Morgan v. Ohio Adult Parole Auth.
| Decision Date | 23 February 1994 |
| Docket Number | No. 93-875,93-875 |
| Citation | 68 Ohio St.3d 344,626 N.E.2d 939 |
| Parties | MORGAN, Appellant, v. OHIO ADULT PAROLE AUTHORITY et al., Appellees. |
| Court | Ohio Supreme Court |
Mancino, Mancino & Mancino and Paul Mancino, Jr., Cleveland, for appellant.
Lee I. Fisher, Atty. Gen., and Donald A. Cataldi, Asst. Atty. Gen., for appellees.
Appellant contends that based upon a construction of the applicable sentencing statutes, he is entitled to be released from prison because he has already served his maximum possible sentence. The pertinent statutes follow.
Former R.C. 2929.71(A)(2) provided:
" * * * The three-year term of actual incarceration imposed pursuant to this section shall be served consecutively with, and prior to, the life sentence or the indefinite term of imprisonment." (140 Ohio Laws, Part I, 601.)
Former R.C. 2929.41 provided:
Initially, we note that habeas corpus is available where an individual's maximum sentence has expired and he is being held unlawfully. Hoff v. Wilson (1986), 27 Ohio St.3d 22, 27 OBR 440, 500 N.E.2d 1366; see Frazier v. Stickrath (1988), 42 Ohio App.3d 114, 536 N.E.2d 1193. Appellant's contention involves statutory construction of the aforementioned statutes. In construing a statute, a court's paramount concern is the legislative intent in enacting the statute. State v. S.R. (1992), 63 Ohio St.3d 590, 594, 589 N.E.2d 1319, 1323. In determining legislative intent, the court first looks to the language in the statute and the legislature's purpose. Id. at 594-595, 589 N.E.2d at 1323. Words used in a statute must be taken in their usual, normal or customary meaning. See R.C 1.42; S.R.at 595, 589 N.E.2d at 1323, citing State v. Cravens (1988), 42 Ohio App.3d 69, 72, 536 N.E.2d 686, 689.
By enacting R.C. 2929.71, the General Assembly sought to deter and punish both the use and possession of firearms by those who commit crimes. The public policy behind this enactment is apparent: a criminal with a gun is both more dangerous and harder to apprehend than one without a gun. State v. Powell (1991), 59 Ohio St.3d 62, 63, 571 N.E.2d 125, 127. R.C. 2929.41(C)(3) manifestly provides that the three-year term of actual incarceration imposed by R.C. 2929.71 "shall be served first," i.e., prior to any indefinite sentence. As noted by the court below, appellant's indefinite sentence of one and one-half to five years was tolled until his three-year sentence for the firearm specification was completed. Thus, since appellant's three-year term for his firearm-specification conviction did not expire until 1990, his indefinite sentence of one and one-half to five years did not begin until 1990. As appellees aptly note, appellant cites no authority that has adopted his novel construction of R.C. 2929.41, which would merge his three-year term with the one-and-one-half-year minimum term and have them served concurrently rather than consecutively with a resultant sentence of four-and-one-half to five years.
Appellant instead relies on R.C. 2901.04(A), which provides that the criminal statutes...
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