Draughon v. Jenkins

• Decision Date: 18 July 2016
• Docket Number: Case No. 16CA3528
• Citation: 2016 Ohio 5364
• Parties: MICKEY DRAUGHON, Petitioner-Appellant, v. CHARLOTTE JENKINS, WARDEN, Respondent-Appellee.
• Court: Ohio Court of Appeals

2016 Ohio 5364

MICKEY DRAUGHON, Petitioner-Appellant, v. CHARLOTTE JENKINS, WARDEN, Respondent-Appellee.

Case No. 16CA3528

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY

July 18, 2016

DECISION AND JUDGMENT ENTRY

APPEARANCES:

Mickey Draughon, Chillicothe, OH, pro se appellant.

Michael DeWine, Ohio Attorney General, and Jerri L. Fosnaught, Ohio Assistant Attorney General, Columbus, OH, for appellee.

Harsha, J.

{¶1} In 1997 Mickey Draughon was convicted of rape with a sexually-violent-predator specification and other crimes. Several years after his conviction and his direct appeal, the Supreme Court of Ohio ruled that a conviction of the underlying sexually violent offense cannot be used to support a sexually-violent-predator specification that is alleged in the same indictment, i.e. only a conviction that existed prior to the indictment can support such a specification. In 2015 Draughon filed a petition for a writ of habeas corpus, claiming the Supreme Court's decision applied retrospectively to his conviction. After the trial court dismissed his petition, he filed this appeal.

{¶2} First, Draughon asserts that the trial court erred in dismissing his petition for failure to state a claim upon which relief can be granted. However, even if the specification in his indictment was defective as he contends, Draughon had an adequate remedy by appeal or postconviction motion to contest the application of that specification to his sentence. Therefore, his claim was not cognizable in habeas corpus. And contrary to his contentions, the trial court did not fraudulently convert Draughon's habeas corpus claim into something he was not arguing by substituting the term "retroactive" for his term "retrospective." The terms "retroactive" and "retrospective" may be used interchangeably in this context. And contrary to his assertion, the trial court properly applied higher court precedent.

{¶3} Next Draughon argues that the trial court erred in dismissing his habeas corpus petition based on res judicata. Because the trial court could properly take judicial notice of his prior unsuccessful appeals where he raised the same claim, his argument is meritless.

{¶4} Finally, Draughon contends that the trial court erred in dismissing his habeas corpus petition based on a failure to comply with R.C. 2969.25(A). Although Draughon's underlying substantive contention about R.C. 2969.25(A) is right, the trial court's dismissal of his petition was ultimately correct even if this alternate rationale was not. We overrule Draughon's assignments of error and affirm the judgment of the trial court.

I. FACTS

{¶5} The Franklin County Grand Jury returned an indictment charging Draughon with multiple felonies and multiple specifications; relevant for our purposes is the count for rape with a sexually-violent-predator specification. A jury convicted Draughon of all the charges and the trial court found him guilty of the specifications. The court sentenced him to an aggregate prison term of 20 years to life and adjudicated him a sexual predator.

{¶6} On direct appeal the Tenth District Court of Appeals affirmed, and the Supreme Court of Ohio denied Draughon's motion to file a delayed appeal. See State v. Draughon, 10th Dist. Franklin No. 97AP11-1536, 1998 WL 614637 (Sept. 1, 1998), motion for leave to file delayed appeal denied, State v. Draughon, 84 Ohio St.3d 1473, 704 N.E.2d 580 (1999).

{¶7} Several years later the Supreme Court of Ohio held that "[c]onviction of a sexually violent offense cannot support the specification that the offender is a sexually violent predator as defined in R.C. 2971.01(H)(1) if the conduct leading to the conviction and the sexually violent predator specification are charged in the same indictment." State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283, syllabus. However, it did not indicate that the error involved a jurisdictional defect.

{¶8} In 2011 Draughon filed motions to vacate his sentence based in part on his claim that under the Supreme Court's decision in Smith, his rape conviction could not support the sexually-violent-predator specification. After the trial court denied the motions, the Tenth District Court of Appeals affirmed. State v. Draughon, 10th Dist. Franklin Nos. 11AP-703 and 11AP-995, 2012-Ohio-1917. At ¶ 24 of its opinion the court of appeals rejected Draughon's argument that the Supreme Court's holding in Smith applied retroactively to his closed criminal case:

Appellant urges that Smith applies to his case and, therefore, the trial court erroneously found him guilty of the specification because the underlying rape conviction did not predate the indictment. However, this court has held that Smith does not apply retroactively to closed cases. State v. Haynes, 10th Dist. No. 01AP-430 (Jan. 26, 2006) (memorandum decision). Accordingly, at the time appellant was convicted and sentenced, the trial court properly could find appellant guilty of the sexually violent predator specification based upon conduct alleged in the indictment.

{¶9} The Supreme Court of Ohio did not accept Draughon's discretionary appeal from the court of appeals' judgment. State v. Draughon, 132 Ohio St.3d 1516, 2012-Ohio-4021, 974 N.E.2d 113.

