[Cite as Dailey v. Dept. of Rehab. & Corr., 2018-Ohio-3500.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

James Dailey, : 

 Plaintiff-Appellant, : 

 No. 18AP-21 

v. : (Ct. of Cl. No. 2016-00928)

Ohio Department of Rehabilitation : (REGULAR CALENDAR) 

and Correction, 

 : 

 Defendant-Appellee. 

 : 

 

D E C I S I O N 

Rendered on August 30, 2017 

 

On brief: James Dailey, pro se. 

On brief: Michael DeWine, Attorney General, and Lee Ann 

Rabe, for appellee. 

 

APPEAL from the Court of Claims of Ohio 

SADLER, J. 

{¶ 1} Plaintiff-appellant, James Dailey, appeals from a judgment of the Court of 

Claims of Ohio, in favor of defendant-appellee, Ohio Department of Rehabilitation and 

Correction ("ODRC"). For the reasons that follow, we affirm. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} Appellant is an inmate at ODRC's Marion Correctional Institution. Appellant 

was first convicted of several felonies in 1984 and sentenced to an indefinite prison term of 

four to fifteen years with a one year specification which was to be served consecutively to 

the indefinite term. ODRC calculated a sentence expiration date of December 21, 1999, but 

appellant was released on parole in 1990. 
No. 18AP-21 2 

{¶ 3} Appellant was again incarcerated in 1990 after being convicted on new felony 

charges and sentenced to an aggregate prison term of two to ten years. Pursuant to former 

R.C. 2929.41, appellant was ordered to serve his prison term for the 1990 convictions 

consecutive to the prior indefinite sentence from which he had been paroled. ODRC 

calculated a new sentence expiration date of June 6, 2009, but appellant was released on 

parole in 1993. 

{¶ 4} In 1994, appellant was convicted and sentenced on another felony for which 

he received an indefinite prison sentence of two to five years. Pursuant to former R.C. 

2929.41(B)(3), appellant was ordered to serve this latest prison term consecutive to the 

prior indefinite terms. Following his sentence for the 1994 convictions, ODRC calculated a 

sentence expiration date in 2014. 

{¶ 5} Appellant was paroled in 1999, but he was again convicted of multiple 

felonies in three separate cases in 2000. The new convictions violated the terms of 

appellant's parole. The sentencing court imposed an aggregate prison term of five years for 

the convictions. Two of the convictions were for violations of R.C. 2921.331, "[f]ailure to 

comply with order or signal of police officer," a felony of the third degree. The sentencing 

court ordered appellant to serve the prison terms for the felony failure to comply 

convictions, one year and four years respectively, concurrent to the other convictions and 

concurrent with one another. The sentencing entry was silent as to whether appellant was 

to serve the prison terms for the failure to comply convictions concurrently or consecutively 

to the unexpired sentences for which appellant was on parole. ODRC, applying former R.C. 

2921.331(D), calculated appellant's sentence expiration date based on the statutory 

mandate that the offender serve prison terms imposed for felony failure to comply 

convictions "consecutively to any other prison term or mandatory prison term imposed 

upon the offender." Former R.C. 2921.331(D). As a result, ODRC calculated appellant's 

new release date as June 20, 2019. 

{¶ 6} Appellant was released on parole in 2005. In 2007, appellant was convicted 

and sentenced in three separate cases to an aggregate prison term of five years. In 

Cuyahoga County C.P. No. CR-07-491317-A, appellant was convicted of felony failure to 

comply for which the court imposed a prison term of four years to run consecutive to a one 

year prison term for receiving stolen property but concurrent to the convictions in the other 
No. 18AP-21 3 

two cases. The sentencing entry was silent as to whether the prison term for the conviction 

of felony failure to comply was to run concurrently or consecutively to the unexpired 

sentences for which appellant was paroled. ODRC, applying former R.C. 2921.331(D), ran 

appellant's sentence for the felony failure to comply conviction consecutive to the unexpired 

prison terms for which appellant had been paroled and calculated a sentence expiration 

date of June 8, 2023. 

