PAUL PFEIFER
Ohio court deals with concurrent sentences

March 27th, 2014    Author: Administrator    Filed Under: Opinion

Paul Pfeifer

By Paul Pfeifer

There are times when cases come before us – the Ohio Supreme Court – that have their beginnings many years before we see them. This is such a case.

Jerome Thompson pled guilty to aggravated robbery and felonious assault – in 1979. At that time, he was given a sentence of 4 to 25 years for the robbery and 2 to 15 years for the assault. The sentences were to be served concurrently, rather than consecutively.

Despite the potential for spending decades in prison, Thompson was paroled just a little more than a year later, in October 1980. But by March 1982, he had been declared a parole violator at large, and in March 1983, he was back in prison.

Later that year, Thompson pled guilty to two aggravated robberies and he was sentenced to terms of 5 to 25 years for each robbery. These sentences were to be served concurrently.

In 1983 and again in 1985, he pled guilty to two offenses of involuntary manslaughter. Each of those convictions carried a sentence of 6 to 25 years. The first involuntary-manslaughter term was ordered to be served concurrently with the aggravated-robbery sentence, and the second involuntary-manslaughter conviction was ordered to be served concurrently with the first.

The issue in this case was whether the sentences imposed on Thompson after he had violated parole were to be served concurrently or consecutively with his original 1979 sentence.

Thompson argued that all the sentences were to be served concurrently, and that his maximum aggregate sentence of 25 years has expired. He argued that he should have been released on May 4, 2010.

The warden of the Grafton Correctional Institution, Bennie Kelly, argued that the sentences imposed for the convictions after Thompson’s parole must – by law – be served consecutively to his original sentence, thus making his release date May 4, 2029.

When Thompson turned to the Court of Appeals for the Ninth District, that court agreed with Warden Kelly and concluded that the sentencing law in place at the time of Thompson’s first incarceration required the sentences to be served consecutively. Next, Thompson filed an appeal with our court for a final review of his case.

In making his argument, Warden Kelly relied on the version of the sentencing law that was in force at the time Thompson was sentenced. That law required that sentences for new felonies committed while on parole were to be served consecutively to the sentence for which a defendant was on parole.

Thompson argued that the trial court had imposed concurrent sentences and that the warden cannot rely on the sentencing law to disregard the court’s order. Thompson also argued that the language of the sentencing law was a directive to courts and confers no authority on the warden to correct a mistake made by the sentencing court.

The version of the sentencing law that was in effect in 1983 and 1985 stated that sentences for crimes committed while on parole must be served consecutively to sentences for crimes committed before the parole violation.

The law specifically stated that a sentence of imprisonment “shall be served consecutively to any other sentence of imprisonment,” when “it is imposed for a new felony committed by the probationer, parolee, or escapee.”

Additionally, in a 1983 case called State v. Bates, our court established that a positive act on the part of the sentencing court is required for sentences to run concurrently. Our court stated: “inasmuch as making sentences for different crimes run concurrently is in the nature of a reward to the convict,…it follows that a positive act is required on the part of the sentencing court to cause sentences to run concurrently; and….if the entry is silent as to how sentences shall run, it is presumed such sentences will run consecutively.”

Thus, the sentencing law at the time required that Thompson’s sentences be served consecutively. But even if it did not, the judgment entries – the written order of the sentencing judges – do not support Thompson’s arguments. Because the courts that imposed sentences for crimes committed while Thompson was on parole did not specifically state that the sentences were to run concurrently with Thompson’s 1979 sentence, the latter sentences were to be served consecutively to the earlier sentence.

Thompson was originally sentenced on April 13, 1979, to 4 to 25 years for aggravated robbery and 2 to 15 years for felonious assault. His first sentence for crimes committed while he was on parole was in Cuyahoga County. It was dated May 12, 1983, and was 5 to 25 years for aggravated robbery. the second sentence was also in Cuyahoga County and was also dated May 12, 1983. Likewise, that sentence was for 5 to 25 years for aggravated robbery. Both sentences were to run concurrently.

But here’s the key point: Neither judgment entry indicated that the sentence was to run concurrently with Thompson’s 1979 sentence or any other sentence.

The 1983 sentences refer only to each other and, under the sentencing law in effect at the time and in accordance with our decision in Bates, the sentences therefore must run consecutively to Thompson’s original sentence. Thus, they added a term of 5 to 25 years to Thompson’s total sentence.

On November 28, 1983, Thompson was sentenced a third time for crimes committed while on parole, for involuntary manslaughter in Cuyahoga County, “to run concurrent with sentence previously imposed.” His final sentence, for involuntary manslaughter in Mahoning County, was imposed March 29, 1985, “to be served concurrently” with the Cuyahoga County sentence “currently being served.”

The last two sentencing entries were perhaps more ambiguous. But because the first two sentences for crimes committed while Thompson was on parole unambiguously run concurrently only with each other, they were consecutive to his original sentence and added 5 to 25 years to the sentence imposed on Thompson prior to his parole.

Therefore, by a seven-to-zero vote, we affirmed the court of appeals’ judgment that the sentences must be served consecutively, thus making Thompson’s scheduled release date May 4, 2029.

Editor’s Note: The case referred to is: State ex rel. Thompson v. Kelly, 137 Ohio St3d, 2013-Ohio-2444. Case No. 2013-0275. Decided June 18, 2013. Opinion Per Curiam.

Paul Pfeifer is an Ohio Supreme Court Justice.

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