{¶10} In 2013 Draughon filed a motion for resentencing, again arguing that in the absence of evidence of a qualifying prior conviction the trial court erred in imposing an enhanced sentence for his rape conviction. The trial court denied the motion, and the Tenth District Court of Appeals affirmed. State v. Draughon, 10th Dist. Franklin No. 13AP-345, 2014-Ohio-1460. The court of appeals held that res judicata barred Draughon from relitigating this claim. Id. at ¶ 14. Further attempts by Draughon to appeal were rejected by the Supreme Court of Ohio and the Supreme Court of the United States. State v. Draughon, 139 Ohio St.3d 1419, 2014-Ohio-2487, 10 N.E.3d 739, petition for writ of certiorari denied Draughon v. Ohio, ___ U.S. ___, 135 S.Ct. 762, 190 L.Ed.2d 635 (2014).

{¶11} Finally, in 2015 Draughon filed a petition in the Ross County Court of Common Pleas for a writ of habeas corpus to compel his immediate release from the Chillicothe Correctional Institution. Draughon argued that the Franklin County trial court had lacked subject-matter jurisdiction to add a sentencing enhancement for his rape conviction because the sexually-violent-predator specification in the indictment was improper under Smith. He claimed that Smith should have been "retrospectively" applied to his convictions and sentence.

{¶12} The common pleas court granted the warden's motion and dismissed Draughon's petition. The court determined that: (1) Draughon had adequate remedies in the ordinary course of law to raise his claim; (2) res judicata precluded Draughon from raising the same claim that he previously unsuccessfully raised; (3) Draughon had not demonstrated that he is entitled to immediate release from confinement when his maximum life sentence had not expired; and (4) Draughon failed to comply with R.C. 2969.25(A) by not filing an affidavit describing each civil action or appeal from a civil action that he had filed in the previous five years in any state or federal court.

II. ASSIGNMENTS OF ERROR

{¶13} Draughon assigns the following errors for our review:

1. APPELLANT CONTENDS THAT (1) THE TRIAL COURT ABUSED ITS DISCRETION, COMMITTED PLAIN ERROR AND DENIED HIM DUE PROCESS AND EQUAL PROTECTION OF THE LAW PURSUANT TO THE 1ST, 5TH, AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTON WHEN THE TRIAL COURT DELIBERATELY CONVERTED APPELLANT'S ASSIGNMENT OF ERROR INTO AN ISSUE APPELLANT NEVER INTENDED IT TO BE, AND (2) WHERE THE TRIAL COURT FAILED TO ADHERE TO WELL-ESTABLISHED UNITED STATES SUPREME COURT LAW.

2. APPELLANT CONTENDS THAT THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED APPELLANT DUE PROCESS AND EQUAL PROTECTION OF THE LAW UNDER THE 1ST, 5TH, AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION WHERE THE TRIAL COURT JUDGE REFUSED TO ACCEPT APPELLANT'S STATEMENT THAT HE FILED HIS R.C. 2969.25(A) AFFIDAVIT WITH HIS HABEAS PETITION AND EVIDENCE.

3. APPELLANT SUBMITS THAT THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED HIM DUE PROCESS AND EQUAL PROTECTION OF THE LAW UNDER THE 1ST, 5TH, AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION WHEN THE TRIAL COURT ERRONEOUSLY APPLIED THE DOCTRINE OF RES JUDICATA TO A MOTION TO DISMISS, WHICH IS CONTRARY TO LAW.

III. STANDARD OF REVIEW

{¶14} "A motion to dismiss for failure to state a claim upon which relief can be granted tests the sufficiency of the complaint." Volbers-Klarich v. Middletown Mgt., Inc., 125 Ohio St.3d 494, 2010-Ohio-2057, 929 N.E.2d 434, ¶ 11. "In order for a trial court to dismiss a complaint under Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted, it must appear beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to the relief sought." Ohio Bur. of Workers' Comp. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶ 12; Rose v. Cochran, 4th Dist. Ross No. 11 CA3243, 2012-Ohio-1729, ¶ 10. This same standard applies in cases involving claims for extraordinary relief, including habeas corpus. Boles v. Knab, 130 Ohio St.3d 339, 2011-Ohio-5049, 958 N.E.2d 554, ¶ 2 ("Dismissal under Civ.R. 12(B)(6) for failure to state a claim was warranted because after all factual allegations of [petitioner's habeas corpus] petition were presumed to be true and all reasonable inferences therefrom were made in his favor, it appeared beyond doubt that he was not entitled to the requested extraordinary relief in habeas corpus"); Lloyd v. Robinson, 4th Dist. Ross No. 14CA3462, 2015-Ohio-1331, ¶ 11.

IV. LAW AND ANALYSIS

A. Adequate Remedy in the Ordinary Course of Law

{¶15} In his first assignment of error Draughon asserts that the trial court erred by denying him due process and equal protection when it deliberately converted his claim into something he...