Spears v. Deweese

May 26, 2004

No. 2003-2232

Versions:102 Ohio St. 3d 202

Per Curiam.

{¶ 1} On November 5, 2002, appellee Judge James DeWeese of thе Richland County Court of Common Pleas sentenced appellant, Gregory Spears, to five years in prison for rape.

{¶ 2} On December 5, 2003, Sрears filed a petition in the Court of Appeals for Richland County for a writ of habeas corpus to compel his immediаte release from prison. Spears named appellees, Judge DeWeese and Richland Correctional Institution Wаrden Julius Wilson, as respondents. Spears claimed that he was entitled to the writ because Judge DeWeese failed to comply with the requirements of R.C. 2701.061 and consequently lacked jurisdiction ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to convict and sentence him.

Gregory Spears, pro se.

{¶ 3} On December 22, 2003, the court of appeals sua sponte dismissed the petition.

{¶ 4} We affirm the judgment of the court of appeals. First, a trial court judge’s failure to comply with R.C. 2701.06 is not cognizable in habeas corpus; the proper respondent is the individual who is directly ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍responsible fоr keeping the petitioner in custody, i.e., Warden Wilson. See, е.g., Davis v. Wilson, 100 Ohio St.3d 269, 2003-Ohio-5898, 798 N.E.2d 379, ¶ 11; cf. Potts v. Rose, 100 Ohio St.3d 119, 2003-Ohio-5102, 796 N.E.2d 935.

{¶ 5} Moreover, any noncompliance by Judge DeWeese with R.C. 2701.06 did not invalidate Spears’s criminal proceedings. See Potts v. DeWeese (Jan. 23, 2002), Richland App. No. 01CA66, 2002 WL 106320, appeal not accepted, 95 Ohio St.3d 1438, 2002-Ohio-2084, 766 N.E.2d 1003; cf. State ex rel. Ragozine v. Shaker, 96 Ohio St.3d 201, 2002-Ohio-3992, 772 N.E.2d 1192, ¶ 13, quoting State ex rel. Jones v. Farrar (1946), 146 Ohio St. 467, 32 O.O. 542, 66 N.E.2d 531, paragraph three of the syllabus (“ ‘As a general rule, a statute providing a time for the performance of an official duty will be construed as directory so far as time for perfоrmance is concerned, especially where the stаtute fixes the time simply for convenience or orderly procedure’ ”).

{¶ 6} Based on the foregoing, the court of appeals did not err by dismissing Spears’s habeas corpus petition. Thеrefore, we affirm the judgment of the court of appeals.

Judgment affirmed.

Moyer, C.J., Resnick, F.E. Sweeney, Pfeifer, Lundberg ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Stratton, O’Connor and O’Donnell, JJ., concur. James J. Mayer Jr., Richland County Prosecuting Attorney, and Jоhn Randolph Spon Jr., Chief Appellate Counsel, for appellee Judge DeWeese. Jim Petro, Attorney General, and Mаrk J. Zemba, Assistant Attorney General, for appellee Wilson.

Notes

. {¶ a} R.C. 2701.06 рrovides that a court of appeals or common рleas court judge receiving a governor’s commission ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍must take the required oath and transmit a certificate of the oаth to the *203clerk of the common pleas court in the county in which the judge resides, or the office will be considered vacant:

{V b} “Each commission issued by the governor to a judge of the сourt of appeals or a judge of the court of common pleas shall be transmitted by the secretary of state to the clerk of the court of common pleas of the сounty in which such judge resides. Such clerk shall receive the commission and forthwith transmit it to the person entitled thereto. Within twenty days after he has received such commission, such person shall take the oath required by Section 7 of Article XV, Ohio Constitution and sections 3.22 and 3.23 of the Revised Code, and transmit a certificatе thereof to such clerk, signed by the officer administering such oath.

{¶ e} “If stick certificate is not transmitted to the clerk tvithin twenty days, the person entitled to receive such ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍commission is deemed to have refused to accept the office, and such office shall he considered vacant. The clerk shall forthwith certify the fact to the governor who shall fill the vacancy.” (Emphasis added.)