State ex rel. Winnick v. Gansheimer ( 2006 )

[Cite as State ex rel. Winnick v. Gansheimer, 112 Ohio St. 3d 149, 2006-Ohio-6521.]
THE STATE EX REL. WINNICK, APPELLANT, v. GANSHEIMER, WARDEN,
APPELLEE.
[Cite as State ex rel. Winnick v Gansheimer, 112 Ohio St. 3d 149, 2006-Ohio-
6521.]
Habeas corpus — Petition that does not include copies of all pertinent
commitment papers or verification required by R.C. 2725.04 is defective
— Court of appeals’ denial of writ affirmed.
(No. 2006-1318 ─ Submitted November 15, 2006 ─ Decided
December 27, 2006.)
APPEAL from the Court of Appeals for Ashtabula County,
No. 2006-A-0009, 2006-Ohio-3431.
__________________
Per Curiam.
{¶ 1} This is an appeal from a judgment dismissing a petition for a writ
of habeas corpus. Because the petition is fatally defective, we affirm.
{¶ 2} On February 24, 2006, appellant, Horace Winnick, filed a petition
in the Court of Appeals for Ashtabula County for a writ of habeas corpus to
compel appellee, his prison warden, to release him from prison. Winnick claimed
that he had served his sentence. Winnick included a computer-generated prison
update sheet indicating that he had been convicted and sentenced for four separate
criminal offenses, but he attached a sentencing entry covering only two of the four
convictions. In addition, Winnick’s petition contained no verification.
{¶ 3} On March 16, 2006, the court of appeals issued an alternative writ
and ordered the warden to file either an answer or a motion to dismiss within 15
days. When the warden did not file a timely response, Winnick filed a motion for
SUPREME COURT OF OHIO
judgment on the pleadings. On June 30, 2006, the court of appeals dismissed the
petition.
{¶ 4} In his appeal as of right, Winnick asserts that the court of appeals
erred in dismissing his petition. For the following reasons, Winnick’s contentions
lack merit.
{¶ 5} Winnick’s petition was fatally defective because he failed to
include copies of all pertinent commitment papers. R.C. 2725.04(D). Winnick
attached a sentencing entry for two of his four convictions, but failed to attach
entries for his remaining convictions, which are referred to in an exhibit to his
petition. Harris v. Anderson, 109 Ohio St. 3d 101, 2006-Ohio-1934, 846 N.E.2d
43, ¶ 10. “These commitment papers are necessary for a complete understanding
of the petition. Without them, the petition is fatally defective.” Bloss v. Rogers
(1992), 65 Ohio St. 3d 145, 146, 602 N.E.2d 602. The attached, but unsigned and
unverified, update sheet does not constitute an appropriate commitment paper.
Hairston v. Seidner (2000), 88 Ohio St. 3d 57, 58, 723 N.E.2d 575 (“court of
record speaks only through its journal entries,” so failure to attach a sentencing
entry for one of multiple criminal cases required dismissal of habeas corpus
petition).
{¶ 6} Moreover, Winnick’s petition was also fatally defective and
subject to dismissal because it was not verified as required by R.C. 2725.04. In re
Complaint for Writ of Habeas Corpus for Goeller, 103 Ohio St. 3d 427, 2004-
Ohio-5579, 816 N.E.2d 594, ¶ 17.
{¶ 7} Finally, the mere fact that the warden did not submit a timely
response to the petition when ordered to do so did not entitle Winnick to a default
judgment granting the writ. Cf. State ex rel. Shimola v. Cleveland (1994), 70
Ohio St. 3d 110, 112, 637 N.E.2d 325, quoting Civ.R. 55(D) (“a default judgment
may be entered against the state only if the ‘claimant establishes his claim or right
to relief by evidence satisfactory to the court’ ”). Under Loc.R. 101(B)(2) of the
2
January Term, 2006
Eleventh Appellate District, the granting of the alternative writ meant that the
petition might not state a viable habeas corpus claim: “If this Court concludes
that the petition in habeas corpus may not state a viable claim for relief, an
alternative writ shall be issued requiring the respondent to file a written response
to the petition.” Although this procedure appears comparable to allowing a writ
pursuant to R.C. 2725.06, Winnick’s petition remained fatally defective and
subject to dismissal. Chari v. Vore (2001), 91 Ohio St. 3d 323, 327, 744 N.E.2d
763 (court of appeals erred in allowing the writ and ordering a return in habeas
corpus case because the petition was not properly verified).
{¶ 8} Based on the foregoing, the court of appeals acted properly by
dismissing appellant’s petition. Accordingly, we affirm the judgment of the court
of appeals.
Judgment affirmed.
MOYER, C.J., RESNICK, PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL and LANZINGER, JJ., concur.
__________________
Horace Winnick, pro se.
Jim Petro, Attorney General, and Steven H. Eckstein, Assistant Attorney
General, for appellee.
______________________
3