[Cite as Midgett v. Sheldon,
2021-Ohio-3096.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DAJUAN MIDGETT : JUDGES:
: Hon. W. Scott Gwin, P.J.
Petitioner : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
J. STEVE SHELDON, SHERIFF : Case No. 2021 CA 0059
:
Respondent : OPINION
CHARACTER OF PROCEEDING: Writ of Habeas Corpus
JUDGMENT: Dismissed
DATE OF JUDGMENT: September 9, 2021
APPEARANCES:
For Petitioner For Respondent
DARIN AVERY GARY BISHOP
105 Sturges Avenue Prosecuting Attorney
Mansfield, OH 44903 VICTORIA MUNSON
Assitant Prosecuting Attorney
38 South Park Street
Mansfield, OH 44902
Richland County, Case No. 2021 CA 0059 2
Wise, Earle, J.
{¶ 1} On August 13, 2021, Petitioner, Dajuan Midgett, filed a Petition for Writ of
Habeas Corpus. Mr. Midgett asserts he is entitled to immediate release from the Richland
County Jail because the trial court has no authority to hold him pending a jury trial.
Respondent, Sheriff J. Steve Sheldon, Richland County, filed a Motion to Dismiss or in
the Alternative Motion for Summary Judgment. For the reasons that follow, we grant
Sheriff Sheldon’s Motion to Dismiss.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On July 7, 2021, this Court issued a decision reversing Mr. Midgett’s
conviction for various drug offenses, on speedy trial grounds, and vacating his sentence.
See State v. Dajuan Midgett, 5th Dist. Richland No. 2020 CA 0058, 2021-Ohio-2317.
{¶ 3} The next day, the state appealed our decision to the Ohio Supreme Court
and filed a Motion for Stay. (Ohio Supreme Court Case No. 2021-0850) On July 9, 2021,
the state moved the Richland County Court of Common Pleas to “issue a holder on
Defendant” in the underlying criminal case (Richland Case No. 2019-CR-520) because it
was unlikely the Supreme Court would promptly grant the stay motion. On July 9, 2021,
the trial court issued an order stating:
As the State has filed its Notice of Appeal along with a Motion to
Stay before the Ohio Supreme Court on July 8, 2021, this matter remains
pending. Therefore, the Ohio Department of Rehabilitations (sic) and
Corrections shall hold Defendant in custody until the Richland County
Sheriff’s Office can pick up Defendant for transport to the Richland
County Jail, no later than July 16, 2021.
Richland County, Case No. 2021 CA 0059 3
(Judgment Entry, attached to Petition.)
{¶ 4} On July 13, 2021, the trial court issued another Judgment Entry
providing, in pertinent part:
It is hereby ordered that the Richland County Sheriff’s Office shall
convey Dajuan Midgett … from the Belmont Correctional Institution to
the Richland County Court of Common (sic) no later than July 16, 2021
for a Jury Trial in accordance with the Fifth District Court of Appeals (sic)
decision. After the hearing, the Richland County Sheriff’s Office shall
reconvey the defendant as appropriate. IT IS SO ORDERED.
(Judgment Entry, attached to Petition.)
{¶ 5} On July 19, 2021 the trial court set bond for Mr. Midgett in the amount of
$150,000. (Judgment Entry, attached to Petition). Mr. Midgett maintains under R.C.
2945.73(D), “ ‘[w]hen an accused is discharged pursuant to division (B) or (C) of this
section, such discharge is a bar to any further criminal proceedings against him based on
the same conduct.’ ” (Petition, ¶ 7) As of the time of filing this opinion, the Ohio Supreme
Court has not decided whether to exercise jurisdiction in the pending appeal or ruled on
the state’s pending Motion for Stay.
{¶ 6} On August 19, 2021, the Richland County Prosecutor’s Office, on behalf of
Sheriff Sheldon, filed a Motion to Dismiss or in the Alternative Motion for Summary
Judgment. Sheriff Sheldon maintains due to our decision issued in Mr. Midgett’s direct
appeal, ODRC could no longer hold him under R.C. 2953.13. (Motion to Dismiss, p. 1)
This statute provides, in pertinent part:
Richland County, Case No. 2021 CA 0059 4
When a defendant has been committed to a state correctional
institution and the judgment by virtue of which the commitment was made
is reversed on appeal, and the defendant is entitled to discharge … the
clerk of the court reversing the judgment or remanding the case, under
the seal of the court, shall forthwith certify the reversal or remand to the
warden of the state correctional institution. The warden, on receipt of the
certificate, if a discharge of the defendant is ordered, shall forthwith
discharge the defendant from the state correctional institution.
{¶ 7} In response to the mandate of R.C. 2953.13, the trial court issued an order
conveying Mr. Midgett to the Richland County Jail where he remains to date.
CIV.R. 12(B)(6) STANDARD AND HABEAS CORPUS ELEMENTS
{¶ 8} Sheriff Sheldon asks the Court to dismiss Mr. Midgett’s Petition under either
Civ.R. 12(B)(6) or Civ.R. 56. We find dismissal proper under Civ.R. 12(B)(6) because Mr.
