Jefferson v. Morris
Decision Date | 17 May 1988 |
Docket Number | No. 1696,1696 |
Citation | 48 Ohio App.3d 81,548 N.E.2d 296 |
Court | Ohio Court of Appeals |
Parties | JEFFERSON, Appellant, v. MORRIS, Superintendent, Southern Ohio Correctional Facility, Appellee. |
Syllabus by the Court
A void parole has no effect on the original judgment; and, where the sentence is lawful, a prisoner at large on an illegal and void parole is on the same plane as an escapee. Accordingly, no rights of the prisoner are violated under a purported parole, which is invalid, when he is returned to prison. The paroling authority can recommit a prisoner who is released by mistake when his sentence has not expired.
Sell Jefferson, pro se.
Anthony J. Celebrezze, Jr., Atty. Gen., and Alexander G. Thomas, Columbus, for appellee.
This is an appeal from a judgment entered by the Scioto County Court of Common Pleas dismissing the petition for a writ of habeas corpus filed pursuant to R.C. 2725.01 et seq. by Sell Jefferson, petitioner below and appellant herein.
Appellant's sole assignment of error asserts:
"The trial court committed reversible error in dismissing appellant's petition for writ of habeas corpus where appellant claimed that his constitutional rights were violated in post-trial proceedings by prison officials where appellant had been released from prison and the prison officials reacquired custody of appellant in violation of the Due Process Clause of the United States Constitution."
From the averments of the petition and memorandum the following appears. On April 15, 1987, appellant filed a "Petition For Writ of Habeas Corpus and/or Rule To Show Cause" in the Scioto County Court of Common Pleas. In his petition, appellant avers, inter alia, that he was sentenced by the Cuyahoga County Court of Common Pleas on May 7, 1975 to a term of seven to twenty-five years' imprisonment and a term of life imprisonment for convictions of aggravated robbery and aggravated murder on July 21, 1975, in case No. CR-17177. Appellant further avers that he was subsequently released on parole in January 1981 and was granted a "Final Release" by the Ohio Adult Parole Authority. Appellant concedes in his memorandum in support of his petition that while on parole appellant "became involved in some forgeries * * * " and is now serving sentences for such offenses. 1 Appellant also avers in his petition that on October 2, 1985, appellant was sent to Chillicothe Correctional Institute to serve the term imposed in case No. CR-17177, and that appellant was denied all credit for time served on the sentence before he was paroled. Finally, appellant avers that he is being unconstitutionally detained in the Southern Ohio Correctional Facility.
Appellant's assignment of error essentially asserts that since appellant had been discharged from parole by the Ohio Adult Parole Authority, the Cuyahoga County Court of Common Pleas was without jurisdiction, statutory or otherwise, to issue process for re-confinement of appellant. An action in habeas corpus is civil in nature rather than criminal. Henderson v. James (1895), 52 Ohio St. 242, 259, 39 N.E. 805, 807; State, ex rel. Colby, v. Reshetylo (1972), 30 Ohio App.2d 183, 184, 59 O.O.2d 306, 307, 284 N.E.2d 188, 189. It is axiomatic that in order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts which entitle him to prevail. O'Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, syllabus; Egan v. National Distillers & Chemical Corp. (1986), 25 Ohio St.3d 176, 186, 25 OBR 243, 252, 495 N.E.2d 904, 912 (Douglas, J., concurring); Civ.R. 12(B)(6).
Appellant concludes that he has no other plain and speedy remedy at law to test the legality of his confinement and for that reason the only available remedy to appellant is a writ of habeas corpus. No claim is asserted that the court imposing sentence upon the 1975 convictions lacked jurisdiction of the person or subject matter.
The Ohio Supreme Court in Freeman v. Maxwell (1965), 4 Ohio St.2d 4, 33 O.O.2d 2, 210 N.E.2d 885, held the statutory habeas corpus relief pursuant to R.C. Chapter 2725 to be available only when the sentencing court lacks jurisdiction by reason of R.C. 2725.05, which reads as follows:
Even though appellant was recommitted to serve his sentence by a subsequent order of the trial court, he is being held under the original judgment and sentence, and since the sentencing court had jurisdiction, relief under R.C. Chapter 2725 is not available to appellant.
Appellant argues he is being held not upon the original judgment of conviction and sentence, but under a recommitment judgment which the court lacked jurisdiction to enter. Assuming, arguendo, that appellant is being held pursuant to the recommitment judgment, we hold appellant nevertheless has not stated a claim for relief.
Appellant argues the applicability of decisions of the federal courts that a prisoner erroneously paroled without his fault cannot be made to serve the remainder of his sentence. These holdings are summarized in United States v. Merritt (D.D.C.1979), 478 F.Supp. 804, 806-807, as follows:
The general rule, however, is stated as follows:
(Footnotes omitted.) 67A Corpus Juris Secundum (1978) 95, Pardon & Parole, Section 57. See, also, Harris v. Cupp (1971), 5...
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