Court of Appeals of Ohio, Seventh District, Mahoning
Hill, (PRO SE), for Relator
Yost, Ohio Attorney General, Atty. George Horvath, Assistant
Attorney General, and Timothy Bojanowski, Struck, Love,
Bojanowski & Acedo, P.L.C., for Respondents.
BEFORE: Gene Donofrio, Carol Ann Robb, David A.
OPINION AND JUDGMENT ENTRY
Petitioner Tyrice Hill, proceeding on his own behalf, has
filed what he has entitled a complaint for a writ of mandamus
against Respondents Christopher LaRose, Warden of the
Northeast Ohio Correctional Center, and the Ohio Department
of Rehabilitation and Correction. He is seeking to have this
Court compel them to bring to the attention of the sentencing
court inaccuracies in his commitment papers, which render
them without authority to hold him. Both Respondents have
filed Civ.R. 12(B)(6) motions to dismiss this original
Due to the insufficiency of Petitioner's complaint, the
salient facts giving rise to his conviction and sentence are
drawn from the Sixth District's decision in State v.
Hill, 6th Dist. Lucas No. L-05-1080, 2006-Ohio-859.
While on post release control for robbery in 2004, Petitioner
was indicted on six counts of first-degree-felony aggravated
robbery in violation of R.C. 2911.01(A)(1), each of which
contained a firearm specification. On February 3, 2005,
Petitioner was sentenced to seven of the ten potential years
on each of the convictions. Petitioner received an additional
three year term of incarceration mandated by the accompanying
gun specifications. All sentences were ordered to be served
Markedly, the trial court concluded the shortest prison term
would demean the seriousness of the offense, would not
adequately protect the public, would not reflect the
seriousness of the conduct, and Petitioner posed a danger to
the public. In conjunction with those findings, the court
emphasized that Petitioner committed his string of aggravated
robberies while on post release control following his
incarceration on a prior robbery conviction. "In light
of adverse statutory findings and a recidivist robbery
defendant, the court imposed a total of 30 years
incarceration upon [Petitioner]." Id. ¶
Petitioner appealed his convictions and sentences to the
Sixth District Court of Appeal and it affirmed. Id.
However, six months later, since Petitioner's appeal to
the Ohio Supreme Court was pending during its decision in
State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,
845 N.E.2d 470, the Court reversed Petitioner's sentence
and remanded his case to the trial court for resentencing
accordingly. In re Ohio Criminal Sentencing Statutes
Cases, 110 Ohio St.3d 156, 2006-Ohio-4086, 852 N.E.2d
156, ¶ 1, 5. The only insight we get into what resulted
from his resentencing appears in a decision issued five and
half years later by the Sixth District Court of Appeals
affirming the trial court's denial of Petitioner's
fifth motion to withdraw his guilty pleas, wherein the Court
noted that he had been sentenced to 28 years in prison.
State v. Hill, 6th Dist. Lucas No. L-10-1263,
2012-Ohio-1103, ¶ 2.
Following numerous, unsuccessful collateral attacks upon his
conviction and sentence, Petitioner has filed this original
action which, as indicated, he has entitled as a complaint
for a writ of mandamus. However, the relief he is expressly
seeking is immediate release from prison. Habeas corpus,
rather than mandamus, is the appropriate action for persons
claiming entitlement to immediate release from prison.
State ex rel. Lemmon v. Ohio Adult Parole Auth., 78
Ohio St.3d 186, 188, 677 N.E.2d 347 (1997); State ex rel.
Pirman v. Money, 69 Ohio St.3d 591, 594, 635 N.E.2d 26
(1994). As the Court noted in Lemmon, 78 Ohio St.3d
at 188, 677 N.E.2d 347, "[a] contrary holding would
permit inmates seeking immediate release from prison to
employ mandamus to circumvent the statutory pleading
requirements for instituting a habeas corpus action,
i.e., attachment of commitment papers and
verification." Therefore, we are construing
Petitioner's complaint, as amended, as a petition for a
writ of habeas corpus. R.C. 2725.04 ("[a]pplication for
the writ of habeas corpus shall be by petition * * *.")
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." The
writ of habeas corpus is an extraordinary writ and will only
be issued in certain circumstances of unlawful restraint of a
person's liberty where there is no adequate legal remedy
at law, such as a direct appeal or postconviction relief.
In re Pianowski, 7th Dist. Mahoning No. 03MA16,
2003-Ohio-3881, ¶ 3; see also State ex rel. Pirman
v. Money, 69 Ohio St.3d 591, 593, 635 N.E.2d 26 (1994).
"Absent a patent and unambiguous lack of jurisdiction, a
party challenging a court's jurisdiction has an adequate
remedy at law by appeal." Smith v. Bradshaw,
109 Ohio St.3d 50, 2006-Ohio-1829, 845 N.E.2d 516, ¶ 10.
If a person is in custody by virtue of a judgment of a court
of record and the court had jurisdiction to render the
judgment, the writ of habeas corpus will not be allowed.
Tucker v. Collins, 64 Ohio St.3d 77, 78, 591 N.E.2d
1241 (1992). The burden is on the petitioner to establish a
right to release. Halleck v. Koloski, 4 Ohio St.2d
76, 77, 212 N.E.2d 601 (1965); Yarbrough v. Maxwell,
174 Ohio St. 287, 288, 189 N.E.2d 136 (1963). "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,
816 N.E.2d 594, ¶ 6.
Respondents have each filed Civ.R. 12(B)(6) motions to
dismiss for failure to state a claim. A motion to dismiss for
failure to state a claim upon which relief can be granted is
procedural and tests the sufficiency of the complaint.
State ex rel. Hanson v. Guernsey Cty. Bd. of
Commrs., 65 Ohio St.3d 545, 605 N.E.2d 378 (1992).
R.C. 2725.04(D) requires the petitioner to file all the
pertinent commitment papers along with the petition.
Attaching only some of the paperwork is insufficient. If any
required commitment papers are not included with the
petition, it is defective and will be dismissed. State ex
rel. Johnson v. Ohio Dept. of Rehab. & Corr., ...