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Powers v. Timmerman-Cooper

Court of Appeals of Ohio, Twelfth District

July 1, 2013

SCOTT POWERS, Petitioner-Appellant,
v.
DEB TIMMERMAN-COOPER, WARDEN, Respondent-Appellee.

CIVIL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS Case No. CVH20120322

Scott Powers, #A498264, petitioner-appellant, pro se

Gregory T. Hartke, Assistant Attorney General, for respondent-appellee

OPINION

S. POWELL, J.

{¶ 1} Petitioner-appellant, Scott Powers, appeals pro se from the Madison County Court of Common Pleas decision dismissing his petition for a writ of habeas corpus requesting his immediate release from prison. For the reasons outlined below, we affirm.

{¶ 2} Powers, who has a lengthy criminal history, is currently incarcerated at the London Correctional Institution located in Madison County, Ohio. As relevant here, in 1982 Powers was sentenced by the Knox County Court of Common Pleas to serve a maximum of 25 years in prison after a jury found him guilty of one count of aggravated robbery. As a result of his conviction, Powers had a maximum release date of March 8, 2007. Powers' conviction and sentence were subsequently affirmed on appeal. See State v. Powers, 5th Dist. No. 82-CA-20, 1983 WL 5471 (Mar. 4, 1983).

{¶ 3} While the matter before the Knox County Common Pleas Court was still pending, Powers was indicted and ultimately pled guilty in the Franklin County Court of Common Pleas to two additional counts of aggravated robbery. As a result of his guilty plea, Powers' maximum release date was extended to March 12, 2007. Powers was then assessed an additional 6 months and 5 days due to "lost time" allegedly resulting from his original aggravated robbery sentence. With the addition of this "lost time, " Powers' maximum release date was further extended to September 17, 2007. Powers was subsequently released from prison and placed on parole.

{¶ 4} In 1991, while on parole, Powers was indicted and pled guilty in the Franklin County Court of Common Pleas to two counts of burglary. As a result of his guilty plea, Powers was sentenced to serve a maximum of 15 years in prison. The Franklin County Court of Common Pleas' sentencing entry, however, was silent as to whether Powers' sentence was to be served consecutively to any parole revocation time. After serving some time in prison, Powers was again released and placed on parole.

{¶ 5} In 1999, while still on parole, the Franklin County Court of Common Pleas sentenced Powers to an additional 17 months in prison after a jury found him guilty of burglary, theft, and receiving stolen property. As part of this additional sentence, Powers was ordered to serve this term consecutive to "any parole revocation time." Powers' conviction and sentence were again affirmed on appeal. See State v. Powers, 10th Dist. No. 00AP-815, 2001 WL 69333 (Jan. 30, 2001). However, although twice demonstrating his inability to avoid further criminal convictions while on parole, Powers was once again released from prison and placed on parole.

{¶ 6} In 2005, while once again on parole, the Franklin County Court of Common Pleas sentenced Powers to serve, albeit concurrently, an additional seven-year prison term after a jury found him guilty of burglary and possession of criminal tools. His conviction and sentence for these offenses were also affirmed on appeal. See State v. Powers, 10th Dist. No. 05AP-780, 2006-Ohio-4458.

{¶ 7} On November 2, 2012, Powers filed a petition with the Madison County Court of Common Pleas requesting a writ of habeas corpus for his immediate release from prison. According to Powers, he is being held unlawfully in that his maximum sentence had expired on January 18, 2012. Respondent-appellee, Deb Timmerman-Cooper, Warden of the London Correctional Institution, filed a motion to dismiss Powers' petition under Civ.R. 12(B)(6). The trial court granted the motion to dismiss finding Powers' maximum sentence does not expire until May 6, 2023, as his 15-year sentence received following his 1991 burglary convictions must be served consecutively to any parole revocation time as required by former R.C. 2929.41(B)(3). Powers now appeals from that decision, raising a single assignment of error for review.

{¶ 8} THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING RELIEF ON THE BASIS OF HOLDING THAT OHIO REVISED CODE §2929.41(B)(3) IS SELF-EXECUTING, WHICH DENIED APPELLANT DUE PROCESS OF LAW.

{¶ 9} In his sole assignment of error, Powers argues the trial court erred in dismissing his petition for a writ of habeas corpus requesting his immediate release from prison. According to Powers, the trial court incorrectly determined that his maximum release date as May 6, 2023 by finding former R.C. 2929.41(B)(3) was self-executing as a matter of law, thereby automatically imposing his prison term to be served consecutively to any parole revocation time.[1] We find such argument lacks merit.

{¶ 10} "A writ of habeas corpus is an extraordinary remedy available where there is an unlawful restraint of a person's liberty and no adequate remedy at law." Maxwell v. Jones, 12th Dist. No. CA2009-07-179, 2010-Ohio-1633, ¶ 7, citing Agee v. Russell, 92 Ohio St.3d 540, 544 (2001). Habeas corpus is generally appropriate in the criminal context only if the petitioner is ...


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