Starcher v. EberlinStarcher v. Eberlin
PER CURIAM.
PROCEDURAL HISTORY
¶{2} On December 31, 2001, petitioner was indicted in Medina County for rape, attempted rape and gross sexual imposition. He was convicted by a jury on all counts. On January 24, 2003, appellant was sentenced to concurrent sentences totaling six years. He raised no issues to the trial court concerning his current argument. His conviction was affirmed in State v. Starcher, 9th Dist. No. 03CA0014-M, 2003-Ohio-6588, where he did not raise any issues regarding his indictment or the mens rea instructions. He failed to timely appeal to the Ohio Supreme Court, and his request for leave to file a delayed appeal was denied. State v. Starcher, 103 Ohio St.3d 1403, 2004-Ohio-3980.
PETITION FOR A WRIT
¶{3} On July 1, 2008, petitioner filed the within action seeking a writ of habeas corpus. He has also filed a motion for summary judgment. He suggests that the writ should be granted because respondent failed to answer. However, we granted respondent time to file which has not yet expired. In any case, a writ of habeas corpus is not granted thereby releasing a prisoner merely because the warden does not file an answer or a response to summary judgment. See, e.g.,
¶{4} For instance, petitioner claims that his indictment is fatally defective because it fails to state the required recklessness mental state for certain elements of the offenses. He relies entirely upon the Colon case and urges that the case has retrospective application. He concludes that the problem with the indictment is
COLON CASE REVIEW
¶{5} In Colon, the defendant was indicted for robbery, and the indictment provided the following elements: in attempting or committing a theft offense or in fleeing immediately thereafter, the defendant inflicted, attempted to inflict or threatened to inflict physical harm on the victim. See Colon, 118 Ohio St.3d 26 at ¶2. Theft carries its own mental states; for instance, purposely depriving the owner and knowingly obtaining property. However, the robbery statute does not provide a mens rea for the inflicting physical harm portion of the crime. See id. at ¶11.
¶{6} “When a section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in the section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offenses.”
¶{7} The Colon Court concluded that the mental state of recklessness applies to the inflicting physical harm portion of the robbery offense. Colon at ¶14. The Court then concluded that the failure to include this mental state in the indictment resulted in a defective indictment. Id. at ¶15. Not only was the indictment defective, but there were other indications that the defendant had no notice of this mens rea. Moreover, the state did not argue that recklessness was the test for the physical harm element and in fact treated the test as strict liability, and the trial court did not instruct the jury on recklessness as a required mental state. Id. at ¶30-31. The Supreme Court thus found structural error which permeated the entire trial. Id. at ¶19, 23, 32.
¶{8} In a reconsideration decision, the Colon Court pointed out that these factors are important evidence of an error permeating the entire trial and noted that in most defective indictment cases where the indictment fails to include an essential element, the plain error, rather than structural error, test is the proper analysis where the defendant failed to bring the error to the court‘s attention below. State v. Colon, __ Ohio St.3d __, 2008-Ohio-3749, ¶6-7. The Court also announced that Colon I was
THE OFFENSES
¶{9} The first count of petitioner‘s indictment was for rape in violation of
¶{10} “No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force.”
¶{11} The third count of petitioner‘s indictment was for gross sexual imposition in violation of
¶{12} “No person shall have sexual contact with another * * * when * * * [t]he offender purposely compels the other person * * * to submit by force or threat of force.”
ANALYSIS
¶{13} Petitioner believes that the “engage in sexual conduct with another” element of rape and the “have sexual contact with another” element of gross sexual imposition must have recklessness as their mens rea because there is no indication that strict liability is intended to be the mens rea. However, there are multiple problems with this argument and/or problems with raising it in a habeas action.
¶{14} Initially, we emphasize that contrary to petitioner‘s argument on Colon‘s retrospective application, the structural error analysis of Colon I is only to be applied prospectively to those cases pending at the time of its release. Colon II, 2008-Ohio-3749 at ¶3-5. Because this petition was filed only in response to Colon, it does not receive the benefit of such holding regarding structural error and lack of waiver.
¶{15} In any event, this case did not proceed as if strict liability were the test for the sexual conduct or sexual contact elements. Rather, the trial proceeded as if purposely was the test. The mens rea of purposely is harder to prove than recklessness (and harder to prove than strict liability). Thus, prejudice is not apparent.
¶{16} More to the point, though, the strict liability versus recklessness issue only arises “[w]here the section defining an offense does not specify any degree of culpability * * *.” See
¶{17} The entire sentence defining the offense must be read grammatically. That is to say, engaging in a sexual act1 by purposely compelling the other to submit by force or threat of force necessarily requires purpose to engage in the sexual act. In both rape and gross sexual imposition, engaging in a sexual act is the object of the submission. Accordingly, the premise of the Colon case is inapplicable to the offenses at issue in the case before us.
¶{18} Finally, the grounds here are not the proper topic for a writ of habeas corpus. See Galloway v. Money, 100 Ohio St.3d 74, 2003-Ohio-5060, ¶3,6 (where petitioner argued that the trial court lacked jurisdiction to convict and sentence him because of ambiguities in his indictments); Turner v. Ishee, 98 Ohio St.3d 411, 2003-Ohio-1671, ¶7 (“habeas corpus is not available to test the validity or sufficiency of an indictment or other charging instrument“). This ties in with the Colon II statement that the Colon I ruling cannot be applied to a conviction which becomes final as a result of the exhaustion of appellate remedies. Colon, 2008-Ohio-3749 at ¶5.
¶{19} For all of the foregoing reasons, this petition for a writ of habeas corpus is denied.
¶{20} Final order. Clerk to serve notice as provided by the Civil Rules.
VUKOVICH, J., concurs.
DONOFRIO, J., concurs.
WAITE, J., concurs.