[This opinion has been published in Ohio Official Reports at
74 Ohio St.3d 269.]
ZANDERS, APPELLANT, v. ANDERSON, SUPT., APPELLEE.
[Cite as Zanders v. Anderson, 1996-Ohio-46.]
Criminal law—Probation—Reversed criminal conviction may serve as basis for
probation revocation unless probationer pleads and proves that reversal
removes all factual support for the probation revocation.
A reversed criminal conviction may serve as the basis for probation revocation
unless the probationer pleads and proves that reversal removes all factual
support for the probation revocation. (State ex rel. Hickman v. Capots
[1989], 45 Ohio St. 3d 324,
544 N.E. 2d 639; Flenoy v. Ohio Adult Parole
Auth. [1990], 56 Ohio St. 3d 131,
564 N.E. 2d 1060; and State ex rel.
Jackson v. McFaul [1995], 73 Ohio St. 3d 185,
652 N.E. 2d 746, followed.
In re Petition for Mallory [1985], 17 Ohio St. 3d 34, 17 OBR 28,
476 N.E.
2d 1045, overruled to the extent that it is inconsistent with this opinion.)
(No. 95-68—Submitted September 26, 1995—Decided January 10, 1996.)
APPEAL from the Court of Appeals for Lorain County, No. 94CA005925.
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{¶ 1} In 1991, appellant, Lawrence Zanders, was convicted of grand theft
with a specification, and also of failure to appear, and was sentenced for these
crimes to consecutive terms of imprisonment of two to ten and one to five years,
respectively. However, the trial court suspended execution of the sentences and
placed appellant on probation for two years.
{¶ 2} On January 26, 1993, appellant was convicted of two felony counts of
involuntary manslaughter and failure to drive within marked lanes, a minor
misdemeanor. He was found not guilty of two counts of aggravated vehicular
homicide, one count of tampering with evidence, one count of failure to stop and
exchange information after an accident, and one count of operating a motor vehicle
SUPREME COURT OF OHIO
without lighted lights. The jury could not agree on a charge of “failure to operate
a vehicle without reasonable control [sic],” which the prosecution then dismissed.
He was sentenced to consecutive four-to-ten year terms on each conviction of
involuntary manslaughter, with each minimum term to be a period of actual
incarceration, and was fined one hundred dollars for failure to drive within marked
lanes. The conviction for failure to drive within marked lanes served as the
underlying misdemeanor for the involuntary manslaughter convictions.
{¶ 3} On January 29, 1993, the trial court also revoked appellant’s
probation and imposed sentence on the 1991 convictions.
{¶ 4} On appeal, the court of appeals reversed the convictions for
involuntary manslaughter based on State v. Collins (1993), 67 Ohio St. 3d 115,
616
N.E. 2d 224, which held that a minor misdemeanor may not serve as the underlying
offense for involuntary manslaughter. The court of appeals affirmed the conviction
for failure to drive within marked lanes and remanded the case to the trial court to
execute its judgment.
{¶ 5} On June 2, 1994, appellant filed a motion to vacate the probation
revocation. The trial court apparently did not act on the motion until January 6,
1995, when it denied the motion, stating that the “underlying misdemeanors [sic]
are sufficient reasons to revoke probation.”
{¶ 6} In the meantime, on August 5, 1994, appellant filed this petition for
habeas corpus in the court of appeals. Both parties filed motions for summary
judgment. The court of appeals granted appellee’s motion, holding that by virtue
of the remaining marked-lanes conviction, the trial court had discretion to
determine whether probation should be revoked.
{¶ 7} Appellant appeals to this court as a matter of right.
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Lawrence Zanders, pro se.
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January Term, 1996
Betty D. Montgomery, Attorney General, and Charles L. Wille, Assistant
Attorney General, for appellee.
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Per Curiam.
{¶ 8} We affirm the judgment of the court of appeals.
{¶ 9} Habeas corpus relief is available to redress a nonjurisdictional claim
when there is no adequate remedy at law. As to adequate remedy, both appellant
and appellee rely on In re Petition for Mallory (1985), 17 Ohio St. 3d 34, 17 OBR
28,
476 N.E. 2d 1045. In Mallory, the appellee had been convicted of two counts
of receiving stolen property, but was placed on five years’ probation. During the
probation period, he was convicted of carrying a concealed weapon, and his
probation was revoked. The concealed weapons violation was reversed on appeal.
