North v. Beightler , 112 Ohio St. 3d 122 ( 2006 )

[Cite as North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515.]
NORTH, APPELLANT, v. BEIGHTLER, WARDEN, APPELLEE.
[Cite as North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515.]
Habeas corpus — Issue not raised in court of appeals is waived on appeal —
Petition that does not include copies of all pertinent commitment papers
required by R.C. 2725.04 is defective — Court of appeal’s denial of writ
affirmed.
(No. 2006-1165 ─ Submitted November 15, 2006 ─ Decided
December 27, 2006.)
APPEAL from the Court of Appeals for Marion County, No. 9-06-11.
__________________
Per Curiam.
{¶ 1} This is an appeal from a judgment dismissing a habeas corpus
petition.
{¶ 2} On April 2, 1997, the Lorain County Court of Common Pleas
convicted appellant, John R. North, of aggravated burglary and aggravated
robbery and sentenced him to an aggregate prison term of five years. On October
23, 2001, North was released from prison and placed on postrelease control.
{¶ 3} On July 19, 2005, the Adult Parole Authority held a hearing and
found North guilty of violating the terms of his postrelease control by, among
other things, escaping the Parole Authority’s detention. The Parole Authority
imposed a 180-day prison term as a sanction for the postrelease-control violation.
On August 29, 2005, the common pleas court convicted North of escape and
sentenced him to one year in prison.
{¶ 4} On March 20, 2006, North filed a petition in the Court of Appeals
for Marion County for a writ of habeas corpus to compel his release from prison.
North claimed that because postrelease control was never made a part of his initial
SUPREME COURT OF OHIO
sentence in April 1997, his incarceration was unlawful based on our decision in
Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301.
{¶ 5} On May 19, 2006, the court of appeals dismissed North’s petition.
{¶ 6} In his appeal as of right, North asserts that the postrelease-control
language in a purported 2004 sentence for attempted escape did not legally
impose postrelease control because it stated that “postrelease control is
(mandatory/optional) in this case up to a maximum of (3/5) years.” North did not,
however, raise this issue in his petition or in the proceedings in the court of
appeals, so he has waived this issue on appeal. Phillips v. Irwin, 96 Ohio St.3d
350, 2002-Ohio-4758, 774 N.E.2d 1218, ¶ 6 (habeas corpus petitioner waived her
preeminent claim on appeal because she failed to raise it in the court of appeals);
see, also, Taylor v. Mitchell (2000), 88 Ohio St.3d 453, 454, 727 N.E.2d 905, fn.
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{¶ 7} Moreover, North cannot now add his September 28, 2004 sentence
for attempted escape to the record to support his claim on appeal. Dzina v.
Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202, ¶ 16 (“We
cannot, however, add matter to the record before us that was not part of the court
of appeals’ proceedings and then decide the appeal on the basis of the new
matter”).
{¶ 8} Further, by now claiming that the 2004 sentence is pertinent to his
habeas corpus claim, North effectively concedes that by not attaching a copy of it
to his petition, dismissal of his petition was warranted for failing to comply with
the requirement in R.C. 2725.04(D) to include the commitment papers. Harris v.
Anderson, 109 Ohio St.3d 101, 2006-Ohio-1934, 846 N.E.2d 43, ¶ 10.
{¶ 9} North further asserts that the court of appeals erred in dismissing
his petition because his current incarceration resulted from his April 2, 1997
sentence, which did not include any term for postrelease control. However, at the
time he filed his habeas corpus petition and the court of appeals dismissed it, he
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January Term, 2006
was incarcerated in part because of his August 29, 2005 sentence for escape. He
thus had an adequate remedy at law by appeal from that sentence to raise his
claim that his escape conviction was invalid.
{¶ 10} Based on the foregoing, the court of appeals properly dismissed
North’s habeas corpus petition. Accordingly, we affirm the judgment of the court
of appeals.
Judgment affirmed.
MOYER, C.J., RESNICK, PFEIFER, LUNDBERG STRATTON, O’CONNOR and
O’DONNELL, JJ., concur.
LANZINGER, J., concurs in judgment only.
__________________
David H. Bodiker, Ohio Public Defender, and Stephen P. Hardwick,
Assistant Public Defender, for appellant.
Jim Petro, Ohio Attorney General, and Jerri L. Fosnaught, Assistant
Attorney General, for appellee.
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