1998 OHIO 30 - Smith v. Walker

[This opinion has been published in Ohio Official Reports at

83 Ohio St.3d 431

.]




              SMITH, APPELLANT, v. WALKER, WARDEN, APPELLEE.
                      [Cite as Smith v. Walker,

1998-Ohio-30

.]
Habeas corpus to compel Warden of Pickaway Correctional Institution to release
        petitioner from prison—Petition properly dismissed by court of appeals,
        when.
  (No. 98-1036—Submitted September 29, 1998—Decided October 28, 1998.)
     APPEAL from the Court of Appeals for Pickaway County, No. 98 CA 10.
                                  __________________
        {¶ 1} In 1994, the Summit County Court of Common Pleas convicted
appellant, Paul Douglas Smith, of endangering children and assault, and sentenced
him to prison. The judgment was affirmed on appeal. State v. Smith (July 5, 1995),
Summit App. No. 16910, unreported,

1995 WL 411401

. The common pleas court
later denied Smith’s petition for postconviction relief. Smith also filed a petition
in this court for a writ of habeas corpus, which we dismissed. Smith v. Walker
(1997),

79 Ohio St.3d 1503

684 N.E.2d 88

.
        {¶ 2} In 1998, Smith filed a petition in the Court of Appeals for Pickaway
County for a writ of habeas corpus to compel appellee, Pickaway Correctional
Institution Warden Diane Walker, to immediately release him from prison. Smith
claimed that his trial court improperly sentenced him for a second-degree felony
even though the jury found him guilty of a third-degree felony. Shortly thereafter,
the court of appeals dismissed Smith’s petition because he had failed to comply
with the requirements of R.C. 2969.25(A) and (C).
        {¶ 3} This cause is now before the court upon an appeal as of right.
                                  __________________
        Paul Douglas Smith, pro se.
                             SUPREME COURT OF OHIO




       Betty D. Montgomery, Attorney General, and Karen L. Killian, Assistant
Attorney General, for appellee.
                              __________________
       Per Curiam.
       {¶ 4} Smith asserts in his sole proposition of law that the court of appeals
erred in dismissing his petition based on the in forma pauperis requirements set
forth in R.C. 2969.25 for inmates filing civil actions against a government entity or
employee. Smith’s assertion lacks merit because even if the court of appeals’
rationale was incorrect, dismissal was warranted for the following reasons. See
State ex rel. The V Cos. v. Marshall (1998),

81 Ohio St.3d 467, 474

692 N.E.2d 198, 204, fn. 1

.
       {¶ 5} First, Smith had adequate remedies at law by appeal or postconviction
relief to review the alleged sentencing error. State ex rel. Massie v. Rogers (1997),

77 Ohio St.3d 449, 450

674 N.E.2d 1383

. Sentencing errors are not jurisdictional.
Majoros v. Collins (1992),

64 Ohio St.3d 442, 443

596 N.E.2d 1038, 1039

.
       {¶ 6} Second, res judicata precluded Childers from filing successive habeas
corpus petitions. State ex rel. Brantley v. Ghee (1997),

80 Ohio St.3d 287, 288

685 N.E.2d 1243, 1244

.
       {¶ 7} Based on the foregoing, the court of appeals properly dismissed
Smith’s petition. By so holding, as we have held in comparable cases, we need not
address the issue of whether R.C. 2969.25 applies to habeas corpus actions. Cf.
State ex rel. Crigger v. Ohio Adult Parole Auth. (1998),

82 Ohio St.3d 270, 271

695 N.E.2d 254, 255

; State ex rel. Alford v. Winters (1997),

80 Ohio St.3d 285, 286

685 N.E.2d 1242, 1242-1243

. 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.



                                         2
January Term, 1998




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