Thompson v. Gansheimer , 116 Ohio St. 3d 349 ( 2007 )

[Cite as Thompson v. Gansheimer, 116 Ohio St. 3d 349, 2007-Ohio-6666.]
THOMPSON, APPELLANT, v. GANSHEIMER, WARDEN, APPELLEE.
[Cite as Thompson v. Gansheimer, 116 Ohio St. 3d 349, 2007-Ohio-6666.]
A violation of the statutory requirement to convey a convicted felon to prison
within five days after sentencing is not cognizable in habeas corpus.
(No. 2007-1398 ─ Submitted December 12, 2007 ─ Decided
December 19, 2007.)
APPEAL from the Court of Appeals for Ashtabula County,
No. 2006-A-0086, 2007-Ohio-3477.
__________________
Per Curiam.
{¶ 1} This is an appeal from a judgment denying a writ of habeas corpus.
Because a violation of the statutory requirement to convey a convicted felon to
prison within five days after sentencing is not cognizable in habeas corpus and
neither invalidates the sentence nor entitles the prisoner to release from sentences
for other crimes, we affirm.
{¶ 2} In July 2004, after a jury convicted appellant, Ramon Thompson,
of drug possession, preparation of drugs for sale, and possessing criminal tools,
the Cuyahoga County Court of Common Pleas sentenced him to an aggregate
prison term of 17 months. One month later, in a separate criminal case, the
common pleas court sentenced Thompson to an aggregate ten-year prison term on
his convictions for felonious assault with firearm specifications and having
weapons while under disability. In 2005, the common pleas court sentenced
Thompson to six months in prison upon his guilty plea to a drug-possession
charge.
{¶ 3} In December 2006, Thompson filed a petition in the Court of
Appeals for Ashtabula County for a writ of habeas corpus to compel appellee,
SUPREME COURT OF OHIO
Lake Erie Correctional Institution Warden Rich Gansheimer, to release him from
prison. Thompson claimed that he was not conveyed to prison within five days
after his 17-month prison sentence was imposed, as required by R.C. 2949.12, and
that this defect affected the trial court’s jurisdiction to sentence him in the other
cases. The warden submitted a motion for summary judgment, which included
evidence that Thompson is currently incarcerated on only his ten-year prison
sentence. In July 2007, the court of appeals granted the warden’s motion and
denied the writ.
{¶ 4} In his appeal as of right, Thompson asserts that the court of appeals
erred in denying the writ of habeas corpus. He relies on R.C. 2949.12, which
provides that “[u]nless the execution of sentence is suspended, a convicted felon
who is sentenced to serve a term of imprisonment in a state correctional
institution shall be conveyed, within five days after sentencing, excluding
Saturdays, Sundays, and legal holidays, by the sheriff of the county in which the
conviction was had to the facility that is designated by the department of
rehabilitation and correction for the reception of convicted felons.”
{¶ 5} For the following reasons, Thompson’s assertion lacks merit.
{¶ 6} First, any claimed failure to convey Thompson to prison within the
five-day period following sentencing provided in R.C. 2949.12 is not cognizable
in habeas corpus. See Norton v. Green (1962), 173 Ohio St. 531, 535, 20 O.O.2d
148, 184 N.E.2d 401, construing the similarly worded General Code provision.
{¶ 7} Second, “[t]he requirements of R.C. 2949.12 are merely directory
in nature and may not be used to invalidate a defendant’s sentence or prevent its
enforcement.” State v. Vaughn (1995), 106 Ohio App. 3d 775, 786, 667 N.E.2d
82; see also Ex Parte Silverman (1942), 69 Ohio App. 128, 133, 23 Ohio Op. 555, 42
N.E.2d 87, construing the General Code provision. In fact, in his petition,
Thompson conceded that R.C. 2949.12 is not mandatory.
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January Term, 2007
{¶ 8} Finally, even assuming the invalidity of Thompson’s 17-month
sentence, he is not entitled to the writ, because he is incarcerated on his ten-year
sentence, for which he does not claim any R.C. 2949.12 defect. “Where a
petitioner is incarcerated for several crimes, the fact that the sentencing court may
have lacked jurisdiction to sentence him on one of the crimes does not warrant his
release in habeas corpus.” Swiger v. Seidner (1996), 74 Ohio St. 3d 685, 687, 660
N.E.2d 1214; see also Haynes v. Voorhies, 110 Ohio St. 3d 243, 2006-Ohio-4355,
852 N.E.2d 1198, ¶ 7.
{¶ 9} Based on the foregoing, we affirm the judgment of the court of
appeals.
Judgment affirmed.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
Ramon Thompson, pro se.
Marc Dann, Attorney General, and Diane Mallory, Assistant Attorney
General, for appellee.
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