Midgett cannot state a claim entitling him to relief.
{¶ 9} The purpose of a Civ.R. 12(B)(6) motion is to test the sufficiency of the
complaint. State ex rel. Boggs v. Springfield Loc. School Dist. Bd. of Edn., 72 Ohio St.3d
94, 95,
647 N.E.2d 788 (1995). In order for a case to be dismissed for failure to state a
claim, it must appear beyond doubt that, even assuming all factual allegations in the
complaint are true, the nonmoving party can prove no set of facts that would entitle that
party to the relief requested. Keith v. Bobby,
117 Ohio St.3d 470,
2008-Ohio-1443,
884
N.E.2d 1067, ¶ 10.
{¶ 10} If a petition does not satisfy the requirements of a properly filed petition for
writ of habeas corpus or does not present a facially viable claim, it may be dismissed on
Richland County, Case No. 2021 CA 0059 5
motion by the respondent or sua sponte by the court. Flora v. State, 7th Dist. Belmont No.
04 BE 51, 2005-Ohio-2383, ¶ 5. Finally, we are permitted to consider material
incorporated within a complaint as part of that pleading, without having to convert the
matter to a summary judgment proceeding. See Boyd v. Archdiocese of Cincinnati, 2d
Dist. Montgomery No. 25950,
2015-Ohio-1394, ¶ 14 (“Material incorporated in a
complaint may be considered part of the complaint for purposes of determining a Civ.R.
12(B)(6) motion to dismiss.”)
{¶ 11} “To be entitled to a writ of habeas corpus, a petitioner must show that he is
being unlawfully restrained of his liberty and that he is entitled to immediate release from
prison or confinement.” State ex rel. Whitt v. Harris, 157 Ohio St.3d 384,
2019-Ohio-4113,
137 N.E.3d 71, ¶ 6, citing R.C. 2725.01; State ex rel. Cannon v. Mohr,
155 Ohio St.3d
213,
2018-Ohio-4184,
120 N.E.3d 776, ¶ 10. “[A]n inmate is not usually eligible for habeas
relief until his maximum sentence has expired.” [Citation omitted.] Pence v. Bunting,
143
Ohio St. 3d 532,
2015-Ohio-2026,
40 N.E.3d 1058, ¶ 9. Finally, habeas corpus is not
available when an adequate remedy at law exists. Billiter v. Banks,
135 Ohio St.3d 426,
2013-Ohio-1719,
988 N.E.2d 556, ¶ 8.
ANALYSIS
1. This Court lost jurisdiction to enforce its decision rendered in the
direct appeal upon the state’s appeal to the Ohio Supreme Court.
{¶ 12} First, Mr. Midgett contends because the Ohio Supreme Court has neither
ruled on the state’s request for a stay nor decided to exercise jurisdiction in the state’s
pending appeal, the matter is not pending in the Ohio Supreme Court. Mr. Midgett
Richland County, Case No. 2021 CA 0059 6
concludes this Court therefore has jurisdiction to enforce its order of July 7, 2021.
(Petition, ¶ 11) We disagree.
{¶ 13} Mr. Midgett’s argument pertains to our jurisdiction to act in his direct appeal,
Richland Case No. 2020 CA 0058, while the state’s appeal is pending before the Ohio
Supreme Court. In State v. Washington, 137 Ohio St.3d 427,
2013-Ohio-4982,
999
N.E.2d 661, the Ohio Supreme Court denied a motion to dismiss pending before the Court
where the trial court resentenced a defendant, in response to the court of appeals’
remand, after the state appealed to the Supreme Court. Id. at ¶ 8. The Supreme Court
found the trial court had no jurisdiction to resentence the defendant once the state filed
its notice of appeal and therefore denied appellee’s dismissal motion. Id. The Court
explained: “An appeal is perfected upon the filing of a written notice of appeal. R.C.
2505.04. Once a case has been appealed, the trial court loses jurisdiction except to take
action in aid of the appeal.” [Citations omitted.] Id.
{¶ 14} Mr. Midgett cites State v. Thomas, 111 Ohio App.3d 510, 515,
676 N.E.2d
903 (8th Dist.1996) in support of his argument. The Thomas court cited State v. Murphy,
49 Ohio St.3d 293,
551 N.E.2d 1292 (1990). Murphy held a court of appeals retains
jurisdiction until the Ohio Supreme Court exercises its discretionary and exclusive
jurisdiction under Section 2(B)(2)(b), Article IV of the Ohio Constitution.
Id. at syllabus.
We acknowledge the Eighth District’s decision in Thomas and the Supreme Court’s
decision in Murphy, appear to conflict with the Supreme Court’s Washington decision.
{¶ 15} The Eighth District Court of Appeals noted the conflict between Murphy and
Washington in State v. Thomas, 8th Dist. Cuyahoga No. 103406, 2016-Ohio-8326.
