Bonds v. Ohio Dept. of Rehab. & Corr.

• Decision Date: 03 December 1996
• Docket Number: No. 96API04-516,96API04-516
• Citation: 687 N.E.2d 300,116 Ohio App.3d 144
• Parties: BONDS, Appellant, v. DEPARTMENT OF REHABILITATION AND CORRECTION. Tenth District, Franklin County
• Court: Ohio Court of Appeals

Page 144

116 Ohio App.3d 144

687 N.E.2d 300

BONDS, Appellant, v. DEPARTMENT OF REHABILITATION AND CORRECTION.

No. 96API04-516.

Court of Appeals of Ohio,

Tenth District, Franklin County.

Decided Dec. 3, 1996.

Dean A. Young, Akron, and Mark W. Ruf, Cleveland, for appellant.

Betty D. Montgomery, Attorney General, and Susan M. Sullivan, Assistant Attorney General, for appellee.

LAZARUS, Judge.

Plaintiff-appellant, Beulah Bonds, appeals from a judgment of the Court of Claims in favor of defendant-appellee, the Ohio Department of Rehabilitation and Correction ("DRC"). We affirm for the reasons that follow.

On March 17, 1992, Walter Howard Sayre burglarized appellant's Summit County home and raped her. Appellant alleges that her injuries were proximately caused by the negligence of DRC, which released Sayre from the Lorain Correctional Institution ("LCI") on February 21, 1992. Appellant alleges that releasing Sayre was negligent because DRC had received and was aware of a detainer from the state of Florida and because DRC miscalculated Sayre's release date and released him early. The issue of liability was tried on stipulated facts and exhibits. The court found that DRC owed appellant no duty and that DRC correctly calculated Sayre's release date. Appellant asserts two assignments of error:

"I. The trial court erred as a matter of law in not finding that there was an intervening justification for Walter Sayre's confinement because there was a valid demand for extradition pursuant to R.C. 2963.03, Florida notified Ohio of its intent to extradite Sayre, and the waiver of extradition waived the procedural requirements for extradition.

"II. The trial court erred as a matter of law in holding that the Lorain Correctional Institution properly calculated the time for good behavior."

On October 21, 1991, Akron police arrested Sayre for drug trafficking and conducted a "wants and warrants" search on the nationwide Law Enforcement Automated Data System ("LEADS"). As a result of this computer inquiry, the Osceola County, Florida, Sheriff's Office on October 30, 1991, sent Akron police a teletype identifying Sayre by name and Social Security Number. The text of the teletype read:

"WE HOLD ACTIVE WARRANT # CR91717 FTA/CTI FORGERY, CTI UTTERING A FORGERY. THERE IS NO BOND. PLEASE PLACE A HOLD FOR THIS AGENCY AND ADVISE WHEN HOLD HAS BEEN PLACED. WE WILL EXTRADITE. PLEASE ACKNOWLEDGE RECEIPT OF THIS TELETYPE. THANK YOU."

An Akron police detective acknowledged the teletype and obtained a fugitive warrant compelling Sayre's appearance in court for purposes of commencing extradition proceedings.

On December 19, 1991, Sayre appeared before the Akron Municipal Court and in the presence of his attorney signed a "waiver of extradition" form. By signing the form, Sayre consented to return to Osceola County, Florida, without formal extradition proceedings. On the same form, the judge signed the following order:

"The above named fugitive having been arraigned before this Court and having been informed of his rights to demand extradition and the said fugitive having indicated a willingness to return to the State of Florida and having excuted [sic ] a waiver of extradition now, therefore, it is ordered and directed that the said fugitive be delivered and surrendered to the authorized agent of the demanding State."

That same day, Akron police sent the Osceola County Sheriff the following teletype:

"REF: Sayre, Walter H DOB 111470, subject appeared in court this date and signed a waiver of extradition. Information will be forwarded to the Summit Co. S.O. to be placed in his file. Subject still has felony case pending. Futher [sic ] communication ref subject should be through the Summit Co S.O..[sic ] If we may be of further assistance please advise."

On December 26, 1991, Sayre pled guilty in the Summit County Court of Common Pleas to trafficking in marijuana. On January 22, 1992, while still in the custody of the Summit County Sheriff, Sayre was sentenced to six months in LCI. The court's journal entry also ordered that Sayre be given credit for time served. The Summit County Sheriff issued a "Verification of Booking Date" form showing that Sayre had served ninety-nine days in jail, from October 21, 1991 to January 27, 1992.

