Court of Appeals of Ohio, Seventh District, Noble
SAMUEL E. BEAR, Petitioner,
TIM BUCHANAN, Warden/Respondent.
Bear, Pro Se, for Petitioner
Stephanie Watson, Criminal Justice Section, for Respondent.
BEFORE: Gene Donofrio, Cheryl L. Waite, Carol Ann Robb,
OPINION AND JUDGMENT ENTRY
Petitioner Samuel E. Bear is a prisoner at the Noble
Correctional Institution and, proceeding on his own behalf,
has filed a petition for a writ of habeas corpus. Petitioner
is currently in the custody of Respondent Tim Buchanan,
warden of the prison. Respondent has filed a motion to
In 2016, Petitioner sent an unsolicited letter to the mother
of two young children revealing that he had engaged in oral
sex with the children, who would have been 2 and 5 years old
at the time of the assault. The mother contacted law
enforcement authorities and Petitioner confessed to them as
well, indicating that he was 18 or 19 years old at the time
of the offenses. Following the issuance of a Bill of
Information and a negotiated Crim.R. 11 plea agreement,
Petitioner pleaded guilty to two counts of
first-degree-felony rape in violation of R.C. 2907.02(A)(2).
The parties reached an agreed upon sentence recommendation of
two 8-year terms of imprisonment to be served concurrently.
The trial court sentenced Petitioner accordingly and he has
not yet pursued a direct appeal of his conviction and
Petitioner then filed the petition which is the subject of
this original action.
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."
Respondent has filed a Civ.R. 12(B)(6) motion to dismiss for
failure to state a claim in this matter. The purpose of such
a motion is to test the sufficiency of the complaint.
State el rel. Boggs v. Springfield Local School Dist. Bd.
of Ed., 72 Ohio St.3d 94, 95, 647 N.E.2d 788 (1995). In
order for a case to be dismissed for failure to state a
claim, it must appear beyond doubt that, even assuming all
factual allegations in the complaint are true, the nonmoving
party can prove no set of facts that would entitle that party
to the relief requested. State ex rel. Pirman, 69
Ohio St .3d at 593; Keith v. Bobby, 117 Ohio St.3d
470, 2008-Ohio-1443, 884 N.E.2d 1067, ¶ 10. If the
petition does not meet the requirements of a properly filed
petition for writ of habeas corpus, or fails to state a
facially viable claim, it may be dismissed on motion by the
respondent or sua sponte by the court. Flora v.
State, 7th Dist. No. 04 BE 51, 2005-Ohio-2383, ¶ 5.
Petitioner argues that his incarceration is unlawful because
he was a minor at the time of the offenses and never appeared
before the juvenile court for bindover proceedings.
R.C. 2152.12, which governs transfers of case from juvenile
court provides as follows:
If a person under eighteen years of age allegedly commits an
act that would be a felony if committed by an adult and if
the person is not taken into custody or apprehended for that
act until after the person attains twenty-one years of age,
the juvenile court does not have jurisdiction to hear or
determine any portion of the case charging the person with
committing that act. In those circumstances, divisions (A)
and (B) of this section do not apply regarding the act, and
the case charging the person with committing the act shall be
a criminal prosecution commenced and heard in the appropriate
court having jurisdiction of the offense as if the person had
been eighteen years of age or older when the person committed
the act. All proceedings pertaining to the act ...