However, the Eighth District concluded, as we do here, that “we must follow Washington,
Richland County, Case No. 2021 CA 0059 7
because it is the most recent Supreme Court case to apply the rule regarding jurisdiction
and the filing of a notice of appeal.” Id. at ¶ 13.
{¶ 16} Therefore, even though the Ohio Supreme Court has not yet decided
whether to exercise jurisdiction in the pending appeal, based on Washington, we lost
jurisdiction to enforce our judgment when the state filed its Notice of Appeal on July 8,
2021. In fact, the only action we are permitted to take is action in aid of the pending
appeal. See generally Yee v. Erie Cty. Sheriff's Dept., 51 Ohio St.3d 43, 44,
553 N.E.2d
1354 (1990), citing In re Kurtzhalz,
141 Ohio St. 432,
48 N.E.2d 657 (1943), paragraph
two of the syllabus, (“When a case has been appealed, the trial court retains all jurisdiction
not inconsistent with the court of appeals' jurisdiction to reverse, modify, or affirm the
judgment.”) Enforcing our order that reversed Mr. Midgett’s conviction and vacated his
sentence would not be an action in aid of the state’s pending appeal.
2. The state cannot conduct another trial because this Court’s judgment
was automatically stayed when the state appealed.
{¶ 17} Second, Mr. Midgett contends the Richland County Common Pleas Court
has no authority to try him again, in the same case, and therefore Sheriff Sheldon cannot
keep him incarcerated pending trial. (Petition, ¶ 13) Sheriff Sheldon indicates in his
response that Mr. Midgett is not being held in anticipation of a retrial. Instead, Sheriff
Sheldon explains the inclusion of this language in the Judgment Entry was a mistake and
it should have stated Mr. Midgett was being transported to Richland County for a bond
hearing. (Motion to Dismiss, p. 3)
{¶ 18} This may have been the purpose of Mr. Midgett’s transfer, but it is well-
established that a court speaks only through its journal. State ex rel. Industrial Comm. v.
Day, 136 Ohio St. 477,
26 N.E.2d 1014 (1940), paragraph one of the syllabus. Here, the
Richland County, Case No. 2021 CA 0059 8
record indicates Mr. Midgett was transported to the Richland County Jail for a trial in
accordance with our decision. We cannot accept Sheriff Sheldon’s explanation that Mr.
Midgett was transported for a bond hearing, and the trial court merely made a mistake
when it indicated he was transported for a new trial on the previous criminal charges.
{¶ 19} However, this point is not dispositive of whether Mr. Midgett is entitled to be
released from jail. Rather, we turn to the Ohio Supreme Court’s decision in State v.
Simmans, 21 Ohio St.2d 258,
257 N.E.2d 344 (1970) to answer this question. In
Simmans, the court of appeals vacated a conviction due to problems with an indictment.
Id. at 260. The state appealed.
Id. Defendant was released from bond and custody.
Id. at
264. No order from the Ohio Supreme Court stayed the court of appeals’ judgment.
Id. at
263.
{¶ 20} The Supreme Court found such an order was not necessary. Id. at 264. The
Court cited R.C. 2505.09 which provides that no appeal shall act as a stay of execution
until a supersedeas bond is executed by the appellant.
Id. However, the Court noted R.C.
2505.12 excuses the execution of the bond requirement by any public officer of the state
or political subdivision.
Id.
{¶ 21} Based on these two statutes, the Court set forth the following propositions:
(1) The appeal to this court is by the state, through the prosecuting
attorney, to reverse a judgment adverse to it in a criminal proceeding,
pursuant to R.C. 2953.14; and (2) that judgment is automatically
stayed without bond given by, or a specific request of, the prosecuting
attorney who is a public officer of a political subdivision of the state
Richland County, Case No. 2021 CA 0059 9
properly prosecuting the appeal … in his representative capacity as
such officer.
(Emphasis added.) Id.
{¶ 22} Simmans has not been overruled and remains good law in Ohio. Therefore,
based on Simmans, when the state appealed our decision to the Ohio Supreme Court,
our decision was automatically stayed. Further, the trial court properly ordered Mr. Midgett
conveyed to the Richland County Jail because a defendant, in a state penitentiary who
has his or her sentence suspended, must be removed to the county jail where he or she
was convicted pending the decision on appeal or termination of the suspension of
sentence and may be released on bail. See R.C. 2953.11. Here, the trial court complied
with the statute by transporting Mr. Midgett to the Richland County Jail and setting bail in
the amount of $150,000.
Richland County, Case No. 2021 CA 0059 10
{¶ 23} For the foregoing reasons, we grant Sheriff Sheldon’s Motion to Dismiss.
{¶ 24} MOTION GRANTED.
{¶ 25} CAUSE DISMISSED.
{¶ 26} COSTS TO PETITIONER.
{¶ 27} IT IS SO ORDERED.
By Earle E. Wise, Jr., J.
Gwin, P.J. and
Delaney, J. concur.
EEW/ac
[Cite as Midgett v. Sheldon, 2021-Ohio-3096.]
