2000 OHIO 26 - Gunnell v. Lazaroff

[This opinion has been published in Ohio Official Reports at

90 Ohio St.3d 76

.]




           GUNNELL, APPELLANT, v. LAZAROFF, WARDEN, APPELLEE.
                    [Cite as Gunnell v. Lazaroff,

2000-Ohio-26

.]
Habeas corpus relief sought to compel release from Orient Correctional
         Institution—Court of appeals’ dismissal of petition affirmed.
    (No. 00-740—Submitted August 22, 2000—Decided September 20, 2000.)
      APPEAL from the Court of Appeals for Pickaway County, No. 00CA14.
                                  __________________
         {¶ 1} In June 1992, appellant, Kevin B. Gunnell, was indicted on one count
of aggravated murder and one count of aggravated robbery with accompanying
firearm specifications. Gunnell pled guilty to involuntary manslaughter, which had
been stipulated to be a lesser included offense of the aggravated murder charge. In
July 1992, the Franklin County Court of Common Pleas convicted Gunnell of
involuntary manslaughter and sentenced him to a prison term of six to twenty-five
years.
         {¶ 2} In May 1999, Gunnell filed a postsentence motion to withdraw his
guilty plea. Gunnell claimed that he should be permitted to withdraw his guilty
plea because the state presented evidence of an uncharged offense, i.e., complicity
or “co-defendant/joint offender” under Crim.R. 8(B). The common pleas court
denied Gunnell’s motion.
         {¶ 3} In February 2000, Gunnell filed a petition in the Court of Appeals for
Pickaway County for a writ of habeas corpus to compel appellee, Orient
Correctional Institution Warden Alan Lazaroff, to release Gunnell from prison.
Gunnell claims entitlement to the writ because his indictment failed to charge the
offense for which he was convicted and thus rendered his conviction and sentence
void. The court of appeals dismissed the petition.
         {¶ 4} This cause is now before the court upon an appeal as of right.
                            SUPREME COURT OF OHIO




                              __________________
       Kevin B. Gunnell, pro se.
       Betty D. Montgomery, Attorney General, and Diane Mallory, Assistant
Attorney General, for appellee.
                              __________________
       Per Curiam.
       {¶ 5} We affirm the judgment of the court of appeals. Gunnell’s claims
challenge the validity and sufficiency of his indictment and should have been raised
by an alternative remedy in the ordinary course of law, e.g., appeal, rather than by
extraordinary writ. See Orr v. Mack (1998),

83 Ohio St.3d 429, 430

700 N.E.2d 590, 591

; Wilkerson v. Mitchell (1999),

87 Ohio St.3d 52

716 N.E.2d 1157, 1158

.
Further, the indictment did charge Taylor with aggravated murder and aggravated
robbery, and he entered a guilty plea to involuntary manslaughter, which is a lesser
included offense of the charged offense of aggravated murder. State v. Thomas
(1988),

40 Ohio St.3d 213

533 N.E.2d 286

, paragraph one of the syllabus. An
accused can properly plead guilty to a lesser included offense of the charge for
which he was indicted, and habeas corpus will not lie to challenge a conviction on
this plea. Crockett v. Haskins (1965),

2 Ohio St.2d 322

31 O.O.2d 580

208 N.E.2d 744

. Therefore, Gunnell was not convicted and sentenced upon an uncharged
offense.
                                                                Judgment affirmed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
                              __________________




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