Stahl v. Shoemaker
364 N.E.2d 286
Ohio
1977
Check Treatment
Per Curiam.

Rеlative to considering the allowance or denial of extraordinary writs, this court possesses original jurisdiction in habeas corpus by virtue of specific constitutional statement;1 the exercise of such original jurisdictiоn likewise is constitutionally granted to courts of appeal.2 Our jurisdiction entails the corresponding responsibility to regulate the use by the courts of such extraordinary writ as habeas corpus.3

*353. Consequently, in the cause bеfore, us today, our primary question must concern the appropriateness of the remedy sought. The common and statutory law of this state makes it clear that, generally, ‍‌​‌​‌​‌​​​​​‌​‌​​​‌‌​‌​​‌​‌‌​‌‌​‌​‌‌‌​‌​‌​​‌‌‌‌​‍relief in habeas corpus is not to be affоrded a prisoner if it appears that he is held pursuant to a judgment of conviction of a court of record enjoying jurisdiction to render that judgment.

In the second paragraph of the syllabus in Ex parte Van Hagan (1874), 25 Ohio St. 426, this court declared: “Habeas corpus is not the proper mode of redress, where the relator has been convicted of a criminal offense, and sentenced to imprisonment therefor by a court of competent jurisdiction; if errors or irregularities have occurred in the proceedings or sentence, a writ of error is the proper remedy.” (Modified in In re Copley [1972], 29 Ohio St. 2d 35.)

The fourth paragraph of the syllabus of In re Burson (1949), 152 Ohio St. 375, 89 N. E. 2d 651, reiterates: “Where a person restrained of his liberty is in custody of an officer under process issued by a court or magistrate, or by virtue of a judgment or order of a court of reсord, and the court or magistrate had jurisdiction to issue the process, render the judgment or make the order, a discharge from custody by the writ of habeas corpus will not be allowed. * * *” See, also, Burns v. Tarbox (1907), 76 Ohio St. 520, 81 N. E. 761; Freeman v. Maxwell (1965), 4 Ohio St. 2d 4, 5, 210 N. E. 2d 885; Anderson v. Maxwell (1967), 10 Ohio. St. 2d 188, 226 N. E. 2d 103; Bradley v. Cardwell (1969), 20 Ohio St. 2d 1, 2, 251 N. E. 2d 605; In re Copley (1972), 29 Ohio St. 2d 35, 36, 278 N. E. 2d 358; Burton v. Reshetylo (1974), 38 Ohio St. 2d 35, 37, 309 N. E. 2d 907.

*354' , Appellees rely in part upon R. C. 2725,054 in:contending that apрellant’s petition for a writ of habeas corpns states no claim, upon, which relief can be granted.. Whether or not appellees’ conclusion is correct (because appellant is: in custody pursuant to a valid judgment of conviction by a court of record having jurisdiction to render the judgment), the conclusion can be reached independently of reliance upon R. C. 2725.05. That statute need not be construed as cоntrolling the exercise of original jurisdiction in habeas corpus constitutionally granted to courts of apрeal and this court, and it is unnecessary to the resolution of the in* stant appeal to perpetuate the view that a statute constitutes the “authority” by which this classic writ subsists. See State, ex rel. Halak, v. Cebula (1977), 49 Ohio St. 2d 291, 294, 361 N. E. 2d 244 (Herbert, J., concurring).,, . .

A party detained pursuant to the judgment of а court is entitled to the writ of hábeas corpus if the court, lacked jurisdiction to enter the judgment. However, ‍‌​‌​‌​‌​​​​​‌​‌​​​‌‌​‌​​‌​‌‌​‌‌​‌​‌‌‌​‌​‌​​‌‌‌‌​‍non-jurisdi'c-tional errors afford no basis for issuing the writ. Habeas corpus is not a substitute for appeal or for a mandamus pro^ ceeding.5 Although the writ is available to parties-who unlawfully are deprived of their liberty, it is unavailable tо those deprived of their freedom pursuant to .a lawful, criminal sentence.6

*355■ Examination of the record demonstrates that appellant is in the custody of appellee pursuant to a prison sentence ■оf from one to twenty years for forgery, which appellant began serving in 1972, and from which he has been parolеd. We need not assess the supposed merits' of any of the assertions appellant makes before us; . Appellant fails to challenge the jurisdiction of the court responsible for his current commitment; instead he сhallenges the Adult Parole Authority. Therefore, habeas corpus is. an improper avenue of relief in thе instant 'cause. . Habeas corpus is not available to review an action taken by .the Adult Parole Authority. Sykes v. Kreiger (1972), 32 Ohio St. 2d 132, 133, 290 N. E. 2d 180.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

O’Neiel,.. C. J., ■ Herbert, W. Brown, P. Brown, Sweeney and Locher, JJ., concur. Celebrezze, J., concurs in the judgment.

Notes

Section 2(B) (1) (c) of Article ‍‌​‌​‌​‌​​​​​‌​‌​​​‌‌​‌​​‌​‌‌​‌‌​‌​‌‌‌​‌​‌​​‌‌‌‌​‍IV of the Constitution of Ohio.

Seсtion 3(B) (1) (c) of Article IV of the Constitution of Ohio.

For example, Justice Swan oncé cautioned: "It is said to be the practice in some parts of this state to use the writ of habeas corpus as *353a short and summary mode of rеviewing as upon a writ of error, and annulling the sentences bf courts. If this be so, it is an abuse of the writ of habeas cоrpus which cannot be too soon corrected.” Ex parte Shaw (1857), 7 Ohio St. 81, 83. See, also, In re Singer (1976), 45 Ohio St. 2d 130, 132-33, 341 N. E. 2d 849; McDuffie v. Berzzarins (1975), 43 Ohio St. 2d 23, 27, 330 N. E. 2d 667 (Herbert, J., concurring).

R. C. 2725.05 provides:

“If it appears that á person, alleged to be rеstrained of his liberty is in the custody of án officer undér process issued by á court or magistrate,- or by virtue of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the ‍‌​‌​‌​‌​​​​​‌​‌​​​‌‌​‌​​‌​‌‌​‌‌​‌​‌‌‌​‌​‌​​‌‌‌‌​‍process, render thе judgment, or make the. order, the -writ of habeas corpus shall pot be allowed. If the jurisdiction appears, after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the prоcess, judgment, or order,”

A majority of the members of the ,court , are convinced that, where the. extraordinary .writs' are concerned, it would be unwise to,relieve parties of their historic responsibility to make, their selection carefully.

Appellant appears to believe 'that after a. convicted prisoner, hаs been paroled,, his' final release is virtually reflexive on the part of the Adult Pafole Authority. However, the finаl release of paroled prisoners not only is entirely discretionary, it is to be exercised with due regard fоr the public safety.

*355R. C. 2967.16 provides, in relevant part:

“When a paroled prisoner has faithfully performed the conditions ■and obligations of his рarole and has obeyed the rulés and regulations adopted by the adult parole authority that apply to ‍‌​‌​‌​‌​​​​​‌​‌​​​‌‌​‌​​‌​‌‌​‌‌​‌​‌‌‌​‌​‌​​‌‌‌‌​‍him, the authority upon the recommendation of the superintendent of parole supervision may enter upon its minutes a final release and thereupon shall issue to the paroled prisoner a certificate of final release * * , (Emphasis added.)