1996 OHIO 280 - Thomas v. Collins

[This opinion has been published in Ohio Official Reports at

74 Ohio St.3d 413

.]




                   THOMAS, APPELLANT, V. COLLINS, APPELLEE.
                     [Cite as Thomas v. Collins,

1996-Ohio-280

.]
Criminal law—Issues involving relationship of the indictment to the evidence may
        be appealed—Habeas corpus not available when petitioner has adequate
        remedy at law by way of appeal.
    (No. 95-1275—Submitted December 5, 1995—Decided January 31, 1996.)
     APPEAL from the Court of Appeals for Scioto County, No. 94CA002275.
                                  __________________
        {¶ 1} In 1988, appellant, Lewis Thomas III, was convicted of aggravated
murder, aggravated robbery with specifications, and three counts of felonious
assault with specifications. He was sentenced to life imprisonment with possibility
of parole after twenty years for the aggravated murder and to indefinite terms of
imprisonment on the other convictions.             The court of appeals affirmed the
convictions, but remanded for resentencing. State v. Thomas (Apr. 4, 1990),
Hamilton App. No. C-880637, unreported. On September 2, 1994, he filed a
complaint for a writ of habeas corpus in the Court of Appeals for Scioto County,
alleging that the trial court that convicted him lacked jurisdiction to do so because
he was convicted of complicity under R.C. 2923.03 (A)(2) without being so charged
in the indictment.
        {¶ 2} The state filed a return of the writ. The court of appeals held that
habeas corpus is not available when the court has jurisdiction to convict and
sentence the defendant and that the trial court had such jurisdiction in this case.
        {¶ 3} Appellant appeals as of right. Appellee has not filed a brief, but has
filed a motion to strike appellant’s brief or dismiss because appellant failed to file
a copy of his brief with appellee.
                                  __________________
                             SUPREME COURT OF OHIO




       Lewis Thomas III, pro se.
       Betty D. Montgomery, Attorney General, and Stuart A. Cole, Assistant
Attorney General, for appellee.
                              __________________
       Per Curiam.
       {¶ 4} Whether the evidence conforms to the indictment is not a
jurisdictional issue as contended by petitioner-appellant. However, habeas corpus
relief may be granted for nonjurisdictional claims, if the petitioner has no adequate
remedy at law. State ex rel. Pirman v. Money (1993),

69 Ohio St. 3d 591, 593

635 N.E.2d 26

. Issues involving the relationship of the indictment to the evidence may
clearly be appealed. See State v. O’Brien (1987),

30 Ohio St. 3d 122

, 30 OBR 436,

508 N.E.2d 144

. Thus, petitioner in this case had an adequate remedy at law.
       {¶ 5} Accordingly, we overrule the motion to strike or dismiss and affirm
the judgment of the court of appeals.
                                                                Judgment affirmed.
       MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and
COOK, JJ., concur.
                              __________________




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