[Cite as State v. Armstrong, 2018-Ohio-191.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27413
:
v. : Trial Court Case No. 92-CR-196
:
A.D. ARMSTRONG : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 19th day of January, 2018.
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MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
HILARY LERMAN, Atty. Reg. No. 0029975, 249 Wyoming Street, Dayton, Ohio 45409
Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} A.D. Armstrong appeals from a judgment of the Montgomery County Court
of Common Pleas, which overruled his post-conviction “motion for court to consider
evidence that gun spec has already been served” and other post-conviction motions. For
the following reasons, the trial court’s judgment will be affirmed.
{¶ 2} In 1992, Armstrong was convicted after a bench trial of aggravated burglary
and received a sentence of 6 to 25 years in prison. We affirmed his conviction on direct
appeal. State v. Armstrong, 2d Dist. Montgomery No. 13498, 1993 WL 294834 (Aug. 6,
1993).
{¶ 3} The record does not reflect when Armstrong was released on parole, but his
filings with the trial court reflect that, in 2005, he was convicted of felonious assault with
a firearm specification. See State v. Armstrong, Montgomery C.P. No. 2004 CR 2162.
Armstrong was apparently sentenced to six years in prison for felonious assault with an
additional three-year term for the firearm specification.
{¶ 4} While in prison, Armstrong has filed numerous pro se motions with the trial
court in this case (Case No. 1992 CR 196) related to the length of his incarceration. Of
relevance to this appeal, in 2016, Armstrong filed five motions, seeking (1) clarification of
his sentence, (2) appointment of counsel, (3) that the court consider evidence that his
gun specification had already been served, (4) removal to the Montgomery County Jail,
and (5) to add evidence to his case.
{¶ 5} On December 28, 2016, the trial court overruled the motion to consider that
his gun specification had already been served and the other motions. The court stated,
in its entirety:
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Defendant in this case has filed a Motion for Court to Consider
Evidence that Gun Spec has Already Been Served which he claims relates
a judgment against him for a gun specification attached to his conviction for
aggravated burglary in the above-captioned matter. The Court notes that
on May 16, 2016, the Defendant also filed an [sic] document entitled
Clerification (sic) of Sentence that merely related to documents that he had
submitted to the Second District Court of Appeals. Defendant also filed a
civil docket statement with the Second District Court of Appeals, which was
treated as an appeal by that Court and dismissed on May 5, 2016. The
Court notes that in his filings, Defendant appears to be challenging a
calculation of his sentence by the Ohio Department of Rehabilitation and
Correction, Bureau of Sentence Computation/Records [M]anagement
rather than the judgment imposed by this Court. The Court has reviewed
the docket of the above-captioned matter and finds that Defendant was
neither charged with, nor convicted of, a gun specification in this case.
Furthermore, this Court has no jurisdiction over the calculations of
sentences by the Ohio Department of Rehabilitation and Correction, Bureau
of Sentence Computation/ Records [Management].
Accordingly, this Court hereby OVERRULES Defendant’s Motion for
Court to Consider Evidence that Gun Spec Has Already Been Served. In
rendering this Decision, the Court notes that, in addition to considering
Defendant’s motion, it has also considered the following filings made by
Defendant: (i) Motion to Show Cause, Clarification of the Record and
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Correction of Administrative Rule filed on April 6, 2016 (relating to his Court
of Appeals filing and an unrelated case in Franklin County), (ii) Clerfication
(sic) of Sentence filed on May 16, 2016 (relating to his appellate court case),
and (iii) Motion to Add Evidence (which merely submits statutes and judicial
opinions that Defendant believes are relevant to his claims). None of these
filings affect the Court’s lack of jurisdiction over the computation of
Defendant’s sentence by the Ohio Department of Rehabilitation and
Correction, Bureau of Sentence Computation/Records [Management].
Because Defendant’s Motion for Court to Consider Evidence that
Gun Spec has Already Been Served is found to be without merit, the Court
also hereby OVERRULES Defendant’s ancillary Motion for Removal to
Montgomery County Jail for Defendant’s Court Date.
{¶ 6} Armstrong appeals from the trial court’s judgment. In his appellate brief, he
argues that the trial court, at his original sentencing in 1992, did not inform him that he
would be under the control of the Parole Board upon his release from prison or of the
consequences if he violated the conditions of his parole. Armstrong specifically asserts
that the court should have informed him of the consequences of committing another
felony while on parole.
{¶ 7} Armstrong raises issues on appeal that were not raised by motion in the trial
court. Armstrong cannot raise these new issues for the first time on appeal. See, e.g.,
State v. Anderson, 2017-Ohio-5656, 87 N.E.3d 1203, ¶ 4 (2d Dist.); Shields v. Englewood,
172 Ohio App.3d 620, 2007-Ohio-3165, 876 N.E.2d 972, ¶ 68 (2d Dist.) (“It is well settled
that a nonconstitutional issue raised for the first time on appeal is not properly before a
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reviewing court”).
{¶ 8} Furthermore, Armstrong’s motion in the trial court sought a ruling that he had
already served the sentence on his firearm specification. Armstrong was convicted of a
firearm specification in Case No. 2004 CR 2162, not in the 1992 case underlying this
appeal. The trial court had no authority to address Armstrong’s sentence in his 2004
case. And, the trial court properly concluded that Armstrong’s motion in this criminal
case was not the proper avenue for challenging the Ohio Department of Rehabilitation
and Correction’s calculation of his sentence expiration date.
{¶ 9} Armstrong’s assignment of error is overruled. The trial court’s judgment will
be affirmed.
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WELBAUM, P. J. and DONOVAN, J., concur.
Copies mailed to:
Mathias H. Heck
Andrew T. French
Hilary Lerman
Hon. Barbara P. Gorman
State v. Armstrong
Combined Opinion