1998 OHIO 32 - Orr v. Mack

[This opinion has been published in Ohio Official Reports at

83 Ohio St.3d 429

.]




                 ORR, APPELLANT, v. MACK, WARDEN, APPELLEE.
                         [Cite as Orr v. Mack,

1998-Ohio-32

.]
Habeas corpus—Court of appeals properly dismissed petition, when.
   (No. 98-859—Submitted September 29, 1998—Decided October 28, 1998.)
   APPEAL from the Court of Appeals for Madison County, No. CA98-01-002.
                                  __________________
        {¶ 1} In 1996, the Montgomery County Court of Common Pleas convicted
appellant, Roland Orr, of aggravated trafficking in drugs and sentenced him to a
prison term of seven to twenty-five years. In 1998, Orr filed a petition in the Court
of Appeals for Madison County for a writ of habeas corpus to compel appellee,
Lawrence Mack, his prison warden, to immediately release him. Orr claimed that
his criminal complaint and indictment were void. The court of appeals granted
appellee’s Civ.R. 12(B)(6) motion and dismissed the petition for failure to state a
claim upon which relief can be granted.
        {¶ 2} This cause is now before the court upon an appeal as of right.
                                  __________________
        Roland Orr, pro se.
                                  __________________
        Per Curiam.
        {¶ 3} Orr asserts that the court of appeals erred by dismissing his habeas
corpus petition. For the following reasons, however, Orr’s assertion lacks merit.
        {¶ 4} First, as the court of appeals held, habeas corpus is not available to
attack the validity or sufficiency of the charging instrument. State ex rel. Beaucamp
v. Lazaroff (1997),

77 Ohio St.3d 237, 238

673 N.E.2d 1273, 1274

. The manner
by which an accused is charged with a crime is procedural rather than jurisdictional,
and after a conviction for crimes charged in an indictment, the judgment binds the
                            SUPREME COURT OF OHIO




defendant for the crime for which he was convicted.

Id.,

 citing Wells v. Maxwell
(1963),

174 Ohio St. 198

, 200,

22 O.O.2d 147

, 148,

188 N.E.2d 160

, 161, and State
v. Wozniak (1961),

172 Ohio St. 517

, 522-523,

18 O.O.2d 58

, 61,

178 N.E.2d 800

,
804.
       {¶ 5} Second, Orr had an adequate legal remedy by direct appeal to
challenge the validity or sufficiency of the complaint and indictment. State ex rel.
Simpson v. Lazaroff (1996),

75 Ohio St.3d 571

664 N.E.2d 937

.
       {¶ 6} Finally, Orr did not verify his petition as required by R.C. 2725.04.
State ex rel. Ranzy v. Coyle (1998),

81 Ohio St.3d 109, 110

689 N.E.2d 563, 564

.
       {¶ 7} 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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