Adkins v. McFaul, 96-658

• Court: United States State Supreme Court of Ohio
• Writing for the Court: PER CURIAM; MOYER
• Citation: 667 N.E.2d 1171,76 Ohio St.3d 350
• Parties: ADKINS, Appellant, v. McFAUL, Warden, Appellee.
• Docket Number: No. 96-658,96-658
• Decision Date: 21 August 1996

Page 350

76 Ohio St.3d 350 667 N.E.2d 1171 ADKINS, Appellant,
v.
McFAUL, Warden, Appellee. No. 96-658. Supreme Court of Ohio. Submitted July 10, 1996.
Decided Aug. 21, 1996.

[667 N.E.2d 1172] According to appellant, Jackie Adkins, he was sentenced to two consecutive terms of six months for misdemeanor convictions of vehicular homicide and driving while under the influence of alcohol. Adkins served the sentence in the Cuyahoga County Jail in the custody of respondent, Cuyahoga County Sheriff Gerald T. McFaul. In February 1996, prior to the expiration of his one-year sentence, Adkins filed a petition for a writ of habeas corpus in the Court of Appeals for Cuyahoga County. Adkins claimed that he was entitled

Page 350

to immediate release because he should have received good-time credit for his time served in county jail. The court of appeals sua sponte dismissed the petition.

The cause is now before this court upon an appeal as of right.

Paul Mancino, Jr., Cleveland, for appellant.

Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and George J. Sadd, Assistant Prosecuting Attorney, for appellee.

PER CURIAM.

As a preliminary matter, it appears that Adkins's one-year jail term has been completed. He states in his petition that "his release date for a full service of one year in jail is June 7, 1996." Ordinarily when there is no case in controversy, there will be no appellate review unless the underlying legal issue is capable of repetition yet evading review. State v. Bistricky (1990), 51 Ohio St.3d 157, 158-159, 555 N.E.2d 644, 645; State ex rel. Fenley v. Kyger (1995), 72 Ohio St.3d 164, 165, 648 N.E.2d 493, 494. The issue involved in this appeal is whether inmates serving sentences in county jails are entitled to good-time credit comparable to that received under former R.C. 2967.19(A) ¹ for confinement in a state correctional institution. This issue is a matter of public importance which has never been addressed by this court. In addition, given the relatively brief sentences involved for persons confined in county jails, the good-

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credit issue is capable of repetition yet could evade review by this court. Therefore, we now proceed to consider the merits of this appeal rather than dismiss it as moot.

Adkins contends that the court of appeals erred in dismissing his habeas corpus petition. In order to avoid dismissal, a petitioner must state with particularity the extraordinary circumstances entitling him to habeas corpus relief. State ex rel. Jackson v. McFaul (1995), 73 Ohio St.3d 185, 187, 652 N.E.2d 746, 748. Unsupported conclusions of the petition are not considered admitted and are insufficient to withstand a motion to dismiss. Hammond v. Dallman (1992), 63 Ohio St.3d 666, 668, 590 N.E.2d 744, 746, fn. 5.

Adkins claims that he was entitled to a writ of habeas corpus compelling his immediate release from county jail after he had served seventy percent of his one-year term in February 1996. Habeas corpus is available when an individual's maximum sentence has expired and he is being held unlawfully. Morgan v. Ohio Adult Parole Auth. (1994), 68 Ohio St.3d 344, 346, 626 N.E.2d 939, 941.

Former R.C. 2967.19(A) provided a deduction of thirty percent of a minimum or definite sentence for a person confined in a state correctional institution "prorated for each month of the sentence during which he faithfully has observed the rules of the institution." See, also, State ex rel. Fuller v. Wilson (1991), 60 Ohio St.3d 67, 573 N.E.2d 595. Adkins concedes that the R.C. 2967.19(A) good-time credit provision is limited by the General Assembly to persons confined in [667 N.E.2d 1173] state correctional institutions,...