State v. Miller

[Cite as State v. Miller, 2021-Ohio-232.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

:
STATE OF OHIO :
: Appellate Case No. 28545
Plaintiff-Appellee :
: Trial Court Case No. 1984-CR-1853
v. :
: (Criminal Appeal from
JERRY MILLER : Common Pleas Court)
:
Defendant-Appellant :

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OPINION

Rendered on the 29th day of January, 2021.

...........

MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

JERRY MILLER, #A487-391, 1001 Olivesburg Road, P.O. Box 8107, Mansfield, Ohio
44901
Defendant-Appellant, Pro Se

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FROELICH, J.
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{¶ 1} Jerry Miller appeals from a judgment of the Montgomery County Court of

Common Pleas, which denied his pro se motion for de novo resentencing or to correct

his sentence. For the following reasons, the trial court’s judgment will be affirmed.

Factual and Procedural Background

{¶ 2} Miller’s criminal history involves multiple felonies committed in several

jurisdictions. This case arises from the 1984 robbery of a bank in Huber Heights, of

which Miller was convicted in 1986. Miller’s motion for resentencing in this case

stemmed from alleged confusion over whether his sentence was required to be served

consecutively to or concurrently with his sentences in other cases.

{¶ 3} In October 1966, Miller was convicted in Montgomery County of armed

robbery, for which he received a prison term of 10 to 25 years, and “shooting with intent

to kill,” for which he received a prison term of one to 20 years, to be served consecutively.

State v. Miller, Montgomery C.P. No. 26257; see Defendant’s 7/22/2014 Motion, Ex. #3.

On August 17, 1976, Miller was placed on parole, but he was declared a violator at large

on June 6, 1977. See Defendant’s 9/15/2014 Reply Memo, Ex. 1 (Melissa Adams Aff.,

¶ 3); Miller v. State, 5th Dist. Richland No. 15CA96, 2016-Ohio-4623, ¶ 6.

{¶ 4} In April 1977, Miller was indicted in an Ohio federal court with the armed

robbery of a federal savings and loan association. Miller pled guilty to the offense, and

on July 1, 1977, the federal court sentenced him to a prison term for 21 years. Miller v.

United States, 709 F.2d 1505, 1983 U.S. App. LEXIS 13161 (6th Cir. Apr. 19, 1983); see

State’s 9/5/2014 Memo, Ex. #1. Miller was paroled from federal custody on June 14,

1984. Miller, 5th Dist. Richland No. 15CA96, 2016-Ohio-4623, at ¶ 8.
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{¶ 5} On October 12, 1984, Miller robbed the Home State Savings Bank in Huber

Heights and shot a bank teller. On November 6, 1984, Miller was indicted for the

aggravated robbery of the bank and the felonious assault of the bank teller; each count

contained a firearm specification and a prior aggravated felony specification. State v.

Miller, Montgomery C.P. No. 1984-CR-1853. Miller was in federal custody at the time of

the indictment.

{¶ 6} On May 10, 1985, a federal court in Kentucky sentenced Miller to 25 years

in prison for bank robbery and endangering the lives of bank employees by using a

dangerous weapon. See United States v. Miller, 793 F.2d 786, 787 (6th Cir.1986).

Three days later, Miller attempted to escape federal custody by taking a person hostage.

See id.; 7/9/1986 Tr. at 10-11. A jury subsequently found Miller guilty of attempting to

escape federal detention and forcing a person to accompany him without consent.

Miller, 793 F.2d at 788. On October 4, 1985, the federal court merged those two counts

and sentenced Miller to 15 years of imprisonment, to be served “consecutive to any

sentence he was then serving.” Id. at 788-789.

{¶ 7} On April 10, 1986, Miller pled guilty in the Hamilton County Court of Common

Pleas to aggravated robbery with two specifications. State v. Miller, Hamilton C.P. No.

