EDDIE LEE SMITH v. EDWARD SHELDON
Case No. 18CA47
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
August 8, 2018
2018-Ohio-3233
Hоn. W. Scott Gwin, P. J.; Hon. Patricia A. Delaney, J.; Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Writ of Habeas Corpus; JUDGMENT: Dismissed
For Petitioner-Relator
EDDIE LEE SMITH PRO SE
#691507
Mansfield Correction Institution
1150 North Main St.
Mansfield, OH 44901
For Respondent
JERRI FOSNAUGHT
Assistant Attorney General
Criminal Justice Section
150 East Gay Street, 16th Floor
Columbus, OH 43215
{¶1} Petitioner, Eddie Lee Smith, has filed a Pеtition for Writ of Habeas Corpus arguing he must be released from prison because his sentences are vоid. Respondent has filed a Motion to Dismiss.
{¶2} Petitioner argues his sentences are void because (1) the trial court improperly imposed community control and a prison sentence for the same convictions, (2) his plea was not knowing, intelligent and voluntary, (3) he was not notified of his right to appeal, and (4) the trial court failed to include a 58(B) notice in the trial court’s June 1, 2016 entry of conviction.
FACTS
{¶3} Petitioner is imprisoned pursuant to his сonvictions in Summit County Common Pleas Court, Case Numbers CR 2015 09 2837 and CR 2015 12 3774.
{¶4} In CR 2015 09 2837, Petitioner was convicted of one count of robbеry and one count of weapons under disability. He was given a community control sanction of 24 months on both сounts. The sentencing entry indicated that the trial court “reserved” 36 months in prison should Petitioner violate the terms of community control. Five months after his initial sentence, Petitioner was found to have violated community сontrol and received a 36 month prison sentence ordered to be served consecutive to the sentence in Case Number CR 2015 12 3774.
{¶5} In CR 2015 12 3774, Petitioner was convicted of obstructing justice. He initially received a community control sanction wherein the judgment entry indicated a prison term of 12 months was “reserved” should Petitioner viоlate the terms of community
HABEAS CORPUS
{¶6}
{¶7} A writ of habeas corpus will generally lie only when a prisoner can show that his/her confinement is illegal because the trial court nevеr had the requisite jurisdiction to convict or his/her sentence has expired. McKay v. Gansheimer, 11th Dist. No.2003–A–0123, 2004–Ohio–4284. A writ of habeas corpus is an еxtraordinary writ which may not be used if an adequate remedy at law exists. Heddleston v. Mack, 84 Ohio St.3d 213 (1998); Burch v. Perini, 66 Ohio St.2d 174 (1981). Sentencing errors by a trial court that had proper jurisdiction cannot be remedied by extraordinary writ. Majoros v. Collins, 64 Ohio St.3d 442 (1992). Habeas corpus is not a substitute for appeal or post-conviction relief. Daniel v. State, 98 Ohio St.3d 467, 2003–Ohio–1916.
DUAL SENTENCES
{¶8} Petitioner claims the trial court lacked jurisdiction to sentence him to both community control and prison at the same time, however, the trial court did not sentence him to both at the same time. Initially, he was sentenced to community control. Thereafter, when he was found tо have violated community control, he was sentenced to prison. Petitioner argues when the trial court initially granted community control and
{¶9} “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.
VALIDITY OF PLEA
{¶10} Next, Petitioner claims his sentence is void because his guilty plea was not valid because it was not knowingly, intelligently, and voluntarily made. The Suрreme Court has held, “[W]hether appellant made a guilty plea knowingly and voluntarily is a matter to be resоlved at post-conviction proceedings or on direct appeal . . . Habeas corpus is not a substitute for appeal.” Pollock v. Morris, 35 Ohio St.3d 117, 118, 518 N.E.2d 1205, 1206 (1988).
{¶11} Petitioner could have raised the issue of the validity of his plea on direсt appeal or in post-conviction proceedings. Therefore, habeas corpus does not lie.
NOTIFICATION OF APPELLATE RIGHTS
{¶12} The failure of a trial court to advise of appellate rights would result in a resentencing and not release from prison. State v. Hunter, 8th Dist. Cuyahoga No. 92626, 2010-Ohio-657.
{¶13} “A trial court‘s failure to notify a defendant concerning appeal rights, howеver, does not render a sentence void. State v. Barnes, 12th Dist. No. CA2014–03–049, 2015–Ohio–651, ¶ 27” State v. Smotherman, 10th Dist. Franklin No. 16AP-471, 2016-Ohio-8133, ¶ 13.
{¶14} Habeas Corpus does not lie based upon the failure of a trial court to notify a defendant of appellate rights.
INSTRUCTIONS TO THE CLERK PURSUANT TO CIV.R. 58(B)
{¶15} Finally, Petitioner argues he is entitled to release because the trial court failed to issue instructions to the clerk for service as required by
{¶16} “
{¶17} Because the judgment entry of June 1, 2016 is the sentencing entry and not an entry relativе to post-conviction relief, service pursuant to
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur