I respectfully dissent.
Crenshaw was convicted on a federal charge in 1968 and sentenced to fifteen years. After about ten or eleven years he was released on federal parole. In 1980, he was charged with several crimes in Ohio, declared a parole violator, and sent back to federal prison. In 1981, he asked to be tried on the Ohio charges, was convicted, and sentenced to an aggregate eighteen to sixty-five years. When he completed his federal sentence around 1984, he was sent to Ohio to do his Ohio time. *Page 606
In 1989, he brought a mandamus against the Parole Board, claiming that they should not have made his Ohio sentence consecutive to the federal sentence. He argued that R.C.2929.41, which says that any sentence imposed for a crime committed while the defendant is on parole must be served consecutively, applies only to state offenses. We rejected that and held that the statute applied to both federal and state parole.
Crenshaw then filed a motion to reconsider and argued that if the federal sentence is included for sentencing purposes under R.C. 2929.41(A)(3), then it must also be included for calculating his parole eligibility date under R.C. 2929.41(C) and (E). We agreed and sent the case back to have the Ohio Adult Parole Authority re-calculate his time.
R.C. 2929.41(A) says that an Ohio sentence shall be concurrent with the sentence from any other jurisdiction, state or federal, unless it fits within the exceptions in R.C.2929.41(B). R.C. 2929.41(B)(3) says the Ohio sentence shall be consecutive with any other sentence if committed while on parole.
R.C. 2929.41(C) begins by saying that, "Subject to the maximums provided in division (E) of the section * * *."
R.C. 2929.41(E) says when a defendant gets multiple sentences with an aggregate minimum term of more than fifteen years the maximum/minimum shall be fifteen years. Thus, Crenshaw's eighteen to sixty-five-year Ohio sentence must be reduced to a maximum/minimum of fifteen years. This is what the OAPA did, and then calculated his parole eligibility at about ten years, or around 1994.
R.C. 2929.41(C) says:
"(2) When consecutive sentences of imprisonment are imposed for felony under division (B)(2) or (3) of this section, the minimum term to be served is the aggregate of the consecutive minimum terms imposed reduced by the time already served on any such minimum term, and the maximum term imposed is the aggregate of the consecutive maximum terms imposed."
According to the OAPA, the minimum term for Crenshaw under this section should be computed as follows:
*Page 60715 years federal time + 15 years state time 30 years total — 15 years time already served 15 years, or about 10 years to parole date
According to Crenshaw's calculation and using the entire language of the statute, here is how the time should be:
1. Aggregate consecutive minimum terms,
15 years federal time + 18 years state time 33 years total — 18 years as per reduction under R.C. 2929.41(E) 15 years — 15 years less time already served 0
Thus, it appears that Crenshaw was eligible for parole on the very day he arrived to begin his Ohio sentence. It seems to me we have one of those situations where this may not be what the legislature intended. The problem here is not what the legislature intended, but what it said.
No doubt the facts here lead to an odd result, but another set of facts would lead to just as odd a result. For example, suppose identical defendants were convicted and got identical ten-year sentences. Suppose one got probation and the other was paroled after serving five years. If both were then again convicted and got another ten years, the probationer would have two ten-year minimums and thus under R.C. 2929.41(E) be eligible for parole in fifteen years. The parolee would have two ten-year minimums and under the majority's interpretation would have the five years subtracted first. Thus, he too would be eligible for parole after fifteen years. Under my interpretation, he would get twenty reduced to fifteen under R.C. 2929.41(E) and then be given five years' credit for time served and be eligible after ten years.
The problem as I see it is that all of the sentences imposed under R.C. 2929.41(C) are "Subject to the maximums provided in division (E) of this section * * *." It has been held that R.C.2929.41(E) is self-executing, State v. Slider (1980), 70 Ohio App.2d 283, 24 O.O.3d 387, 437 N.E.2d 5, automatically operating to reduce the maximum/minimum to fifteen years.
The language of the statute is that all sentences imposed under R.C. 2929.41(C) are reduced to the maximums of R.C.2929.41(E), and then some of the sentences under R.C. 2929.41(C) are further reduced by the time already served. I don't see how this language is open to any other construction. The majority opinion suggests that the time served is subtracted out first, but there is no reason why it should be done that way, and a very good reason for not doing it that way — i.e., this interpretation actually does away with credit for time served in many cases. *Page 608
What has happened here is that there is an anomaly because Crenshaw had no minimum federal term and actually did fifteen years on it which is, of course, the maximum under R.C.2929.41(E). That he would be eligible for parole looks odd. On the other hand, we cannot construe that statute to say that whenever the multiple sentences exceed the R.C. 2929.41(E) fifteen-year limit, the prisoner is not entitled to any credit for the time he has already served. We cannot ignore the statutory language that says a prisoner must be given credit for time served.
In other words, if Crenshaw had not served a day of federal time, he would, under the other interpretation, have the same parole date. This is, to my mind, just as anomalous a result. This too is hardly what the legislature intended.
I think we should remember that this is not our doing. The statute reads as the legislature wanted it to read. If it is to be changed to eliminate these odd results, let the legislature make the changes. We ought not go out on a limb and read the statute to say what we think the legislature meant, and by doing so risk eliminating credit for time served which the legislature itself has said is mandatory.
I also think we should remember how we got into this bind. We held that his federal sentence had to be included for sentence enhancement purposes under R.C. 2929.41(C) even though federal sentences are not specifically mentioned. Now we are holding that it may not be included for credit-for-time-served purposes under R.C. 2929.41(C) even though that credit is specifically mentioned in the statute. Where is the consistency in our decisions?
Crenshaw found a loophole in Ohio's sentencing law. The majority is amending the law to close that loophole. That is not our job.
Thus, I dissent. *Page 609