B 8500189. The Hamilton County court sentenced Miller to 10 to 25 years in prison, plus

three years of actual incarceration on the firearm specification. The judgment entry

further provided that, “[e]xcept for Three (3) years ACTUAL on Specification, the sentence

of Ten (10) to Twenty-Five (25) years confinement required by Specification 1 will run

concurrently with any sentence imposed by a U.S. District Court or a Federal Court and

with any future sentence which may be imposed by a Common Pleas Court in
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Montgomery County.” See Defendant’s 7/22/2014 Motion, Ex. #2.

{¶ 8} On July 17, 1986, Miller was convicted in Montgomery County of aggravated

robbery and felonious assault, both with specifications, related to the 1984 Huber Heights

bank robbery. Miller, Montgomery C.P. No. 1984-CR-1853. The trial court imposed 15

to 25 years in prison for the aggravated robbery and 12 to 15 years for the felonious

assault, to be served concurrently. The court further imposed three years of actual

incarceration for the firearm specification to be served prior to and consecutively to the

sentences for aggravated robbery and felonious assault. The court ordered that the

sentences in the case be served “CONSECUTIVE with sentences imposed by the United

States Federal Court.” See Defendant’s 7/22/2014 Motion, Ex. #1.

{¶ 9} Miller appealed his conviction for the Huber Heights bank robbery. We held

that the trial court erred in sentencing Miller on two three-year firearm specifications and

modified the sentence by “deleting” one of those sentences; we otherwise affirmed

Miller’s conviction. State v. Miller, 2d Dist. Montgomery No. 10043, 1987 WL 12967

(June 18, 1987).

{¶ 10} Miller was released from federal custody on January 12, 2005 (see State’s

6/20/2019 Memo., Ex. #4), and he was admitted to the Ohio Department of Rehabilitation

and Correction (ODRC) for this case (Montgomery Case No. 1984-CR-1853) on January

21, 2005 (see 1/31/2005 Notice of Commitment). The notice of commitment indicated

that his calculated release/parole date was July 18, 2018.

{¶ 11} The ODRC calculated Miller’s maximum indefinite sentence to be 70 years

and his maximum sentence expiration date to be July 14, 2049.1 See State’s 6/20/2019

1 Melissa Adams, Assistant Chief of the Bureau of Sentence Computation, explained the
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Memo, Ex. #5.

{¶ 12} Since his incarceration in Ohio, Miller has sought clarification or correction

of his 1986 judgment entry on several occasions. In 2007, Miller brought suit in Hamilton

County, challenging the consecutive nature of certain sentences based on “contractual

agreements” regarding his criminal sentences. Miller v. State, Hamilton C.P. No. A

0706646; see Defendant’s 7/22/2014 Motion, Ex. #4. That suit was unsuccessful.

{¶ 13} On July 22, 2014, Miller filed a motion in the Montgomery Count trial court

to “clarify, interpret [or] correct 7/17/86 judgement [sic] sentence entry.” He asserted that

his sentences in this case, his 1966 case, and his Hamilton County case were to be

served concurrently, pursuant to a plea agreement with the Hamilton County prosecutor,

and he claimed that his July 1986 judgment entry needed to be clarified to reflect this.

Miller appeared to argue that, because the Hamilton County sentence was run

concurrently with his federal sentences, his 1986 Montgomery County sentence was also

required to be served concurrently with his federal sentences. On April 21, 2015, prior

to a ruling on his July 22, 2014 motion, Miller filed a motion to “vacate and correct void

and (or) voidable aspect of 7-17-86 judgement sentence consecutive entry.” The trial

court overruled the motions in May 2015 and denied a subsequent motion to “rescind” its

decision. Miller did not appeal the trial court’s decisions.

{¶ 14} Miller also filed suit in Richland County, where he was incarcerated,

challenging the computation of his sentences and maximum release date. See Miller,

5th Dist. Richland No. 15CA96, 2016-Ohio-4623; State ex rel. Miller v. Bradshaw, 5th

calculation of this date in a January 22, 2008 affidavt. See Defendant’s 9/15/2014 Reply
Memo, Ex. 1.
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Dist. Richland No. 15CA110, 2016-Ohio-5033 (addressing a third petition for a writ of

habeas corpus on the ground that his sentences had expired); State ex rel. Miller v. May,

5th Dist. Richland No. 19 CA 56, 2019-Ohio-4065 (addressing a fourth petition for writ of

habeas corpus due to expired sentences). In Case No. 15CA96, Miller raised on appeal

that the Richland County trial court erred in failing to find that the State was bound by the

April 10, 1986 plea agreement and in failing to find that all his sentences were required

to be served concurrently. Miller, 5th Dist. Richland No. 15CA96, 2016-Ohio-4623.

