Simmons v. Black (Slip Opinion) , 2022 Ohio 352 ( 2022 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Simmons v. Black, Slip Opinion No. 2022-Ohio-352.]
NOTICE
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promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2022-OHIO-352SIMMONS v. BLACK, WARDEN.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Simmons v. Black, Slip Opinion No. 2022-Ohio-352.]
Habeas corpus—Petitioner failed to state a valid claim for relief in habeas—Writ
denied.
(No. 2021-1146—Submitted October 26, 2021—Decided February 10, 2022.)
IN HABEAS CORPUS.
__________________
Per Curiam.
{¶ 1} Petitioner, Willie Simmons, seeks a writ of habeas corpus ordering
his release from the Lorain Correctional Institution, where respondent, Jennifer
Gillece Black, is the warden. We deny the writ.
I. Factual and Procedural Background
A. Allegations in Simmons’s Petition
{¶ 2} Simmons was convicted of sexual battery and gross sexual imposition
in 2009 and sentenced to three years and six months in prison. The judgment entry
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of conviction states that Simmons “was advised that he is subject to five (5) years
post release control pursuant to ORC § 2967.28.” Simmons completed his sentence
and was released from prison on September 12, 2012.
{¶ 3} On June 25, 2021, the Adult Parole Authority (“APA”) took Simmons
into custody for allegedly violating the terms of his postrelease control. On July
29, the APA found that Simmons had committed the alleged violation and imposed
a prison term of 115 days. Simmons commenced this action on September 10,
seeking his release by claiming that the APA lacks authority to imprison him for
violating the terms of his postrelease control. We ordered a return of writ. 164
Ohio St.3d 1444, 2021-Ohio-3367, 173 N.E.3d 1234.
B. Black’s Return of Writ
{¶ 4} Black timely filed her return on October 15 and provided the
following facts and documentation that Simmons did not include in his habeas
petition.
{¶ 5} Shortly after Simmons was released from prison in Ohio, he was
transferred to New York for parole supervision relating to a conviction in that state.
While in New York, Simmons was convicted of a sex offense in May 2015 and
sentenced to three and a half years in a New York prison. Simmons served his
sentence and was extradited to Ohio in June 2021.
{¶ 6} When Simmons returned to Ohio, the APA held a hearing on charges
that he violated the terms of his postrelease control imposed pursuant to his Ohio
convictions. Due to the sex offense he committed in New York, the APA found
that Simmons had violated the terms of his Ohio postrelease control and sentenced
him to 115 days’ incarceration.1
1. Simmons’s five-year period of postrelease control commenced on September 12, 2012, when he
was released from prison in Ohio. He was not charged with a postrelease-control violation in Ohio,
however, until June 2021. We note that Black’s return indicates that the APA declared Simmons a
“PRC Violator in Custody” on May 21, 2015. Thus, Simmons’s postrelease-control period may not
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January Term, 2022
II. Analysis
{¶ 7} To be entitled to a writ of habeas corpus, a petitioner must show that
he is being unlawfully restrained of his liberty and that he is entitled to immediate
release from confinement. R.C. 2725.01; State ex rel. Cannon v. Mohr, 155 Ohio
St.3d 213, 2018-Ohio-4184, 120 N.E.3d 776, ¶ 10. “A writ of habeas corpus is
generally ‘available only when the petitioner’s maximum sentence has expired and
he is being held unlawfully.’ ” Leyman v. Bradshaw, 146 Ohio St.3d 522, 2016-
Ohio-1093, 59 N.E.3d 1236, ¶ 8, quoting Heddleston v. Mack, 84 Ohio St.3d 213,
214, 702 N.E.2d 1198 (1998). Habeas is not available to challenge a
nonjurisdictional error when there is or was an adequate remedy in the ordinary
course of the law. State ex rel. Walker v. Sloan, 147 Ohio St.3d 353, 2016-Ohio-
7451, 65 N.E.3d 744, ¶ 7.
{¶ 8} Simmons alleges that the APA lacks authority to administer
postrelease control “when a sentencing entry does not contain all the required
enabling statements, such as the APA will administer the PRC and that there are
consequences for violating the conditions of PRC.” Thus, Simmons is challenging
the validity of his imprisonment on the basis that the 2009 sentencing entry did not
specify that the APA had the authority to impose or administer the postrelease-
control sanction. But this argument does not state a valid claim for relief in habeas
corpus.
{¶ 9} In order to validly impose postrelease control, a sentencing entry must
contain the following information: (1) whether postrelease control is discretionary
or mandatory, (2) the duration of the postrelease-control period, and (3) a statement
have expired by June 25, 2021, when he was extradited to Ohio. See R.C. 2967.15(C)(1) (the time
between the date on which a releasee is declared to be a violator and the date on which he is returned
to APA custody in Ohio does not count as part of the term of postrelease control). For his part,
Simmons does not expressly allege the expiration of his postrelease-control period as a basis for his
habeas claim, and he filed a waiver of the opportunity to respond to Black’s return.
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SUPREME COURT OF OHIO
to the effect that the APA will administer the postrelease control pursuant to R.C.
2967.28 and that any violation by the offender of the conditions of postrelease
control will subject the offender to the consequences set forth in that statute. State
v. Grimes, 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 1, 13. Simmons
cites Grimes as authority for his claimed right to immediate release, alleging that
his sentencing entry lacked the third element from Grimes.
{¶ 10} However, we clarified the meaning of Grimes in State v. Harper,
160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248. In Harper, as in this case,
the sentencing entry failed to advise the defendant of the consequences of violating
the conditions of his release. But we rejected the notion that this defect rendered a
sentence void; instead, we held that any error in the imposition of the postrelease-
control sanction was an error in the exercise of jurisdiction that could have been
corrected on appeal. Id. at ¶ 41.
{¶ 11} Simmons claims that Harper does not bar this action, because he is
challenging the APA’s authority to enforce the postrelease-control sanction and not
the validity of the trial court’s sentencing entry. But this is a distinction without a
difference. We rejected in Harper the proposition that an omission in the
sentencing entry voids the imposition of postrelease control. And Simmons had an
adequate remedy by way of appeal to challenge any error in his sentencing entry.
{¶ 12} For these reasons, Simmons is not entitled to relief in habeas corpus.
Writ denied.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
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Willie Simmons, pro se.
Dave Yost, Attorney General, and Stephanie L. Watson, Assistant Attorney
General, for respondent.
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January Term, 2022
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