{¶ 7} On December 22, 2016, appellant filed a complaint in the Court of Claims 

alleging ODRC has continued to confine him beyond his lawful prison term. Appellant's 

complaint alleges that his sentence expired on June 21, 2014 and that he has been falsely 

imprisoned by ODRC since that date. On March 6, 2017, appellant, with leave of court, filed 

an amended complaint alleging essentially the same operative facts. 

{¶ 8} On September 22, 2017, appellant filed a motion for summary judgment. 

ODRC also filed a motion for summary judgment on September 20, 2017. ODRC's motion 

is supported by the affidavit of Carla J. Black, who is employed by ODRC as the Records 

Sentence Computation Auditor/Release Supervisor, Bureau of Sentence Computation. 

True and accurate copies of sentencing entries for each of appellant's convictions are 

attached to the affidavit as exhibits. In her affidavit, Black avers, in relevant part, as follows: 

3. In the course of my job duties, I am responsible for 

reviewing sentencing information from courts and calculating 

release dates for inmates * * *. 

* * * 

20. On August 3, 2000, [appellant] was admitted under 

Inmate No. 395-024. At that time, his parole was also revoked 

on [the prison term for the 2000 convictions]. Additionally, 

pursuant to R.C. 2921.331, the sentences [appellant] received 

for Failure to Comply had to be calculated consecutively to the 

parole violation sentences. Upon review of the sentencing 

orders [in the 2000 cases], and application of the requirements 

of R.C. 2921.331, [appellant's] sentence expiration was 

calculated to be June 20, 2019. 

* * * 

24. On March 8, 2007, [appellant] was admitted under Inmate 

No. 522-949. At that time, his parole was also revoked on [the 
No. 18AP-21 4 

prison term for the 2000 convictions]. Again pursuant to R.C. 

2921.331, [appellant's] sentences for Failure to Comply had to 

be calculated consecutively to his other sentences. Upon 

review of the sentencing orders [in the 2007 cases], and 

application of the requirements of R.C. 2921.331, [appellant's] 

sentence expiration was calculated to be June 8, 2023. 

(Black Aff. at 1, 3, 4, attached to ODRC's Mot. for Summ. Jgmt.) 

{¶ 9} On December 8, 2017, the Court of Claims issued a decision granting ODRC's 

motion for summary judgment and denying appellant's motion. The Court of Claims 

determined that because the sentencing entries issued in the 2000 and 2007 cases were 

silent as to whether appellant was to serve the prison terms for the felony failure to comply 

convictions concurrently or consecutively to the prior sentences for which appellant had 

been paroled, ODRC had the authority to apply the mandatory consecutive sentencing 

provision in former R.C. 2921.331(D) in calculating appellant's sentence expiration date. 

{¶ 10} Appellant timely appealed to this court from the decision of the Court of 

Claims. 

II. ASSIGNMENT OF ERROR 

{¶ 11} Appellant sets forth a single assignment of error as follows: 

THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED 

TO THE PREJUDICE OF PLAINTIFF-APPELLANT WHEN 

GRANTING SUMMARY JUDGMENT IN FAVOR OF 

DEFENDANT. 

III. STANDARD OF REVIEW 

{¶ 12} Summary judgment is proper only when the party moving for summary 

judgment demonstrates that (1) no genuine issue of material fact exists, (2) the moving 

party is entitled to judgment as a matter of law, and (3) reasonable minds could come to 

but one conclusion and that conclusion is adverse to the party against whom the motion for 

summary judgment is made, that party being entitled to have the evidence most strongly 

construed in that party's favor. Civ.R. 56(C); State ex rel. Grady v. State Emp. Relations 

Bd., 78 Ohio St.3d 181, 183 (1997). 

{¶ 13} Appellate review of a summary judgment motion is de novo. Johnston v. 

State, 10th Dist. No. 12AP-1022, 2016-Ohio-4761, ¶ 7, citing Helfrich v. Allstate Ins. Co., 

10th Dist. No. 12AP-559, 2013-Ohio-4335, ¶ 7. " ' "When reviewing a trial court's ruling on 
No. 18AP-21 5 

summary judgment, the court of appeals conducts an independent review of the record and 

stands in the shoes of the trial court." ' " Johnston at ¶ 7, quoting Helfrich at ¶ 7, quoting 

Mergenthal v. Star Banc Corp., 122 Ohio App.3d 100, 103 (12th Dist.1997). 

