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Peterson v. Marquis

Court of Appeals of Ohio, Fifth District, Richland

February 7, 2018

DAMIEN L. PETERSON Petitioner
v.
DAVID MARQUIS, WARDEN Respondent

         Writ of Habeas Corpus

          For Petitioner DAMIEN L. PETERSON

          For Respondent WILLIAM H. LAMB Assistant Attorney General

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. Patricia A. Delaney, J. Craig R. Baldwin, J.

          OPINION

          Gwin, P.J.

         {¶1} Petitioner, Damien Peterson, has filed a Petition for Writ of Habeas Corpus arguing he should be immediately released from prison. Respondent has filed a motion to dismiss for failure to state a claim upon which relief may be granted.

         {¶2} Petitioner was convicted of aggravated robbery, felonious assault, weapons under disability, firearm specifications, and repeat violent offender specifications. He was sentenced to 12 years in prison.

         {¶3} Petitioner applied for and was granted judicial release. The State filed a notice of appeal of the trial court's entry granting judicial release. While the appeal was pending, Petitioner was charged with violating the terms of his judicial release. On March 26, 2015, the Eighth District Court of Appeals found the trial court did not make necessary statutory findings before granting judicial release and reversed the trial court. On May 6, 2015, the trial court, revoked Petitioner's judicial release and returned Petitioner to prison. Apparently, the trial court, was unaware of the appellate court's ruling.

         {¶4} Petitioner complains that he is imprisoned pursuant to a violation of the terms of his judicial release. He argues because the judicial release was found to have been improperly granted, he cannot be found to have violated judicial release.

         {¶5} Petitioner is not being held on revocation of judicial release. Once the court of appeals reversed the trial court's entry granting judicial release, Petitioner's original sentence was all that remained. The trial court's entry finding the terms of judicial release had been violated and sentencing Petitioner is moot. Therefore, Petitioner is being held on his original sentence.

         {¶6} "A writ of habeas corpus can only be granted if the petitioner can establish one of two circumstances, i.e., (1) that the sentencing court in his underlying criminal proceeding lacked jurisdiction to convict him, or (2) that he is still being held in prison, although he has already served his entire sentence. State ex rel. Vinson v. Gansheimer, 11th Dist. Ashtabula No. 2007-A-0042, 2007-Ohio-5205, ¶ 6

         {¶7} 'Like other extraordinary-writ actions, habeas corpus is not available when there is an adequate remedy in the ordinary course of law.' In re Complaint for Writ of Habeas Corpus for Goeller, 103 Ohio St.3d 427, 2004-Ohio-5579, ¶ 6." State ex rel. Menton v. Sloan, 11th Dist. Ashtabula No. 2017-A-0021, 2017-Ohio-7661, ¶ 7.

         {¶8} "[H]abeas corpus relief generally is appropriate only when 'the petitioner's maximum sentence has expired and he is being held unlawfully.' Heddleston v. Mack, 84 Ohio St.3d 213, 214, 702 N.E.2d 1198 (1998)." State ex rel. Marsh v. Tibbals, 149 Ohio St.3d 656, 2017-Ohio-829, 77 N.E.3d 909, ¶ 12.

         {¶9} Petitioner argues the appellate court's reversal put him back in the position he was prior to the entry granting judicial release. Petitioner relies on the following: "The effect of reversing a case is to reinstate the case back in precisely the same condition it was in before the alleged violation was said to have occurred. In re G.N., 12th Dist. No. CA2007-12-119, 2008-Ohio-1796, ¶ 11, 176 Ohio App.3d 236, 891 N.E.2d 816, citing Wilson v. Kreusch ...


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