2002 OHIO 4758 - Phillips v. Irwin

[This decision has been published in Ohio Official Reports at

96 Ohio St.3d 350

.]




               PHILLIPS, APPELLANT, v. IRWIN, SHERIFF, APPELLEE.
                     [Cite as Phillips v. Irwin,

2002-Ohio-4758

.]
Habeas corpus sought to compel relator’s release from the Greene County Jail—
        Petition dismissed by court of appeals—Court of appeals’ denial of motion
        for reconsideration affirmed, when.
  (No. 2002-0907—Submitted August 27, 2002—Decided September 25, 2002.)
      APPEAL from the Court of Appeals for Greene County, No. 02-CA-28.
                                  __________________
        Per Curiam.
        {¶1} In March 2002, appellant, Betty Jane Phillips, filed a petition for a writ
of habeas corpus to compel appellee, Greene County Sheriff Jerry Irwin, to release
her from the Greene County Jail. The petition was not verified in accordance with
R.C. 2725.04. On March 20, 2002, the court of appeals sua sponte dismissed the
petition because of the lack of verification. See Chari v. Vore (2001),

91 Ohio St.3d 323, 327

744 N.E.2d 763

.
        {¶2} On March 26, 2002, Phillips filed a motion for reconsideration of the
dismissal and attached a copy of a verification page that she requested be included
in the original petition. On April 11, 2002, the court of appeals issued an order for
Sheriff Irwin to show cause why the writ of habeas corpus should not be issued.
Sheriff Irwin filed a response to the show-cause order in which he claimed that
Phillips was not entitled to the asserted “good time” credit.
        {¶3} On April 29, 2002, the court of appeals denied Phillips’s motion for
reconsideration as moot because Phillips had been released from county jail.
        {¶4} In this appeal, Phillips claims that the court of appeals erred in denying
her motion for reconsideration. Phillips’s claims are meritless for the following
reasons.
                            SUPREME COURT OF OHIO




       {¶5} Phillips’s request for reconsideration was a nullity because her habeas
corpus action was filed originally in the court of appeals, thus rendering App.R.
26(A) inapplicable. State ex rel. Burnes v. Athens Cty. Clerk of Courts (1998),

83 Ohio St.3d 523, 524

700 N.E.2d 1260

; State ex rel. Clark v. Lile (1997),

80 Ohio St.3d 220, 221

685 N.E.2d 535

. Even though the court of appeals did not deny
Phillips’s motion on this basis, “we will not reverse a correct judgment based on an
appellate court’s erroneous rationale.” Johnson v. Timmerman-Cooper (2001),

93 Ohio St.3d 614, 616

757 N.E.2d 1153

.
       {¶6} Moreover, Phillips waived her preeminent claim that she attempts to
raise on appeal because she failed to raise it in the court of appeals. Taylor v.
Mitchell (2000),

88 Ohio St.3d 453, 454

727 N.E.2d 905, fn. 1

.
       {¶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.
                              __________________
       Betty Jane Phillips, pro se.
       William F. Schenck, Greene County Prosecuting Attorney, and Robert K.
Hendrix, Assistant Prosecuting Attorney, for appellee.
                              __________________




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