2001 OHIO 133 - Larsen v. State

[This decision has been published in Ohio Official Reports at

92 Ohio St.3d 69

.]




             LARSEN, APPELLANT, v. The STATE OF OHIO, APPELLEE.
                      [Cite as Larsen v. State,

2001-Ohio-133

.]
Habeas corpus sought to compel relator’s release from confinement—Complaint
        in habeas corpus dismissed as moot when relator is released from
        confinement prior to hearing.
        (No. 00-1721—Submitted May 16, 2001—Decided June 13, 2001.)
           APPEAL from the Court of Appeals for Noble County, No. 281.
                                  __________________
        Per Curiam.
        {¶ 1} In September 1999, appellant, John D. Larsen, was released on his
own recognizance after being charged with forgery. In November 1999, a grand
jury returned an indictment charging Larsen with one count of failure to appear
after being released, in violation of R.C. 2937.99. In February 2000, the Lawrence
County Court of Common Pleas convicted Larsen of failure to appear and
sentenced him to a prison term of one year, crediting him with eighteen days for
time served.
        {¶ 2} In July 2000, Larsen filed a petition in the Court of Appeals for Noble
County for a writ of habeas corpus on the grounds that his indictment was defective
because it failed to state an indictable offense. In August 2000, the court of appeals
dismissed the petition.
        {¶ 3} In his appeal of right, Larsen claims that the court of appeals erred in
dismissing his petition. For the following reasons, we dismiss this appeal as moot.
        {¶ 4} Habeas corpus is generally appropriate in the criminal context only if
the petitioner is entitled to immediate release from prison. Douglas v. Money
(1999),

85 Ohio St.3d 348, 349

708 N.E.2d 697, 698

. If a habeas corpus petitioner
seeking release is subsequently released, the petitioner’s habeas corpus claim is
                            SUPREME COURT OF OHIO




normally rendered moot. Pewitt v. Lorain Correctional Inst. (1992),

64 Ohio St.3d 470, 472

597 N.E.2d 92, 94

. Larsen’s appeal is moot because his one-year
sentence has expired and he has been released from prison.
       {¶ 5} Moreover, this is not a claim that is “capable of repetition, yet evading
review.” Spencer v. Kemna (1998),

523 U.S. 1, 17

118 S.Ct. 978, 988

140 L.Ed.2d 43, 56

; State ex rel. Calvary v. Upper Arlington (2000),

89 Ohio St.3d 229, 231

729 N.E.2d 1182, 1185

. In fact, we have frequently reviewed these issues and have
consistently held that claims challenging the validity and sufficiency of an
indictment are not cognizable in habeas corpus. See, e.g., Buoscio v. Bagley (2001),

91 Ohio St.3d 134, 135

742 N.E.2d 652, 653

; Gunnell v. Lazaroff (2000),

90 Ohio St.3d 76, 76-77

734 N.E.2d 829, 830

.
       {¶ 6} Based on the foregoing, we dismiss this appeal as moot.
                                                                   Appeal dismissed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
                              __________________
       John D. Larsen, pro se.
       Betty D. Montgomery, Attorney General, and Thelma Thomas Price,
Assistant Attorney General, for appellee.
                              __________________




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