IV. LEGAL ANALYSIS 

{¶ 14} The facts of this case are not in dispute. Rather, the parties disagree as to the 

applicable legal rule. In appellant's assignment of error, appellant argues the Court of 

Claims erred when it granted ODRC's motion for summary judgment and denied 

appellant's motion for summary judgment because ODRC did not have the authority to 

require appellant to serve the sentence imposed for the 2000 and 2007 convictions of 

felony failure to comply consecutive to the sentences for which he was on parole. We 

disagree. 

{¶ 15} The state may be held liable for false imprisonment of inmates in its custody. 

McKinney v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 09AP-960, 2010-Ohio-2323, ¶ 8. 

False imprisonment occurs when a person confines another intentionally without lawful 

privilege and against his consent within a limited area for any appreciable time. Jones v. 

Ohio Dept. of Rehab. & Corr., 10th Dist. No. 16AP-138, 2016-Ohio-5425, ¶ 8, citing Griffin 

v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 10AP-733, 2011-Ohio-2115, ¶ 20, citing 

Bennett v. Ohio Dept. of Rehab. & Corr., 60 Ohio St.3d 107, 109 (1991). ODRC may be 

found liable for the tort of false imprisonment if it intentionally continues to confine an 

inmate despite having knowledge that the privilege initially justifying that confinement no 

longer exists. Jones at ¶ 8, citing Baker v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 

11AP-987, 2012-Ohio-1921, ¶ 12, citing Bennett at 109. Accordingly, "the elements of an 

inmate's claim of false imprisonment are: (1) expiration of the lawful term of confinement, 

(2) intentional confinement after the expiration, and (3) knowledge that the privilege 

initially justifying the confinement no longer exists." Jones at ¶ 8, citing Griffin at ¶ 19,

quoting Corder v. Ohio Dept. of Rehab. & Corr., 94 Ohio App. 3d 315, 318 (10th Dist.1994). 

{¶ 16} In granting summary judgment for ODRC, the Court of Claims relied on the 

rule of law articulated by the Supreme Court of Ohio in State ex rel. Thompson v. Kelly, 137 

Ohio St.3d 32, 2013-Ohio-2444. In Thompson, the offender, Thompson, was convicted in 

1985 and sentenced to a concurrent term of imprisonment for several offenses committed 

while he was on parole. The sentencing entry, however, did not state that Thompson was 
No. 18AP-21 6 

to serve his sentence concurrently with the 1979 sentence for which Thompson had been 

paroled. The sentencing entry was silent with regard to the prior unexpired sentence. Some 

years later, Thompson, believing his sentence had expired, sought a writ of habeas corpus 

compelling the warden to release him from custody. The warden argued that the version of 

R.C. 2929.41(B)(3) in effect at the time Thompson was sentenced required sentences for 

new felonies committed while on parole to be served consecutively to the sentence for which 

he was on parole. Accordingly, the warden maintained Thompson's sentence had not yet 

expired. The Supreme Court agreed with the warden. In affirming the Court of Appeals 

judgment denying the writ, the Supreme Court stated: 

[T]he statute at the time required that Thompson's sentences 

be served consecutively. But even if it did not, the judgment 

entries do not support Thompson's arguments. Because the 

courts imposing the 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 later sentences were to be served consecutively to 

the earlier sentence. 

Id. at ¶ 10. 

