[Cite as State v. Wright,
2016-Ohio-5722.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
STATE OF OHIO, :
: Case No. 15CA14
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
DELANIO WRIGHT, :
:
Defendant-Appellant. : Released: 09/01/16
_____________________________________________________________
APPEARANCES:
Delanio Wright, Chillicothe, Ohio, Pro Se Appellant.
Anneka Collins, Highland County Prosecuting Attorney, and James Roeder,
Assistant Prosecuting Attorney, Hillsboro, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Delanio Wright appeals the trial court's denial of his motion for
declaratory judgment, which the court construed as a petition for habeas
corpus. On appeal, Appellant contends that the trial court failed to review
his claim of a due process violation because Appellant is under the "old
law." Because Appellant's petition suffered from multiple fatal filing
defects, the trial court should have dismissed it on procedural grounds.
Further, because Appellant's petition fails on procedural grounds, we do
reach the merits of his sole assignment of error. However, because the trial
Highland App. No. 15CA14 2
court denied the petition on the merits, we reverse the judgment of the trial
court and remand this matter with instructions to dismiss the petition.
FACTS
{¶2} We take the bulk of Appellant's factual and case history from the
State's brief, as there appears to be an extensive criminal history relevant to
this matter that did not occur in Highland County and is not part of the actual
record presently before us on appeal. Appellant was originally convicted in
Highland County on June 16, 1994 after pleading guilty to three felony
offenses. He was sentenced on July 20, 1994 to a term of incarceration of
sixteen to fifty years. Appellant's convictions were later affirmed on appeal.
{¶3} Both Appellant and the State represent to this Court that
Appellant was released to transitional control after serving approximately
twelve and one-half years of his sentence. It appears, according to the State,
that Appellant violated his parole as a result of the commission of four new
felonies in Franklin County in 2007, that Appellant was convicted for the
Franklin County offenses, and that the convictions were affirmed on appeal.
The State further represents that Appellant was subsequently sanctioned with
a nine-month prison term by the Adult Parole Authority in connection with a
May 24, 2012 motion filed by Appellant requesting judicial release.
However, Appellant was apparently released by 2013, because both the State
Highland App. No. 15CA14 3
and Appellant represent to this Court that Appellant was arrested and
charged with additional felonies in Scioto County in April of 2013.
According to paperwork attached to a pleading filed by Appellant in the
Highland County court, another parole revocation hearing was held in June
of 2013, Appellant's parole was revoked and the Adult Parole Authority
imposed a thirty-six month prison term as a parole violation sanction.
{¶4} It appears from the online Scioto County docket and also the
State's brief that that Scioto County case was initially filed, dismissed, and
then re-filed. Appellant entered into a plea agreement on the re-filed
indictment and was sentenced to two twelve-month prison terms to be served
consecutively, but those convictions were subsequently vacated and a
superseding indictment was filed. Appellant again pled guilty and was
sentenced on July 6, 2015 to two twelve-month prison terms to be served
consecutively.
{¶5} Prior to his sentencing in Scioto County, on June 4, 2015
Appellant filed a pleading entitled "Declaratory Judgment" in the Highland
County Court of Common Pleas, the court where his original convictions
occurred. The pleading claimed Appellant was being illegally confined by
the Adult Parole Authority and sought release from confinement. The trial
court construed Appellant's pleading to be a petition for habeas corpus and
Highland App. No. 15CA14 4
denied the petition. It is from the denial of his petition that Appellant now
brings the current appeal, setting forth one assignment of error for our
review.
ASSIGNMENT OF ERROR
“I. THE COURT FAILED TO REVIEW THE DEFENDANTS [SIC]
CLAIM OF A DUE PROCESS VIOLATION: BECAUSE THE
DEFENDANT IS UNDER THE OLD LAW.”
LEGAL ANALYSIS
{¶6} In his first assignment of error, Appellant contends that the trial
court erred when it failed to review his claim of a due process violation
because he is under the "old law." Appellant argues that the most recent
violation of his parole resulted in the Adult Parole Authority imposing a
thirty-six month prison sanction upon him when it should have only been
permitted to impose a nine-month prison sanction upon him. Appellant
relies upon Chapter 2967 of the Ohio Revised Code in support of his
argument. He specifically argues that R.C. 2967.28(F)(3) provides that the
period of a prison term imposed as a sanction shall not exceed nine months.
He contends that this provision applies to persons upon whom a court
imposed a prison term prior to, on, or after July 1, 1996. He finally argues
that "all pre-S.B.2 sentenced people are receiving this kind of treatment[,]"
meaning that other offenders sentenced prior to July 1, 1996 are routinely
Highland App. No. 15CA14 5
having sanctions of more than nine months imposed upon them for parole
violations. However, based upon the following, we do not reach the merits
of Appellant's assignment of error.