On January 27, 1992, the Summit County Sheriff conducted another LEADS search to verify the status of any pending charges against Sayre. The Osceola County Sheriff sent the Summit County Sheriff a teletype reading: "IMMED CONFIRM WARRANT AND EXTRADITION WITH ORI." That same day, the Summit County Sheriff delivered custody of Sayre to DRC at LCI and also delivered copies of the following documents, which DRC employees at LCI reviewed and placed in Sayre's master file: the October 30, 1991 teletype from Osceola County; the form bearing the waiver of extradition and court order; the court's judgment entry of conviction and sentence; the verification of booking form; and the January 27, 1992 teletype from Osceola County. Also on January 27, 1992, DRC determined Sayre's release date to be February 21, 1992, based on the following calculation:

                      Six-month definite sentence                                   182.5  days
                      Less time off for good behavior pursuant to R.C. 2967.19   -  54.75
                        (182.5 x 30%)
                      Less time served in Summit County Jail                     -  99
                                                                                    -----
                      Time to be served                                             28.75  days
                

The twenty-eighth day from January 27, 1992, was Sunday, February 23, 1992. Because DRC's policy was to not release prisoners during a weekend, Sayre's release date was Friday, February 21, 1992.

DRC released Sayre as scheduled on February 21, 1992. DRC did not treat the documents it had received as constituting a detainer, did not prepare a Form 940-1, and had no further contact with the authorities in Florida, the Akron police, the Summit County Sheriff, or the Akron Municipal Court. On March 17, 1992, Sayre burglarized appellant's Summit County home and raped her.

In the second assignment of error, appellant argues that if DRC had calculated Sayre's release date correctly, he would not have been released until March 26, 1992, and he would have been in prison on the day that he attacked appellant. Appellant argues that March 26, 1992, was the correct release date because Sayre should have been credited with twenty-five days for good time rather than 54.75 days: appellant argues that Sayre's good time should have been calculated as thirty percent of 83.5 days (Sayre's 182.5-day sentence less ninety-nine days time served).

Sayre's good time was properly calculated based on his sentence. R.C. 2967.19 provides:

"(A) Except as provided in division (F) of this section, a person confined in a state correctional institution is entitled to a deduction from his minimum or definite sentence of thirty per cent of the sentence, prorated for each month of the sentence during which he faithfully has observed the rules of the institution. Any deduction earned under this division shall be credited to the person pursuant to division (E) of this section.

" * * *

"(E) The thirty per cent diminution of a prisoner's sentence that is provided in divisions (A), (B), and (C) of this section and the diminution of a prisoner's sentence that is provided in division (D) of this section shall be prorated on a monthly basis and shall be credited to each prisoner at the expiration of every calendar month. * * * " (Emphasis added.)

R.C. 2967.19 provides that good time is calculated based on the sentence, not the sentence less time served. See State ex rel. Mishler v. Clark (Apr. 18, 1978), Franklin App. No. 77AP-826, unreported (decided under prior version of R.C. 2967.19). Therefore, DRC correctly calculated Sayre's good time. The second assignment of error is not well taken.

Under the first assignment of error, appellant argues that DRC was negligent per se for violating constitutional, statutory, and administrative-rule duties arising from the detainer filed by the Osceola County Sheriff and Sayre's waiver of extradition.

The doctrine of negligence per se is inapplicable in this case. A court applies the doctrine by recognizing a statute or administrative rule as fixing a standard of conduct deviation from which constitutes negligence. See Prosser & Keeton, Law of Torts (5 Ed.1984) 220, 230, Section 36. In other words, the statute or rule establishes the standard of conduct, thereby replacing in most cases the "reasonable person" standard.

The Supreme Court of Ohio described the doctrine of negligence per se in Hurst v. Ohio Dept. of Rehab. & Corr. (1995), 72 Ohio St.3d 325, 327, 650 N.E.2d 104, 106:

"We have held that '[w]here there exists a legislative enactment commanding or prohibiting for the safety of others the doing of a specific act and there is a violation of such enactment solely by one whose duty it is to obey it, such violation constitutes negligence per se.' Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367, 53 O.O. 274, 119 N.E.2d 440, paragraph three of the syllabus.

"However, where the duty is defined 'only in abstract or general terms, leaving to the jury the ascertainment and determination of reasonableness and correctness of acts and conduct under the proven conditions and circumstances, the phrase negligence per se has no application.' Swoboda v. Brown (1935), 129 Ohio St. 512, 523, 2 O.O. 516, 521, 196 N.E. 274, 279. In Eisenhuth we further explained that where the duty prescribed by the enactment is so specific that the only determination necessary by the jury is to find but a single fact, a violation of the statute, then there is negligence per se. Conversely, if the jury must determine negligence from a consideration of several facts and circumstances, then negligence per se is inapplicable. Id., 161 Ohio St. at 373-374, 53 O.O. at 277-278, 119 N.E.2d at 444."

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