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State ex rel. Hill v. LaRose

Court of Appeals of Ohio, Seventh District, Mahoning

December 31, 2019

STATE EX REL., TYRICE HILL, Petitioner,
v.
CHRISTOPHER LAROSE, WARDEN ET AL., Respondents.

         Writ of Habeas Corpus

          Tyrice Hill, (PRO SE), for Relator

          Dave 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. D'Apolito, Judges.

          OPINION AND JUDGMENT ENTRY

          PER CURIAM.

         {¶1} 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 action.

         {¶2} 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 consecutively.

         {¶3} 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. ¶ 10.

         {¶4} 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.

         {¶5} 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 * * *.")

         {¶6} 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.

         {¶7} 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.

         {¶8} 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).

         {¶9} 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., ...


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