Then Mallory, like appellant, requested the trial court to vacate the probation
revocation. Receiving no decision for several months, Mallory filed for a writ of
habeas corpus in the court of appeals. The court of appeals allowed the writ and,
apparently, discharged Mallory from custody. The state appealed. We affirmed,
holding that when the concealed weapons conviction was overturned, the probation
revocation order was based on a nullity and therefore void.
17 Ohio St. 3d at 35,
17 OBR at 29,
476 N.E. 2d at 1047. We further reasoned that even though the trial
court may have had jurisdiction to consider the motion to vacate the probation
revocation, after a reasonable time had elapsed without action by the trial court,
habeas corpus would lie.
17 Ohio St. 3d at 36, 17 OBR at 29-30,
476 N.E. 2d at
1047.
{¶ 10} In Mallory, we emphasized the importance of habeas corpus as an
effective and speedy remedy. Accordingly, although a motion to vacate may be an
adequate remedy if it is acted upon quickly, it was not an adequate remedy in this
case.
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SUPREME COURT OF OHIO
{¶ 11} Appellant argues that he was denied due process of law by being
sentenced to long terms of imprisonment on the probation violation for committing
only a minor misdemeanor. He cites no authority which supports this proposition.
{¶ 12} In Collins, we stated that a minor misdemeanor could not be the
predicate for an involuntary manslaughter conviction. However, that decision was
based on statutory construction, not due process. The Sixth Circuit Court of
Appeals has held that the former involuntary manslaughter statute did not violate
the Due Process Clause even though it did not contain a mens rea:
“… [W]here a criminal statute prohibits and punishes conduct not innocent
or innocuous in itself, the criminal intent element may be dispensed with if the
criminal statute is designed for the protection of the public health and safety and if
it has no common law background that included a particular criminal intent.
Because citizens are presumed to know the ordinary traffic safety laws and that
violating them is dangerous and wrong, Ohio’s involuntary manslaughter statute,
as applied in this case, is based on the obviously wrongful and blameworthy
conduct of violating traffic safety laws. Accordingly, it is not the kind of statute
that requires a formally stated criminal intent element in order to comport with the
Due Process Clause.” Stanley v. Turner (C.A. 6, 1993), 6 F. 3d 399, 404.
{¶ 13} Applying this reasoning to probation revocation, appellant is
presumed to know that violating the marked-lane statute was “dangerous and
wrong.” Moreover, since Mallory was decided, we have stated in parole cases that
“parole may be revoked even though criminal charges based on the same facts are
dismissed, the defendant is acquitted, or the conviction is overturned,” unless “all
factual support” for the revocation is removed. State ex rel. Hickman v. Capots
(1989), 45 Ohio St. 3d 324,
544 N.E. 2d 639, 640; Flenoy v. Ohio Adult Parole
Auth. (1990),
56 Ohio St. 3d 131, 132,
564 N.E. 2d 1060, 1062; State ex rel. Jackson
v. McFaul (1995),
73 Ohio St. 3d 185, 188,
652 N.E. 2d 746, 749. Hickman
additionally requires the offender to plead specific facts to show that all factual
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January Term, 1996
support has been removed from the revocation. We now apply these cases to
probation revocation. Appellant pled no contest to the probation revocation and, in
the instant case, has not attempted to plead any specific facts showing why the
reversal of his conviction for involuntary manslaughter removed all factual support
for the probation revocation.
{¶ 14} R.C. 2951.02 (C) provides in part that probation “shall be at least on
condition that during the period of the probation or other suspension, [the offender]
shall abide by the law.” Appellant violated probation by committing a traffic
misdemeanor--failing to drive within marked lanes-- a clear violation of “law” that
he can be presumed to know was “dangerous and wrong.” Stanley, supra. This
violation caused the deaths of two people, a fact adjudicated beyond a reasonable
doubt. Accordingly, we hold, consistent with Hickman, Flenoy, and Jackson, that
a reversed criminal conviction may serve as the basis for probation revocation
unless the probationer pleads and proves that reversal removes all factual support
for the probation revocation. We also overrule Mallory to the extent it holds that
the reversal of a conviction on which a probation revocation is based makes that
crime a “nullity” for all purposes.
{¶ 15} For these reasons, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY and COOK, JJ., concur.
WRIGHT and PFEIFER, JJ., dissent.
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