State ex rel. Konoff v. Shafer - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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THE STATE EX REL. KONOFF, APPELLANT, V. SHAFER, APPELLEE.
[Cite as State ex rel. Konoff v. Shafer (1997), ___ Ohio St.3d ___.]
Mandamus to compel records custodian to correct aggregate minimum term of
incarceration pursuant to former R.C. 2929.41(E)(2) -- Dismissal of
complaint affirmed.

(No. 97-1291 -- Submitted October 7, 1997 -- Decided November 19,
1997.)

APPEAL from the Court of Appeals for Richland County, No. 97-CA-38.

In July 1990, the Ottawa County Court of Common Pleas convicted
appellant, Rodney L. Konoff, of attempted murder, attempted rape, aggravated
burglary, two counts of felonious assault, and a firearm specification. State v.
Konoff (Nov. 1, 1991), Ottawa App. No. 90-OT-036, unreported, 1991 WL
224991. The common pleas court sentenced Konoff to consecutive prison terms
of seven to twenty-five years, twelve to fifteen years, fifteen to twenty-five years,
twelve to fifteen years, twelve to fifteen years, and three years of actual
incarceration. Id.

In April 1997, Konoff filed a complaint in the Court of Appeals for
Richland County for a writ of mandamus to compel Sandra Shafer, Records
Custodian of Mansfield Correctional Institution, to correct his prison record to
reflect an aggregate minimum term of fifteen years plus three years of actual
incarceration for the firearm specification pursuant to former R.C. 2929.41(E)(2).1
Shafer filed a motion to dismiss based on mootness. In an affidavit attached to her
motion to dismiss, Shafer noted that Konoff's records do show that his aggregate
minimum sentence is fifteen years plus three years of actual incarceration. Konoff
then filed a motion to amend his complaint. Konoff claimed that his records in
various prison departments still contained incorrect aggregate minimum terms.

Konoff also filed a motion for summary judgment and a memorandum in
opposition to Shafer's motion to dismiss. The court of appeals granted Shafer's
motion to dismiss and overruled Konoff's motion to amend.

This cause is now before the court upon an appeal as of right.
__________________

Rodney L. Konoff, pro se.

Betty D. Montgomery, Attorney General, and Brian M. Zets, Assistant
Attorney General, for appellee.
__________________

Per Curiam. Konoff asserts in his first proposition of law that the court of
appeals erred by dismissing his complaint based on mootness without considering
his motion for summary judgment and memorandum in opposition to the motion to
dismiss. It is, however, not evident that the court of appeals failed to consider
Konoff's motion and memorandum. See Gaskins v. Shiplevy (1996), 76 Ohio
St.3d 380, 382, 667 N.E.2d 1194, 1996 (no showing by appellant to contradict
regularity accorded all judicial proceedings); see, also, State ex rel. Cassels v.
Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 223, 631 N.E.2d
150, 155 ("when a trial court fails to rule upon a pretrial motion, it may be
presumed that the court overruled it"). In addition, the court of appeals properly
dismissed Konoff's complaint based on mootness. See, e.g., State ex rel. Findlay
Publishing Co. v. Schroeder (1996), 76 Ohio St.3d 580, 581, 669 N.E.2d 835, 837
(courts may take judicial notice of evidence of mootness in determining Civ.R. 12
motion to dismiss).

Konoff asserts in his second proposition of law that the court of appeals
erred in overruling his motion to amend. But even assuming, as Konoff claimed,
that Shafer failed to correct all of Konoff's prison records, Konoff would not have

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been entitled to the requested writ of mandamus. See State ex rel. Yonkings v.
Ohio Dept. of Rehab. & Corr. (Oct. 28, 1993), Franklin App. No. 93AP-655,
unreported, 1993 WL 435190, affirmed (1994), 69 Ohio St.3d 70, 630 N.E.2d 365
(writ of mandamus to correct prison record to reflect correct aggregate minimum
sentence under R.C. 2929.41[E][2] denied because declaratory judgment
constituted adequate remedy); Schrader v. Vilevac (Jan. 31, 1996), Lorain App.
No. 95CA006187, unreported, 1996 WL 37762 (writ of mandamus to compel
compliance with R.C. 2929.41[E][2] will not lie because there was no evidence of
any present injury to inmate).

Based on the foregoing, we affirm the judgment of the court of appeals.
Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
FOOTNOTE:
1.
Former R.C. 2929.41(E) provided:

"Consecutive terms of imprisonment imposed shall not exceed:

"* * *

"(2) An aggregate minimum term of fifteen years plus the sum of all three-
year terms of actual incarceration imposed pursuant to section 2929.71 of the
Revised Code." Sub.H.B. No. 65, 142 Ohio Laws, Part I, 1886.

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