View Full Version : All Sirak Lawsuit Updates

05-31-2003, 05:59 AM
Progress Report for May 29, 2003

Norman L. Sirak, Attorney At Law
Member D.C. Bar Association
Member Ohio Bar Association
P.O. Box 7468, Canton, Ohio 44705
4035 Cinwood St. N.W., Massillon, Ohio 44646
330-478-1953 (fax)

To: Sponsors and Clients

From: Norman Sirak

Re: Affidavits and Volunteer Assistance - Distribution Limited to Internet Subscribers

For the past month, I have been working on affidavit forms to support important pieces of our case. These affidavits have already been distributed to at least one representative at all of the prisons. Now, I would like to further improve upon the distribution of these affidavits by sending it to sponsors and, through you, to additional clients. At the moment, we have just passed 2,500 clients. I am also learning that there are a large number of non-clients actively following and supporting this lawsuit. These non-clients may number another couple thousand, and we are actively seeking affidavits and parole board decisions from this group as well. In short, the tentacles of this lawsuit now reach deeply into every prison, every dorm of every prison and even into most pods. The reach of our internet network compliments and extends the contacts of our liaisons. Think of these affidavits as fishing hooks and think of evidence instead of fish. The deeper these lines are cast, the more they will bring back to us. I am encouraging you to print these affidavits and send them to the person that you are sponsoring.

There are three affidavits attached to this progress report. The first affidavit is to be used if the person that you are sponsoring did not receive a meaningful parole review hearing. Virtually everyone can do this affidavit. Please tell us exactly what happened.

The second affidavit is Bad Time. This refers to the practice of punishing an old law inmate twice for an infraction. They get punished at the time the infraction was committed. Then, when they see the parole board, they get punished again with more time. This cannot be done to New Law inmates. Because of the recent Layne decision, I believe that we can get this declared unconstitutional for Old Law inmates when this discipline exceeds their maximum guideline range.

The third affidavit is probably the most important one of all. It is for aggregating sentences and extending the maximum expiration of the sentence beyond the term dictated by the trial court. This will only apply if an inmate has multiple crimes. But even if this does not apply to the person that you are sponsoring, it may apply to someone that they know. For this reason, I am encouraging you to print this affidavit and send it in. To give you a better appreciation of the purpose served by this affidavit, I am going to explain the process of aggregating sentences and how this is illegal.

Aggregating Sentences

Aggregating sentences actually means running sentences one after another, consecutively. Sentences can also run concurrently, at the same time. This is best explained with an example. Suppose a person is convicted of a crime in 1985 and the sentence is 2 to 10 years. They serve three years and then they are paroled. It is now 1988. Because of the maximum sentence (referred to as a long tail), there is still another 7 years to run on this sentence when they get out. Now, let us further suppose that while they are on parole, they commit a second crime six months after being released. The sentence for this second crime is 5 to 15 years. If there is nothing in this second sentence to say that the two are to run consecutive, the law assumes that they are to run concurrent. In 2003, the 15th year will be served on the second sentence. The 10th and last year on the first sentence would be served in 1995. By the year 2003, both sentences would have fully expired. This is an example of the cases running concurrently. If they are aggregated, which means that they are run consecutively, then in 2003, this fictional person will have to do the 7 years remaining on the first offense. The two cases will not fully expire until 2010.

If the sentence from the court makes no reference to this earlier crime or to the fact that the offender was on parole when it was committed, the law assumes that the sentences run concurrent. If there is any ambiguity, the law must find in favor of the offender. We are collecting sentencing entries from clients in this predicament. Thus far, every sentencing entry has been silent on the question as to how this sentence is to run with a prior offense. It is simply a standard form with blanks filled in and it sets out the 5 to 15 year sentence. Under this set of circumstances, the sentence is to run concurrent. The Department of Rehabilitation and Correction is changing these trial court sentences. Internally, they are making them run consecutively. This is adding years, sometimes decades to the sentences to be served.

Why Aggregating Sentences by DRC is Illegal

The law in Ohio states that if a person commits another felony while they are on parole, the sentence may be run consecutive to the earlier sentence. If this law is self-executing, DRC could probably get away with this practice. However, this law is not self-executing. To understand why the law is not self-executing, I am going to have to delve into some legal complexities. I will try to do this without losing you. However, as legal problems go, this problem is extremely thorny and intricate.