Miller’s challenges in Richland County also were unsuccessful.

{¶ 15} On June 29, 2017, Miller filed a petition for a writ of mandamus in the Tenth

District Court of Appeals, again arguing that the trial court improperly imposed

consecutive sentences instead of concurrent sentences in his Ohio cases. See Miller v.

Ohio Bur. of Sentence Computation, 10th Dist. Franklin No. 17AP456; State ex rel. Miller

v. Bower, 156 Ohio St.3d 455, 2019-Ohio-1623, 129 N.E.3d 389, ¶ 7. The Tenth District

dismissed the action, and the Ohio Supreme Court affirmed. Id.

{¶ 16} On June 7, 2019, Miller filed a motion for de novo sentencing or correction

of sentence in the trial court in this case. Miller appeared to argue that, pursuant to R.C.

2929.41(A), the 1986 Montgomery County sentence was required to be served

concurrently to all of his state and federal sentences. Miller cited to the rule of lenity and

to State v. Polus, 145 Ohio St.3d 266, 2016-Ohio-655, 48 N.E.3d 553, which held that the

trial court did not have authority under R.C. 2929.41(B)(1) to order a misdemeanor jail

sentence to be served consecutively to a felony prison sentence.

{¶ 17} The State responded to Miller’s motion, noting that R.C. 2929.41 has been

amended since Miller’s 1986 conviction and that, in 1986, the statute allowed a sentence
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of imprisonment to be served consecutively to another sentence of imprisonment “[w]hen

the trial court specifies that it is to be served consecutively[.]” State’s 6/20/2019 Memo,

citing former R.C. 2929.41(B)(1), attached as Ex. #6. The State further argued that the

cases cited by Miller were inapplicable to his case.

{¶ 18} On September 10, 2019, the trial court overruled Miller’s motion for a de

novo sentencing and to correct the judgment.

{¶ 19} Miller appeals from the trial court’s ruling. His assignments of error raise

that the trial court “rendered a consecutive sentence that was contrary to law” and that

the trial court abused its discretion in imposing consecutive sentences, because the

consecutive portion of his July 17, 1986 sentence “violat[ed] not only plea contract

concurrent scheme, but violat[e]d the United States Due Process Clause and its Equal

Protection component[.]”

{¶ 20} Miller’s arguments on appeal concern the interplay between his July 1986

judgment in this Montgomery County case, which ordered that his sentence be served

consecutively to his federal sentences, and his sentences in his two prior Ohio cases, i.e.,

his 1966 Montgomery County conviction and his 1986 Hamilton County conviction.

Miller argues that, because the 1986 Montgomery County judgment entry was silent as

to whether that sentence was to be served concurrently with or consecutively to his prior

Ohio sentences, the prior state sentences were required to be served concurrently. As

in the trial court, Miller argues that any other interpretation is contrary to R.C. 2929.41(A)

and the rule of lenity.

{¶ 21} Miller’s arguments are barred by res judicata. “Pursuant to the doctrine of

res judicata, a valid final judgment on the merits bars all subsequent actions based on
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any claim arising out of the transaction or occurrence that was the subject matter of the

previous action.” State v. Collins, 2d Dist. Montgomery No. 25612, 2013-Ohio-3645, ¶ 9,

citing Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995). The res

judicata bar applies to any issue that was raised or could have been raised in a criminal

defendant's prior appeal from his conviction or any other final appealable order. See

State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). Miller has previously

challenged the calculation of his Ohio sentences, both in the trial court in this case and in

other courts. Miller did not appeal the trial court’s prior rulings related to the same issues.

Miller cannot raise the same issues again in this appeal.