{¶7} As set forth above, on June 4, 2015, Appellant filed a pro se
pleading entitled "Declaratory Judgment." Because that motion essentially
argued that Appellant was being held beyond the time limits provided for in
Chapter 2967 of the Ohio Revised Code and sought an immediate release
from confinement, the trial court construed the motion as a petition for
habeas corpus. The trial court went on to state that "habeas corpus is
generally not available to challenge parole conditions that allegedly restrain
a petitioner's liberty[,]" and then denied the petition on the merits.
{¶8} Declaratory judgment is an appropriate means to declare actions
of the Adult Parole Authority illegal. McGrath v. Ohio Adult Parole
Authority, 8th Dist. Cuyahoga No. 84362, 2004-Ohio-6114. However, it
appears when an offender is still incarcerated or being held and is seeking
immediate release from confinement, a petition for habeas corpus is now
considered the proper means of redress with respect to revocation of parole
by the Adult Parole Authority. State ex rel. Jackson v. McFaul,
73 Ohio
St.3d 185,
652 N.E.2d 746 (1995) (habeas corpus will lie to challenge a
decision of the Adult Parole Authority in extraordinary cases involving
Highland App. No. 15CA14 6
parole revocation, but finding this particular case not to be one of those
extraordinary cases.)1; Hernandez v. Kelly,
108 Ohio St.3d 395, 2006-Ohio-
126,
844 N.E.2d 301 (superseded by statute, on other grounds) ("Habeas
corpus will lie to challenge certain decisions of the Adult Parole Authority
because there is no remedy of appeal available."). Although we agree with
the trial court's decision to construe Appellant's pleading as a petition for
habeas corpus, we disagree with the trial court's statement that such petition
is not appropriate to challenge parole conditions. Nevertheless, the trial
court went on to address Appellant's argument on the merits and denied
Appellant's petition.
{¶9} As indicated above, for the reasons that follow, we conclude
Appellant's petition should have been dismissed on procedural grounds
rather than denied on the merits. Habeas corpus petitions are governed by
R.C. 2725. They are available to a person who is “unlawfully restrained of
his liberty ... to inquire into the cause of such imprisonment, restraint, or
deprivation.” R.C. 2725.01. An individual may petition for a writ of habeas
corpus if his maximum sentence has expired and he is being held unlawfully.
State v. Wilburn, 4th Dist. Lawrence No. 98CA47, 1999 WL 1281507 (Dec.
1
State ex rel. Jackson v. McFaul, overruled Stahl v. Shoemaker, et al.,
50 Ohio St.2d 351,
364 N.E.2d 286,
which held that "[h]abeas corpus is not available to review an action taken by the Adult Parole Authority."
(internal citation omitted).
Highland App. No. 15CA14 7
22, 1999); Frazier v. Strickrath,
42 Ohio App.3d 114, 115-116,
536 N.E.2d
1193 (4th Dist.1988).
{¶10} A habeas corpus petition must conform to certain statutory
requirements. It must be signed and verified, and it must specify: (A) that
the petitioner is imprisoned or restrained of his liberty; (B) the name of the
person restraining the petitioner, if known; (C) the place the petitioner is
imprisoned or restrained, if known; and (D) it must include a copy of the
commitment papers, if the commitment papers can be obtained without
impairing the efficiency of the remedy. R.C. 2725.04 and R.C. 2969.25.
Further, this Court has noted that the failure to comply with the provisions of
R.C. 2969.25 requires the dismissal of the action. Washington v. Morgan,
4th Dist. Scioto No. 14CA3664, 2014-Ohio-5834, ¶ 9; Clay v. Hooks, 4th
Dist. Ross No. 15CA3476,
2015-Ohio-1372, ¶ 12 ("A petitioner's failure to
attach all pertinent commitment papers renders the petition fatally
defective."); citing Tucker v. McAninch, 82 Ohio St.3d 423,
696 N.E.2d 595
(1998) (additional citations omitted). We review a trial court's grant or
denial of habeas corpus under a de novo standard. Hart v. Hudson, 4th Dist.
Pickaway No. 10CA19,
2010-Ohio-5954, ¶ 12; citing Tierney v. Tierney,
11th Dist. Trumbull No. 2007-T-0095,
2008-Ohio-2755, ¶ 15; citing Young
Highland App. No. 15CA14 8
v. Brunsman, 4th Dist. Ross No. 06CA2938,
2008-Ohio-64, at ¶ 13 (other
citations omitted).
{¶11} Here, Appellant's petition did not include a copy of his
commitment papers nor is his petition verified as required by R.C. 2725.04.
Further, although Appellant referenced convictions in other counties and
previous parole revocations and sanctions, he failed to file an affidavit that
contained a description of each civil action or appeal he has filed in the past
five years as required by R.C. 2969.25(A). Thus, Appellant's petition was
defective for failure to comply with the filing requirements set forth in both
R.C. 2725.04 and 2960.25(A) and should have been dismissed on procedural
grounds by the trial court, rather than denied on the merits.
{¶12} Further, even if Appellant's petition had satisfied the filing
requirements, we find Appellant failed to establish he was entitled to habeas
corpus relief for additional procedural, rather than substantive, reasons.
