1997 OHIO 224 - Smith v. Seidner

[This opinion has been published in Ohio Official Reports at

78 Ohio St.3d 172

.]




               SMITH, APPELLANT, v. SEIDNER, WARDEN, APPELLEE.
                     [Cite as Smith v. Seidner,

1997-Ohio-224

.]
Habeas corpus not available to challenge either the validity or sufficiency of an
        indictment—Habeas corpus not available to raise claims of improper jury
        instructions or verdict forms.
       (No. 96-2710—Submitted March 4, 1997—Decided April 16, 1997.)
     APPEAL from the Court of Appeals for Lorain County, No. 96CA006407.
                                  __________________
        {¶ 1} In 1991, a grand jury indicted appellant, Stanley Smith, of one count
of felonious assault with accompanying firearm and physical-harm specifications.
In 1992, the Ashtabula County Court of Common Pleas convicted Smith of
felonious assault and sentenced him accordingly.
        {¶ 2} In 1996, Smith filed a petition for a writ of habeas corpus in the Court
of Appeals for Lorain County. Smith claimed that he was entitled to immediate
release from prison because the common pleas court deleted the physical-harm
specification contained in the indictment from the jury verdict form and apparently
did not refer to this specification in its jury instructions. The court of appeals
granted the motion of appellee, Lorain Correctional Institution Warden Larry
Seidner, and dismissed the petition for failure to state a claim upon which relief can
be granted.
                                ____________________
        Stanley Smith, pro se.
        Betty D. Montgomery, Attorney General, and Michael L. Bachman,
Assistant Attorney General, for appellee.
                                ____________________
                             SUPREME COURT OF OHIO




       Per Curiam.
       {¶ 3} Smith asserts in his sole proposition of law that the court of appeals
erred by dismissing his habeas corpus petition. Smith’s petition challenged the
common pleas court’s verdict form because it did not include the physical-harm
specification contained in his indictment.
       {¶ 4} As the court of appeals held, habeas corpus is not available to
challenge either the validity or sufficiency of an indictment. State ex rel. Simpson
v. Lazaroff (1996),

75 Ohio St.3d 571

664 N.E.2d 937

. In addition, habeas corpus
is not available to raise claims of improper jury instructions or verdict forms. See,
e.g., State ex rel. Richard v. Seidner (1996),

76 Ohio St.3d 149, 152

666 N.E.2d 1134, 1136-1137

. Smith’s claim could have been raised in a direct appeal from his
conviction and sentence. Simpson,

75 Ohio St.3d at 571

664 N.E.2d at 937

;
Richard,

76 Ohio St.3d at 152

666 N.E.2d at 1136-1137

; see, also, State v. Hill
(1996),

75 Ohio St.3d 195, 208-209

661 N.E.2d 1068, 1081-1082

 (issue of
propriety of jury verdict form raised in direct appeal).
       {¶ 5} Based on the foregoing, the court of appeals correctly dismissed the
petition because Smith possessed an adequate remedy at law by appeal.
Accordingly, 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.
                               __________________




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