the 2006-CR-

593 entry is silent on the issue.

{¶10} “When a statute requires sentences to be served consecutively and the

sentencing entry is silent as to how the sentences are to run, the statute controls.” Fraley,

2020-Ohio-4410, at ¶ 13, citing State ex rel. Thompson v. Kelly, 137 Ohio St.3d 32, 2013-

Ohio-2444, 997 N.E.2d 498, ¶ 10. And, R.C. 2929.14(C)(1)(a)1 requires a mandatory

prison term for a firearm specification in violation of R.C. 2941.141 to be served

“consecutively to any other prison term or mandatory prison term previously or

subsequently imposed upon the offender.”

{¶11} Therefore, because the 2006-CR-593 sentencing entry is silent in this

regard, Trevathan is required to serve the 1-year firearm specification in 2006-CR-543

consecutively to the prison term previously imposed in 92-CR-570. Trevathan has not

demonstrated a genuine issue as to any material fact with respect to his claim that he is

entitled to immediate release from prison. The Warden is entitled to summary judgment

as a matter of law.

1. R.C. 2929.14(E)(1)(a) at the time of Trevathan’s 2008 sentencing.

4 {¶12} Also, Trevathan’s reliance on the disposition in Fraley is inapposite. There,

the relator was entitled to a writ compelling the DRC to correct its records because the

sentencing entries were not silent—the court had ordered the sentences in two cases to

be served concurrently with each other and did not separately address the sentences for

the firearm specifications. Although a legal error, the state did not appeal. In that

situation, “DRC’s role is not to correct a sentencing court’s errors and impose the

sentence it believes the court should have imposed. To the contrary, DRC is obliged to

execute the sentence imposed by the court.” Fraley at ¶ 17, citing State v. Grimes, 151

Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 21.

{¶13} The Warden’s motion for summary judgment is granted. Trevathan’s

petition for a writ of habeas corpus is denied.

CYNTHIA WESTCOTT RICE, J., THOMAS R. WRIGHT, J., MATT LYNCH, J., concur.