Although it is not contained in the record before us, we take judicial notice
of the fact that the record in Appellant's 2013 Scioto County criminal case,
identified on the Scioto County docket as 13CR000776B, states that
Appellant was arrested and charged with multiple felonies on April 30,
2013. Ogle v. Hocking Cty. Sheriff, 4th Dist. Hocking No. 11AP13, 2012-
Ohio-1768, ¶ 2; citing Hart v. Hudson, supra, at ¶ 26 (stating that “a court of
Highland App. No. 15CA14 9
appeals may take judicial notice of findings and judgments as rendered in
other Ohio cases”) (internal quotation omitted). The appellate record before
us reveals that a parole revocation hearing was held on June 10, 2013.
Appellant's parole was revoked by the Adult Parole Authority on June 27,
2013, and a thirty-six month prison sanction was imposed upon him at that
time. The paperwork Appellant attached to his petition below indicates
Appellant's thirty-six month sanction would be completed in May of 2016, at
which time Appellant would be eligible for release consideration. Thus, at
this time, Appellant has already completed this thirty-six month prison
sanction and the question of whether he is being illegally confined by the
Adult Parole Authority is moot.2
{¶13} Additionally, Appellant cannot demonstrate he is now entitled
to immediate release as he is still serving the twenty-four month sentence
imposed by the Scioto County Common Pleas Court. Taking judicial notice
of the Ohio Department of Rehabilitation and Corrections website, it appears
that Appellant was admitted to prison and began serving his Scioto County
sentence on July 7, 2015, and he is not scheduled to complete that sentence
until December 18, 2016. State v. Bell, 2nd Dist. Montgomery No. 24665,
2011-Ohio-6799 (taking judicial notice that an offender’s name no longer
2
It is appropriate to consider evidence outside the appellate record in determining whether an appeal is
moot or justiciable. State v. Popov, 4th Dist. Lawrence No. 10CA26,
2011-Ohio-372, ¶ 4.
Highland App. No. 15CA14 10
appeared on the Ohio Department of Rehabilitations and Corrections
website). Thus, Appellant is not entitled to immediate release from
confinement as he is still serving a court-imposed sentence. Habeas will not
lie where the petitioner cannot demonstrate he is entitled to immediate
release from confinement. “ ‘[H]abeas corpus is proper in the criminal
context only if the petitioner is entitled to immediate release from prison or
some other physical confinement.’ ” Keith v. Bobby,
117 Ohio St.3d 470,
2008-Ohio-1443,
884 N.E.2d 1067, ¶ 12; quoting Scanlon v. Brunsman,
112
Ohio St.3d 151,
2006-Ohio-6522,
858 N.E.2d 411, ¶ 4.
{¶14} Accordingly, because Appellant's petition suffered from
multiple fatal filing defects, the trial court should have dismissed it on
procedural grounds. However, because the trial court denied the petition on
the merits, we reverse the judgment the trial court and remand this matter
with instructions to dismiss the petition.
JUDGMENT REVERSED AND
REMANDED.
Highland App. No. 15CA14 11
Harsha, J., dissenting:
{¶15} I disagree with the portion of the opinion adopting “the bulk of
Appellant’s factual and case history from the State’s brief” insofar as these
facts are not supported by either the record on appeal or facts that are
susceptible of judicial notice.
{¶16} Moreover, I disagree with the majority’s suggestion that the
trial court was incorrect when it stated that habeas corpus is generally not
available to challenge parole conditions. See generally Sullivan v. Bunting,
133 Ohio St.3d 81,
2012-Ohio-3923,
975 N.E.2d 999, ¶ 15 (“habeas corpus
is generally not available to challenge parole conditions that allegedly
restrained a petitioner's liberty”).
{¶17} The majority opinion is correct that the merits of Wright’s
claim were not properly before the trial court because the petition was fatally
defective and subject to dismissal because it did not comply with the
verification and commitment-paper requirements of R.C. 2725.04. See
Hughley v. Saunders, 123 Ohio St.3d 90,
2009-Ohio-4089,
914 N.E.2d 317,
¶ 1. However, I would simply affirm the judgment denying the petition,
albeit on the procedural basis noted by the majority. See State v. Marcum,
4th Dist. Hocking No. 14CA13,
2014-Ohio-5373, ¶ 27, quoting Stammco,
L.L.C. v. United Tel. Co. of Ohio,
136 Ohio St.3d 231,
2013-Ohio-3019, 994
Highland App. No. 15CA14
12
N.E.2d 408, ¶ 51 (“ ‘a reviewing court should not reverse a correct judgment
merely because it is based on erroneous reasons’ ”).
Highland App. No. 15CA14 13
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED AND CAUSE
REMANDED and that Appellant recover of Appellee any costs herein.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Highland County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, J.: Concurs in Judgment Only.
Harsha, J.: Dissents with Dissenting Opinion.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
