Miner v. Eberlin, 2009 Ohio 934 (Ohio App. 2/26/2009)
| Decision Date | 26 February 2009 |
| Docket Number | No. 08-BE-21.,08-BE-21. |
| Citation | 2009 Ohio 934 |
| Parties | Aaron N. Miner, Plaintiff-Appellant, v. Michele Eberlin, Warden, Defendant-Appellee. |
| Court | Ohio Court of Appeals |
Aaron N. Miner, pro-se, #503-212, 68518 Bannock Rd., State Rout 331, P.O. Box 540, St. Clairsville, Ohio 43950-0540, for Plaintiff-Appellant.
Attorney M. Scott Criss, Assistant Attorney General, Ohio Attorney Generals Office, Corrections Litigation Section, 150 East Gay St., 16th Floor, Columbus, Ohio 43215-6001, for Defendant-Appellee.
Before: Hon. Gene Donofrio, Hon. Cheryl L. Waite, Hon. Mary DeGenaro.
{¶1} Petitioner-appellant, Aaron Miner, appeals from a Belmont County Common Pleas Court judgment denying his habeas corpus petition.
{¶2} On April 12, 2006, appellant pleaded guilty to and was convicted of two counts of felony domestic violence in the Stark County Common Pleas Court. The court sentenced him to two, four year prison terms to be served concurrently.
{¶3} On February 22, 2007, the Stark County Court granted appellant judicial release. It suspended the balance of appellant's sentence and placed him on community control for three years, subject to numerous conditions.
{¶4} On September 25, 2007, appellant's probation officer filed a motion to revoke appellant's probation. The motion alleged that appellant tested positive for cocaine on July 30, and August 1, 2007, and positive for alcohol on September 21, 2007, all in violation of his probation conditions.
{¶5} On October 10, 2007, the Stark County Court revoked appellant's judicial release and re-imposed his sentence. It stated that appellant stipulated to violating the terms of his release.
{¶6} On March 17, 2008, appellant filed a petition for a writ of habeas corpus in the Belmont County Common Pleas Court against respondent-appellee, Michelle Eberlin, Warden, Belmont Correctional Institute, asserting that he was being illegally detained. He alleged that he had completed all of his required judicial release/community control and was not under any type of supervised release but that he was nonetheless subjected to a drug/alcohol test, his release was violated, and he was sent to prison.
{¶7} Appellee filed a motion to dismiss arguing that appellant was not entitled to release because his maximum prison term had not expired and his petition was procedurally defective because he failed to attach his commitment papers.
{¶8} Because neither party requested a hearing, the court took the matter under advisement. It subsequently denied appellant's petition. The court based its decision on two separate grounds. First, it determined that appellant could have raised his claim that he was not on supervised release at the time he was violated and sent to prison in a direct appeal. Thus, it stated that habeas relief was not proper. Second, it found that although appellant attached a copy of the order granting judicial release to his petition, he did not attach a copy of his commitment papers. Therefore, it concluded that the petition must be dismissed.
{¶9} Appellant filed a timely notice of appeal on July 21, 2008.
{¶10} Appellant, acting pro se, fails to set out assignments of error or a statement of the issues as is required by App.R. 17(A)(3) and (4). Instead, he goes to great lengths to talk about drug/alcohol tests, his probation officer, and missing transcripts.
{¶11} Even though appellant is proceeding pro se, he is bound by the same rules and procedures as litigants who retain counsel. Jancuk v. Jancuk (Nov. 24, 1997), 7th Dist. No. 94 CA 221, citing Meyers v. First Natl. Bank of Cincinnati (1981), 3 Ohio App.3d 209, 210, 444 N.E.2d 412; Dawson v. Pauline Homes, Inc. (1958), 107 Ohio App. 90, 154 N.E.2d 164. In the interest of justice, however, we will examine the merits of appellant's argument.
{¶12} Appellant argues that he was provided ineffective assistance of counsel. He claims that his appointed counsel "had full knowledge that the trial court did not have the requisite subject matter jurisdiction to effect a sentence based strictly upon the fact that Mr. Miner was not on any supervised release program." Appellant further argues here that he was not on any type of judicial release or community control yet, somehow, the court found that he violated the terms of his community control.
{¶13} We review a trial court's decision to deny a writ of habeas corpus for abuse of discretion. Thorpe v. Kerns, 3d Dist. No. 1-08-31, 2008-Ohio-6578, at ¶9. Abuse of discretion connotes more than an error of law or judgment; it implies that the trial court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶14} The trial court gave two separate reasons for denying appellant's petition: (1) appellant's allegations could have been raised in a direct appeal; and (2) the petition was procedurally defective for failure to attach the commitment papers. Either one of these reasons alone was sufficient to deny appellant's petition.
{¶15} Habeas corpus is an extraordinary remedy that is available only when there is no adequate remedy at law, such as a direct appeal or postconviction relief. State ex rel. Harris v. Anderson (1996), 76 Ohio St.3d 193, 194, 667 N.E.2d 1. Habeas is not a substitute for a direct appeal. Daniel v. State, 98 Ohio St.3d 467, 2003-Ohio-1916, at ¶8.
{¶16} In his petition, appellant argued that the trial court should not have sent him to prison because he alleged that he was no longer on community control at the time he violated the conditions. This issue should have been raised in a direct appeal from the judgment finding that appellant violated his community control conditions and re-imposing his sentence. When the petitioner could have pursued a direct appeal, habeas corpus will not lie as a remedy. Luna v. Russell (1994), 70 Ohio St.3d 561, 639 N.E.2d 1168. Thus, the trial court acted within its discretion in denying appellant's petition on this basis.
{¶17} Additionally, appellant now argues on appeal that his trial counsel was ineffective for not calling to the court's attention the alleged fact that he was no longer on community control when he tested positive for drugs and alcohol. A claim of ineffective assistance of counsel is one properly raised in a direct appeal and is not cognizable in habeas corpus. Wooton v. Brunsman, 112 Ohio St.3d 153, 2006-Ohio-6524, at ¶7.
{¶18} Furthermore, as the trial court also found, appellant's petition was defective.
{¶19} R.C. 2725.04(D) provides: "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."
{¶20} To his petition, appellant attached a copy of the judgment entry granting him judicial release. However, he did not attach a copy of the judgment entry reimposing his prison sentence.
{¶21} (Emphasis...
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