Hammond v. Dallman

• Decision Date: 20 May 1992
• Docket Number: No. 91-1686,91-1686
• Citation: 63 Ohio St.3d 666,590 N.E.2d 744
• Parties: HAMMOND v. DALLMAN, Warden.
• Court: Ohio Supreme Court

Page 666

63 Ohio St.3d 666

590 N.E.2d 744

HAMMOND v. DALLMAN, Warden.

No. 91-1686.

Supreme Court of Ohio.

Submitted Nov. 12, 1991.

Decided May 20, 1992.

In his petition for a writ of habeas corpus, petitioner, Billy R. Hammond, states that, although first incarcerated in the Clinton County Jail and thereafter in the Lebanon Correctional Institute, he has never been charged, indicted, or convicted of any crime, and that no court has ever obtained jurisdiction over him.

Respondent filed a motion to dismiss attaching copies of certified court documents showing that in 1987 petitioner was indicted on three counts of attempted murder, one with a firearm specification, and one count of aggravated burglary with a firearm specification; that he was convicted of three counts of felonious assault and the firearm specification, and the aggravated burglary with firearm specification; and that he was sentenced to concurrent terms on all convictions.

Petitioner then filed a motion for summary judgment contending that the indictment was insufficient in general terms, did not conclude "against the peace and dignity of the state of Ohio," and was not signed by the foreman of the grand jury.

Billy R. Hammond, pro se.

Lee I. Fisher, Atty. Gen., and John J. Gideon, Columbus, for respondent.

PER CURIAM.

For the following reasons, we grant the writ, but deny relief and remand petitioner to custody.

In Lippert v. Engle (1977), 49 Ohio St.2d 281, 3 O.O.3d 434, 361 N.E.2d 239, we held that to withstand a motion to dismiss, a petition in habeas corpus must conform to R.C. 2725.04 ¹ and attack the jurisdiction of the sentencing court. We find the petition in this case barely adequate to meet this existing standard and grant the writ pursuant to R.C. 2725.06. ²

Normally, the granting of the writ would cause us to order respondent to make a return pursuant to R.C. 2725.12 and 2725.14. ³ However, we treat respondent's motion to dismiss as a return of the writ and remand petitioner to custody. See State, ex rel. Spitler, v. Seiber (1968), 16 Ohio St.2d 117, 45 O.O.2d 463, 243 N.E.2d 65.

The return, supported by the proper authenticated documents, establishes the jurisdiction of the trial court to have sentenced petitioner, notwithstanding his attack on the indictment in his motion for summary judgment. In State v. Wozniak (1961), 172 Ohio St. 517, at 522-523, 18 O.O.2d 58, at 61, 178 N.E.2d 800, at 804, we held that an indictment cannot be collaterally attacked after a judgment of conviction "because the judgment of conviction necessarily binds a defendant, where the court rendering it had jurisdiction of the person of the defendant and also jurisdiction of the subject matter, i.e., jurisdiction to try the defendant for the crime for which he was convicted. * * * " ⁴

Moreover, had petitioner disclosed his claim with particularity, the writ would not have been granted under R.C. 2725.06 because it would not have appeared from the petition that the writ ought to issue. Accordingly, we hold, consistent with other recent decisions, ⁵ that to avoid dismissal under R.C. 2725.06, a petition filed by or on behalf of a petitioner "alleged to be restrained of his liberty [who] is in the custody of an officer under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record * * * " ⁶ must state with particularity why the court or magistrate lacked jurisdiction to enter the process, judgment, or order. Otherwise, it will appear that the writ ought not to be granted, ⁷ and the petition will be dismissed pursuant to R.C. 2725.06.

Accordingly, we remand the petitioner to custody.

Writ allowed; petitioner remanded to custody.

MOYER, C.J., and SWEENEY, HOLMES, DOUGLAS, WRIGHT, HERBERT R. BROWN and RESNICK, JJ., concur.

1 R.C. 2725.04 states:

"Application for the writ of habeas corpus shall be by petition, signed and verified either by the party for whose relief it is intended, or by some person for him, and shall specify:

"(A) That the person in whose behalf the application is made is imprisoned, or restrained of his liberty;

"(B) The officer, or name of the person by whom the prisoner is so confined or restrained; or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation and the person who is served with the writ is deemed the person intended;

"(C) The place where the prisoner is so imprisoned or restrained, if known;

"(D) A copy of the commitment or cause of detention of such person shall be exhibited, if it can be procured without impairing the efficiency of the remedy; or, if the imprisonment or detention is without legal authority, such fact must appear."

2 R.C. 2725.06 states:

"When a petition for a writ of habeas corpus is presented, if it appears that the writ ought to issue, a court or judge authorized to grant the writ must grant it forthwith."

3 R.C....