Court of Appeals of Ohio, Eleventh District, Trumbull
Original Action for Writ of Habeas Corpus.
Rock, pro se, (Petitioner).
DeWine, Ohio Attorney General, and Stephanie L Watson,
Assistant Attorney General (For Respondent).
This habeas corpus action is presently before this court for
consideration of the Civ.R. 12(B)(6) motion to dismiss filed
by respondent, Charmaine Bracy, Warden at the Trumbull
Correctional Institution. Petitioner, David Rock, filed a
reply to the motion to dismiss.
In 2015, petitioner pled guilty to one count of operating a
vehicle under the influence ("OVI"), a third-degree
felony in violation of R.C. 4511.19(A)(1)(a), and an
accompanying R.C. 2941.1413 specification. The trial court
entered its judgment of conviction on March 30, 2015.
Petitioner was sentenced to serve a prison term of thirty-six
months for the underlying OVI and four years for the
repeat-offender specification, to run consecutive to each
other and consecutive to the sentence imposed by the Ashland
County Court of Common Pleas in case No. 10-CRI-081.
Appellant challenged his sentence on appeal from that
judgment. We held the trial court failed to make the required
findings pursuant to R.C. 2929.14(C)(4) in order to run
appellant's sentences for the OVI and specification
consecutive to his Ashland County sentence. State v.
Rock, 11th Dist. Lake No. 2015-L-047, 2015-Ohio-4639.
On remand, the trial court declined to make the required
findings for imposing consecutive sentences. The trial court
ordered appellant's sentence for the OVI and
specification be served concurrently with the sentence
imposed by the Ashland County Court of Common Pleas.
State v. Rock, 11th Dist. Lake No. 2016-L-011,
Petitioner filed his pro se petition for a writ of habeas
corpus on May 4, 2018. The petition consists of a list of
"injustices" and a "complaint
memorandum." As his main ground for relief, petitioner
argues, "it is clear that Lake County Court of Common
Pleas through its grand jury was without jurisdiction to
indict petitioner with an OVI enhancement, and an attached
specification charge under §2941.1413, due to the
'ACTUAL NOTICE' provided to the court in
2011[.]" Petitioner maintains his OVI convictions from
1995 and 1997 that were used to enhance his current OVI
conviction to a felony were "constitutionally
infirm" because he entered uncounseled pleas of "no
contest" in those cases without a valid waiver of his
right to counsel. He argues, therefore, that the indictment
for his current conviction charged him with the "wrong
crime" and is invalid. He maintains the trial court was
notified in 2011 about the infirm convictions. Appellant
further argues he should have been charged with a
misdemeanor, and the trial court did not have jurisdiction to
sentence him for the incorrect crime.
In her Civ.R. 12(B)(6) motion, respondent argues the petition
should be dismissed because petitioner had adequate
alternative remedies at law to adjudicate his claims and
because his prison sentence has yet to expire.
"A motion to dismiss for failure to state a claim upon
which relief can be granted tests the sufficiency of the
complaint." Volbers-Klarich v. Middletown Mgt,
Inc., 125 Ohio St.3d 494, 2010-Ohio-2057, ¶11,
citing Assn. for the Defense of the Washington Local
School Dist. v. Kiger, 42 Ohio St.3d 116, 117 (1989). In
construing the complaint, a court must presume all factual
allegations of the complaint are true and make all reasonable
inferences in favor of the non-moving party. Mitchell v.
Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988)
(citations omitted). In order for the complaint to be
dismissed, it must appear "beyond doubt" from the
complaint that the petitioner can prove no set of facts
entitling him to the relief sought. Ohio Bur. of
Workers' Comp. v. McKinley, 130 Ohio St.3d 156,
2011-Ohio-4432, ¶12 (citations omitted). The court
cannot consider evidence or allegations outside the complaint
in ruling on a motion to dismiss pursuant to Civ.R. 12(B)(6).
Jefferson v. Bunting, 140 Ohio St.3d 62,
2014-Ohio-3074, ¶11 (citation omitted).
"A writ of habeas corpus is the proper remedy for a
state prisoner to pursue when he believes his present
incarceration is not lawful." State ex rel. Menton
v. Sloan, 11th Dist. Ashtabula No. 2017-A-0021,
2017-Ohio-7661, ¶7, citing State ex rel. Nelson v.
Griffin, 103 Ohio St.3d 167, 2004-Ohio-4754, ¶5.
"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." Id., citing State ex
rel. Vinson v. Gansheimer, 11th Dist. Ashtabula No.
2007-A-0042, 2007-Ohio-5205, ¶6. "[H]abeas corpus
relief may be granted for nonjurisdictional claims, if the
petitioner has no adequate remedy at law." Thomas v.
Collins, 74 Ohio St.3d 413, 413-414 (1996), citing
State ex rel. Pirman v. Money, 69 Ohio St.3d 591,
Petitioner's ground for relief attacks the validity of
his indictment. The Ohio Supreme Court has held, however,
that habeas corpus is not available to challenge the validity
of a charging instrument because arguments relating to the
validity or sufficiency of the instrument can be raised on
direct appeal or through postconviction relief. Luna v.
Russell, 70 Ohio St.3d 561, 562 (1994); Shroyer v.
Banks, 123 Ohio St.3d 88, 2009-Ohio-4080, ¶1
(citation omitted). Here, appellant filed a direct appeal
from the judgment of conviction. Further, in his
"complaint memorandum," petitioner indicates he has
raised the argument relating to his indictment in previous
actions, and explains that he "has exhausted
all state remedies without a hearing, affirming his
conviction on solely procedural grounds."
(Emphasis sic.) Because appellant had an adequate remedy at
law, he can prove no set of facts entitling him to relief.
Respondent's motion to dismiss pursuant to Civ.R.
12(B)(6) is hereby granted. The petition for a writ ...