Opinion
No. 90-1769
Submitted March 12, 1991 —
Decided May 29, 1991.
Criminal law — Sentencing — Time off for good behavior — Prisoner who has yet to begin his sentence is subject to new criteria of R.C. 2967.19.
APPEAL from the Court of Appeals for Franklin County, No. 89AP-742.
On May 14, 1986, appellant, Johnny Ray Fuller, was convicted of murder with a gun specification. He was sentenced that day to the Ohio State Reformatory for a period of fifteen years to life for the murder conviction and to an additional three-year term of actual incarceration for the use of a firearm, pursuant to R.C. 2929.71.
At the time of sentencing appellant would have been entitled to twelve days per month good time credit pursuant to R.C. 2967.19(A). However, pursuant to R.C. 2929.71(A)(2), appellant was first required to serve the three-year gun sentence before serving his fifteen-years-to-life sentence. This three-year sentence cannot be reduced by good time credit. R.C. 2929.71(D) (2). Accordingly, appellant's fifteen-years-to-life sentence did not begin until May 14, 1989.
Appellant filed a mandamus action in the court of appeals seeking to compel appellee, George Wilson, Director of Rehabilitation and Correction, to apply appellant's good time credit at the rate of twelve days per month, the rate in effect at the time he was sentenced. The court of appeals denied the writ.
The cause is before this court upon an appeal as of right.
Johnny Ray Fuller, pro se.
Prior to the time appellant began to serve his fifteen-years-to-life sentence, but while he was serving his mandatory three-year term of actual incarceration for his firearm specification conviction, R.C. 2967.19 (A) was amended. (142 Ohio Laws, Part II, 3115, effective November 1, 1987.) It now provides that all prisoners are to receive a thirty percent reduction regardless of the type of institution in which they are incarcerated.
Appellant argues that since he received the sentence before the amendment of R.C. 2967.19(A), his good time credit should be calculated under the prior statute.
The legislative intent is made clear in R.C. 2967.192(B), which provides in pertinent part:
"* * * However, if on November 1, 1987, the person is serving one or more terms of imprisonment for offenses committed before November 1, 1987, the provisions of section 2967.19 of the Revised Code, as amended effective November 1, 1987, apply only in relation to the portion of the term or terms served on or after November 1, 1987, and the diminution of the person's minimum or definite term for good behavior or for obeying the rules of the institution in which he is incarcerated in relation to the portion of the term or terms served prior to November 1, 1987, shall be governed by division (A) of this section."
Appellant's situation is analogous to the one contemplated above. If a prisoner's sentence overlaps into the period in which the new statute takes effect, that prisoner is subject to the new good time credit. By analogy, if a prisoner whose sentence has already begun is now subject to the new criteria for calculating good time credit, then appellant, who had yet to begin his sentence of fifteen years to life, is also subject to the new criteria.
Accordingly appellant has failed to prove "* * * `(1) that he has a clear legal right to the relief prayed for, (2) that respondents are under a clear legal duty to perform the acts, and (3) that relator has no plain and adequate remedy in the ordinary course of the law.' * * *" (Citations omitted.) State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 29, 6 OBR 50, 51, 451 N.E.2d 225, 227.
The judgment of the court of appeals denying the writ is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.