Court of Appeals of Ohio, Fifth District, Richland
DAMIEN L. PETERSON Petitioner
DAVID MARQUIS, WARDEN Respondent
Petitioner DAMIEN L. PETERSON
Respondent WILLIAM H. LAMB Assistant Attorney General
JUDGES: Hon. W. Scott Gwin, P.J. Hon. Patricia A. Delaney, J.
Craig R. Baldwin, J.
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.
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.
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.
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
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.
"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
'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.
"[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.
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 ...