Before this statute can be engaged, two conditions must be satisfied. First, the parole violation and the crime must be one and the same. That is because the granting of a parole connotes elements of trust and faith in the offender. The state is saying that when a person is paroled, they are sufficiently rehabilitated to return to society. When another crime is committed while still on parole, the commission of this new crime violates the demonstration of trust and warrants the imposition of this stiff penalty. A technical violation such as a missed meeting would certainly not warrant this stern penalty. Second, parole must be revoked before the sentence for the second felony - the one committed while on parole - is issued and the court's record needs to reflect this fact. This second element is the result of a U.S. Supreme Court decision that says, before an offender's parole can be revoked, they must be given a parole revocation hearing and afforded an opportunity to present mitigating evidence. When these two conditions are satisfied, the trial court can find that a new felony has been committed and it can make the sentence for the 2nd felony run consecutive to the earlier crime.

In Ohio, it is very rare for parole to be revoked before the sentence is issued for the second felony - the one committed while on parole. That is because Ohio law has taken the courts out of the process of revoking parole and delegated this job to the Parole Board. The Parole Board chooses to wait until the trial has fully run its course, and then it revokes parole. As a consequence, a necessary condition for engaging this statute is not in place.

There is still one more twist to this legal problem. After a court's judgment is issued, it is set in cement. The only things that can be changed are a clerical error or a judgment that is void (example, giving someone 25 years for a 2nd degree felony when the maximum sentence is 15 years). And changing the sentence to run consecutive instead of concurrent is not a clerical change. We have a recent Ohio Supreme Court case confirming this.

If that is not enough, there is still more. DRC has been told that it cannot alter sentences like this. In 1986, Attorney General Celebreeze told them that had no power to do this. Now, on the negative side, there are a few courts that have checked their brain in the closet, read the literal language of the statute, compared this to the facts and issued opinions approving of this practice. These decisions are wrong. All of the published decisions go the other way. All of the opinions supporting DRC were filed by inmates without the tools and the education to take on an issue this complex.

I believe this issue can help us defeat the State's qualified immunity and it can add significant justification for our claim for monetary damages. For this reason, I cannot get enough of these aggregated sentence affidavits.

How to Do these Affidavits

If you are doing the affidavit for the person you are sponsoring, send them my form and ask them to write in the information that would go in the blanks. For the most part, I would like them to track my form. This is a focused, single-issue affidavit. If they add matters relating to the second trial, I will not be able to use this affidavit. This muddies the water and the point can get lost with all of these side issues. When they are finished, ask them to send it back to you. When you receive it, type in what they have added on your computer and print a finished document. Next, send this back to them for signing and then send it to me, Norman Sirak, P.O. Box 7468, Canton, Ohio 44705.

These affidavits must be accompanied by certified copies of the court sentences. Just a copy will not do. Because this issue is so important, I want to be sure that these affidavits are admissible. This explains why they must be certified. I am presently putting together volunteers to get these certifications. In fact, that is the next topic. But if the courthouse is not far away and you can get these certified documents, it would be appreciated. These are not expensive. Typically, this will cost less than $5. When you get your certified court records, send them to me.


I have in the past put out several pleas for volunteers. Typically, I get a lot of responses and then I am unable to utilize all of the help offered. Well, guess what. Now, I am asking for volunteers and I know exactly how they can be beneficial to the cause. We have two jobs to do.

The first job has already been mentioned. I need volunteers living throughout the state of Ohio, that can go to the local courthouse and get certified trial court sentences to support these affidavits. The clerk's office handles these requests and it is a very routine, perfunctory task for them to perform. I am willing to reimburse expenses. Particularly if you are living in an urban county, the cost for getting these records will become significant if you are getting records for half a dozen people. In these cases, I will send you a check as I make these assignments. Save your receipts and send them back to me. When the money advanced has been used, sent me an email and I will send out another check.

The second job simply requires a computer and some time. I have been told that some inmates will not be willing to share the details of their crime with another inmate, but they will work with someone on the outside working under my direction. I am going to be assigning volunteers to each prison, for the purpose of doing precisely what I outlined above, under the title How to do these affidavits. These volunteers will send in the forms, then type in their information when it comes back, and then send in the finished document. When you send these affidavits to the prison, write my name in the upper left corner as sender. It should say, Norman Sirak, Attorney at Law, P.O. Box 7468, Canton, Ohio 44705. Then, mark the envelope Legal Mail. Do not include anything but the affidavits. Please refrain from adding personal notes.

If you are willing to be a volunteer, send me an email directly. My email address is Please tell me which job you can do and I will be getting back to you. This is very important to the case.


Norman Sirak

P.S. These affidavit forms are also being included with the file on our website following this progress report. Instead of opening the attachment, you can also download these forms from our website.