[This opinion has been published in Ohio Official Reports at
80 Ohio St.3d 349.]
RASH, APPELLANT, v. ANDERSON, WARDEN, APPELLEE.
[Cite as Rash v. Anderson, 1997-Ohio-338.]
Habeas corpus to compel petitioner’s release from Grafton Correctional
Institution—Writ denied, when—Application of R.C. 2969.22 to indigent
inmates not a violation of constitutional rights of access to courts, due
process, equal protection, and freedom from double jeopardy.
(No. 97-1236—Submitted October 7, 1997—Decided December 3, 1997.)
APPEAL from the Court of Appeals for Lorain County, No. 97CA006728.
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{¶ 1} On October 2, 1981, the Cuyahoga County Court of Common Pleas
convicted appellant, Daniel G. Rash, of three counts of attempted rape and
sentenced him to terms of two-to-fifteen years’ imprisonment on each count. In the
same judgment, the common pleas court suspended Rash’s sentence and placed him
on five years’ probation. During this probation period, two capiases were issued
for Rash’s arrest, including one on January 25, 1985, which was not returned until
April 11, 1986. On October 3, 1986, following a hearing, the common pleas court
entered a judgment that revoked Rash’s probation and resentenced him to
consecutive terms of five-to-fifteen years’ imprisonment for each count of
attempted rape.
{¶ 2} In April 1997, Rash filed a petition in the Court of Appeals for Lorain
County for a writ of habeas corpus to compel his immediate release from Grafton
Correctional Institution. Rash claimed that the common pleas court lacked
jurisdiction to sentence him after he had completed his five-year probation period.
Rash also filed an affidavit of indigency in which he asserted that he was unable to
pay any costs or fees associated with his habeas corpus action. Appellee, Grafton
Correctional Institution Warden Carl Anderson, filed a motion to dismiss or for
SUPREME COURT OF OHIO
summary judgment. Before the court of appeals ruled on appellee’s motion, the
clerk of the court of appeals sent a notice to the Grafton Correctional Institution
Cashier ordering the cashier, in accordance with R.C. 2969.22(A), to remit all funds
exceeding ten dollars in Rash’s inmate account until the filing fee for his habeas
corpus action was paid in full. The court of appeals subsequently granted appellee’s
motion for summary judgment and denied the writ.
{¶ 3} This cause is now before the court upon an appeal as of right.
____________________
Daniel Rash, pro se.
Betty D. Montgomery, Attorney General, and Donald Gary Keyser,
Assistant Attorney General, for appellee.
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Per Curiam.
Habeas Corpus Claim
{¶ 4} In Rash’s first proposition of law, he asserts that the court of appeals
erred by denying his writ of habeas corpus. Rash claims that the trial court lacked
jurisdiction to revoke his probation and resentence him, since his five-year
probation period had expired.
{¶ 5} When a court’s judgment is void because the court lacked subjectmatter jurisdiction, habeas corpus is generally an appropriate remedy despite the
availability of appeal. Gaskins v. Shiplevy (1995), 74 Ohio St.3d 149, 151,
656
N.E.2d 1282, 1284, citing In re Lockhart (1952),
157 Ohio St. 192, 195,
47 O.O.
129, 131,
105 N.E.2d 35, 37, and paragraph three of the syllabus; but, see, State v.
Pless (1996),
74 Ohio St.3d 333,
658 N.E.2d 766, paragraphs one and two of the
syllabus (jurisdictional defect waived if not raised on direct appeal). “At the end
or termination of the period of probation, the jurisdiction of the judge or magistrate
to impose sentence ceases and the defendant shall be discharged.” R.C. 2951.09.
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January Term, 1997
{¶ 6} Under R.C. 2951.07, however, “[i]f the probationer absconds or
otherwise absents himself from the jurisdiction of the court without permission
from the county department of probation or the court to do so, … the probation
period ceases to run until such time as he is brought before the court for its further
action.” As the court of appeals correctly held, the issuance of two capiases for
Rash during his five-year probation period tolled the running of his probation
period so that the trial court retained jurisdiction to revoke his probation and
resentence him on October 3, 1986. See, generally, State v. Cass (1991), 77 Ohio
App.3d 697, 700,
603 N.E.2d 319, 321; State v. O’Leary (1987),
43 Ohio App.3d
124, 125,
539 N.E.2d 634, 636; State v. Wallace (1982),
7 Ohio App.3d 262, 263,
7 OBR 342, 343,
454 N.E.2d 1356, 1358; Columbus v. Keethler (Nov. 7, 1995),
Franklin App. Nos. 95AP604-399 and 95APC04-400, unreported,
1995 WL
656921; see, also, In re Townsend (1990),
51 Ohio St.3d 136, 138,
554 N.E.2d
1336, 1338 (R.C. 2951.07 does not require that the probationer leave the territorial
jurisdiction of the court that imposed probation in order to toll the running of the
probation period.).
{¶ 7} Based on the foregoing, the court of appeals properly denied the writ
of habeas corpus.
R.C. 2969.22
{¶ 8} Rash contends in his second proposition of law that the court of
appeals erred in ordering the deduction of funds from his inmate account pursuant
to R.C. 2969.22. Rash claims that the application of R.C. 2969.22 to indigent
inmates such as himself violates their constitutional rights of access to courts, due
process, equal protection, and against double jeopardy. Although the Attorney
General filed a brief on behalf of appellee, appellee did not respond to Rash’s R.C.
2969.22 contention.
{¶ 9} R.C. 2969.22 is part of Sub.H.B. No. 455, effective October 17, 1996,
and sets forth in forma pauperis filing requirements for inmates commencing civil
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actions or appeals against government entities or employees. R.C. 2969.22 sets
forth the procedures for payment of costs by inmates initiating these actions or
appeals.
{¶ 10} Rash’s claims are meritless. Federal courts have rejected similar
constitutional challenges to the federal Prison Litigation Reform Act (“PLRA”),
Section 1915, Title 28, U.S.Code, which sets forth analogous in forma pauperis
requirements for prisoner litigation in federal courts. See, e.g., Nicholas v. Tucker
(C.A.2, 1997), 114 F.3d 17 (PLRA’s filing fee provisions do not violate equal
protection or deny access to courts.); Hampton v. Hobbs (C.A.6, 1997),
106 F.3d
1281 (PLRA’s filing fee requirements do not violate rights of access to courts, due
process, equal protection, or against double jeopardy.). The court of appeals thus
did not violate Rash’s constitutional rights by applying R.C. 2969.22.
{¶ 11} 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.
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