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Birdsall v. Miller

Court of Appeals of Ohio, Seventh District

June 28, 2013

DEAN BIRDSALL, PETITIONER,
v.
MICHELE MILLER, WARDEN, BELMONT CORRECTIONAL INSTITUTION, RESPONDENT.

Petitioner's Petition for Writ of Habeas Corpus; Respondent's Motion to Dismiss.

For Petitioner: Dean Birdsall, Pro Se. #A602-141 Belmont Correctional Institution.

For Respondent: Attorney Michael DeWine Attorney General Attorney Stephanie Watson Assistant Attorney General Criminal Justice Section.

JUDGES: Hon. Joseph J. Vukovich Hon. Cheryl L. Waite Hon. Mary DeGenaro.

OPINION AND JUDGMENT ENTRY

PER CURIAM:

¶{1} On May 9, 2013, Petitioner Dean Birdsall filed a petition for writ of habeas corpus with this court. On May 28, 2013, Respondent Michele Miller, Belmont Correctional Institution's Warden, filed a Motion to Dismiss.

¶{2} From the filings and the attachments thereto, it is apparent that in 1994, Petitioner was convicted of rape in violation of R.C. 2907.02, a first-degree felony. He received an indefinite term of 7 to 25 years. Medina County, Ohio, Common Pleas Court Case No. 92CR0367. Petitioner did not file a direct appeal from that conviction and sentence. According to Petitioner, in December 2007, he was released on parole after serving approximately 13 years.

¶{3} In 2010, while on parole, Petitioner was charged in Richland County, Ohio, with one count of Failure to Register as a Sexually Oriented Offender, a first-degree felony, and one count of Escape, a second-degree felony. A plea agreement was reached in April 2011. Petitioner pled no contest to the escape charge. As part of the agreement, the failure to register charge was dismissed and the parties agreed to jointly recommend a six year sentence for the escape conviction and that the sentence is to run concurrent to the 7 to 25 year sentence for the rape conviction in Medina County Case No. 92CR0367. 04/21/11 J.E.; 04/12/12 J.E. The trial court found Petitioner guilty and followed the jointly agreed sentence recommendation. 04/21/11 J.E. Petitioner did not file a timely direct appeal from this conviction. However, he did file a delayed appeal. 07/09/12 Motion; 08/06/12 Amended Motion for Leave to File Delayed Appeal. The Fifth Appellate District denied the motion. 08/22/12 J.E

¶{4} Petitioner did not timely appeal that decision. Rather, he filed a motion for a delayed appeal in the Ohio Supreme Court. 12/21/12 Motion Ohio Supreme Court Case No. 2012-2144. The Ohio Supreme Court denied the motion. State v. Birdsall, ___ Ohio St.3d ___, 2013-Ohio-347, 982 N.E.2d 726.

¶{5} This brings us to the writ of habeas corpus that was filed with this court. There are two discernible arguments set forth in the writ. The first argument is that Petitioner's conduct did not constitute escape as espoused in R.C. 2921.34(A)(1). Specifically, it seems that he is arguing that in order to be guilty under that provision he had to be on postrelease control at the time of the escape. He contends that his 1994 sentence for rape did not include a postrelease control sentence and therefore that element of escape cannot be met. His second discernible argument is that the act of escape was used to punish him for violating his parole and was also used to convict him. Thus, he contends he was punished twice for the same conduct and this violated the double jeopardy clauses of the United States Constitution and the Ohio Constitution.

¶{6} The habeas corpus statute, R.C. 2725.01, provides: "Whoever is unlawfully restrained of his liberty, or entitled to the custody of another, of which custody such person is unlawfully deprived, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment, restraint, or deprivation." The writ of habeas corpus is an extraordinary writ and will only be issued in certain circumstances of unlawful restraint of a person's liberty where there is no adequate legal remedy at law. In re Pianowski, 7th Dist. No. 03MA16, 2003-Ohio-3881, ¶ 3; see also State ex rel. Pirman v. Money, 69 Ohio St.3d 591, 593, 635 N.E.2d 26 (1994). "Thus, if the defendant has or had an adequate remedy in the ordinary course of the law such as an appeal, delayed appeal, petition for post-conviction relief, motion for relief from a civil judgment, or motion to withdraw a guilty plea, then habeas is inappropriate." (Emphasis sic.) Mosley v. Eberlin, 7th No. 08 BE 7, 2008-Ohio-6593, ¶ 27.

¶{7} Both of Petitioner's arguments could have been addressed in a direct appeal or a delayed appeal. Furthermore, the first argument concerning the elements of escape could also have been raised in a post-sentence motion to withdraw his no contest plea to argue that his plea was not entered into knowingly, intelligently and/or voluntarily. Thus, Petitioner has or had an adequate remedy at law. For that reason alone, the writ fails.

¶{8} However, even if we do consider the arguments they are meritless. Regarding his first argument that the state could not prove the elements of escape, R.C. 2921.34(A)(1) provides that no person, knowing the person is under detention shall purposely break the detention or purposely fail to return to detention. (Statute in effect in 2010). Petitioner admitted in the writ that he was on parole when the alleged escape occurred. The Ohio Supreme Court has explained that parole constitutes detention within the meaning of the statute and a parolee's failure to report constitutes escape under R.C. 2921.34. State v. Thompson, 102 Ohio St.3d 287, 809 N.E.2d 1134, 2004-Ohio-2946 (the amendments to R.C. 2921.34 in 1996 and 2967.15(C)(2) in 1988 make it clear that after 1998 parolees who fail to report can be charged with escape regardless of when the underlying crime was committed; General Assembly intends to include a parolee's failure to report within the definition of escape). See also R.C. 2921.34(D) (current version). Thus, the elements of escape under R.C. 2921.34(A)(1) could be met.

¶{9} Petitioner's second argument concerns being convicted and sentenced for escape and using that same conduct to punish him for violating parole. He asserts that that action amounts to a double punishment for the same conduct and constitutes a violation of the double jeopardy clause. The Ohio Supreme Court's decision ...


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