{¶ 17} Thompson stands for the proposition that when a sentencing entry does not 

state the prison term being imposed on the offender is to run concurrently with another 

sentence imposed on the offender and the applicable statutory law mandates consecutive 

service, ODRC has the authority to apply the statutory law in determining sentence 

expiration. See Young v. Bunting, 3d Dist. No. 9-13-46, 2014-Ohio-3671, ¶ 13, quoting 

Thompson at ¶ 10 ("where the court imposing the sentences did not specifically address 

how the sentences were to run and the statutory construction required them to be served 

'consecutively to the earlier sentence,' the statute prevailed and the defendant had to serve 

the sentences consecutively"). In this instance, the 2000 and 2007 sentencing entries do 

not state whether appellant is to serve the prison terms imposed on him for the felony 

failure to comply convictions concurrently or consecutively to the unexpired prison terms 

for which appellant was on parole. Accordingly, pursuant to the rule of law in Thompson, 

ODRC had the authority to apply the mandatory consecutive service provision of former 

R.C. 2921.331(D) in calculating appellant's sentence expiration date. 
No. 18AP-21 7 

{¶ 18} The version of R.C. 2921.331 in effect when appellant was sentenced in 2000 

provided, in relevant part, as follows: 

(B) No person shall operate a motor vehicle so as willfully to 

elude or flee a police officer after receiving a visible or audible 

signal from a police officer to bring the person's motor vehicle 

to a stop. 

(C)(1) Whoever violates this section is guilty of failure to 

comply with an order or signal of a police officer. 

* * * 

(5)(a) A violation of division (B) of this section is a felony of 

the third degree * * *. 

(D) If an offender is sentenced pursuant to division (C)(4) or 

(5) of this section for a violation of division (B) of this section, 

and if the offender is sentenced to a prison term for that 

violation, the offender shall serve the prison term 

consecutively to any other prison term or mandatory prison 

term imposed upon the offender.

(Emphasis added.) 

{¶ 19} The relevant provisions of the 2007 version of R.C. 2921.331 are identical to 

the relevant provisions of the 2000 version set forth above. Both the 2000 and 2007 

versions of the applicable statutory law mandate that appellant serve his felony failure to 

comply convictions "consecutively to any other prison term." Former R.C. 2921.331(D). 

Because the sentencing entries in 2000 and 2007 did not state appellant was to serve the 

sentences imposed for the felony failure to comply convictions concurrent to the unexpired 

prison terms from which he had been paroled, ODRC had the authority to apply the 

mandatory consecutive sentencing provisions in R.C. 2921.331(D) in calculating appellant's 

sentence expiration date. Pursuant to ODRC's calculations, appellant's sentence expiration 

date is June 8, 2023. 

{¶ 20} Appellant argues the Thompson case is distinguishable because the statutory 

felony sentencing scheme under which Thompson was decided has been changed. More 

particularly, appellant contends that subsequent to 1996, R.C. 2929.41 no longer provided 

sentences for crimes committed while on parole must be served consecutively to sentences 
No. 18AP-21 8 

for crimes committed before the parole violation. Though we agree the version of R.C. 

2929.41 that was in effect when appellant was sentenced in both 2000 and 2007 no longer 

provided that sentences for crimes committed while on parole must be served consecutively 

to sentences for crimes committed before the parole violation, R.C. 2929.41 was not the 

statutory provision on which ODRC relied in calculating his sentence expiration date in this 

case. Rather, ODRC relied on the mandatory consecutive sentencing provisions of R.C. 

2921.331(D), as it existed in both 2000 and 2007, in determining that the sentences 

imposed on appellant for the felony failure to comply convictions must be served 

consecutively to the unexpired sentences for which appellant was on parole. Thus, ODRC 

did not rely on the fact that appellant committed each of the felony failure to comply 

offenses while on parole in calculating appellant's sentence expiration date in 2000 and 

2007. 

{¶ 21} Because there is no factual dispute that appellant's lawful term of 

confinement has yet to expire, appellant cannot satisfy the elements of his claim of false 

imprisonment, and ODRC is entitled to judgment as a matter of law. Accordingly, we hold 

the Court of Claims did not err when it granted summary judgment in favor of ODRC and 

denied appellant's motion for summary judgment. Appellant's assignment of error is 

overruled. 

V. CONCLUSION 

{¶ 22} Having overruled appellant's sole assignment of error, we affirm the 

judgment of the Court of Claims of Ohio. 

Judgment affirmed.

BROWN, P.J., and BRUNNER, J., concur. 

___________________