{¶ 22} Moreover, we find nothing in Miller’s 1986 Montgomery County sentence

that would render that sentence void and subject to resentencing. The Ohio Supreme

Court has recently clarified that “[a] sentence is void when a sentencing court lacks

jurisdiction over the subject-matter of the case or personal jurisdiction over the accused.”

State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 42 (addressing

the improper imposition of postrelease control); see also State v. Henderson, Ohio Slip

Opinion No. 2020-Ohio-4784, __ N.E.3d __, ¶ 27. “Sentences based on an error are

voidable, if the court imposing the sentence has jurisdiction over the case and the

defendant, including sentences in which a trial court fails to impose a statutorily mandated

term.” Henderson at ¶ 27.

{¶ 23} Miller was sentenced in Case No. 1984-CR-1853 for felony offenses

committed in Huber Heights, Montgomery County. Miller has not claimed that the trial

court lacked subject matter jurisdiction or personal jurisdiction over him, and the record

supports that the trial court did. Miller’s sentence was therefore voidable, and he was
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required to challenge the validity of his sentence on direct appeal. See also State ex rel.

Miller, 156 Ohio St.3d 455, 2019-Ohio-1623, 129 N.E.3d 389, at ¶ 13 (“Miller could have

argued on direct appeal that his sentences should be concurrent rather than

consecutive.”).

{¶ 24} Although Miller appeals from the denial of his motion for resentencing or to

correct his sentence, the basis for his motion was his apparent disagreement with

ODRC’s determination as to whether his Ohio sentences run concurrently or

consecutively. A motion in this criminal case is not the proper avenue for challenging

the ODRC’s calculation of his sentence expiration date. See State v. Armstrong, 2d Dist.

Montgomery No. 27413, 2018-Ohio-191, ¶ 8; State v. Johnson, 2d Dist. Montgomery No.

28162, 2019-Ohio-1801, ¶ 6.

{¶ 25} Finally, in its appellate brief, the State asserts that Miller’s July 1986

sentence was required to be served consecutively to his prior Ohio sentences, because

Miller was on parole when he committed the Huber Heights robbery. The State cites to

R.C. 2929.41(B)(3) as it existed in July 1986, which provided that a sentence of

imprisonment shall be served consecutively to another sentence of imprisonment “when

it is imposed for a new felony committed by a probationer, parolee, or escapee[.]”

{¶ 26} Former R.C. 2929.41(B)(3) was repealed as part of Am.Sub.S.B. 2, which

was effective on July 1, 1996. However, it is well established that the provisions of

Senate Bill 2 do not apply to persons who were sentenced prior to July 1, 1996. State

ex rel. Maynard v. Corrigan, 81 Ohio St.3d 332, 333, 691 N.E.2d 280 (1998). In addition,

the Ohio Supreme Court held that “the refusal of the General Assembly to retroactively

apply the sentencing provisions of Am.Sub.S.B. No. 2 to persons convicted and
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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.” Id.,

citing State ex rel. Lemmon v. Ohio Adult Parole Auth., 78 Ohio St.3d 186, 188, 677

N.E.2d 347, 349 (1997).

{¶ 27} The language of former R.C. 2929.41(B) suggests that Miller’s arguments

about the consecutive nature of his sentences may lack merit. As to Miller’s arguments

regarding the plea agreement, we further note that “[a] county prosecuting attorney does

not have authority to enter into a plea agreement on behalf of the state for crimes

committed wholly outside the county in which the prosecuting attorney has been elected.”

State v. Billingsley, 133 Ohio St.3d 277, 2012-Ohio-4307, 978 N.E.2d 135, syllabus.

{¶ 28} However, we need not reach the merits of Miller’s arguments. As stated

above, Miller’s arguments are barred by res judicata, the trial court had no basis to

resentence him, and this is not the proper forum to challenge the calculation of his

maximum sentence.

{¶ 29} Miller’s assignments of error are overruled.

{¶ 30} The trial court’s judgment will be affirmed.

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DONOVAN, J. and WELBAUM, J., concur.

Copies sent to:

Mathias H. Heck, Jr.
Lisa M. Light
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Jerry Miller
Hon. Richard Skelton