Berry v. Greene ( 1999 )

BERRY V. GREENE, JUDGE, ET AL.
[Cite as Berry v. Greene (1999), 87 Ohio St. 3d 1235.]
Motions to dismiss petition for writ of habeas corpus granted and cause dismissed.
(No. 99-1518 – Submitted October 12, 1999 – Decided December 22, 1999.)
IN HABEAS CORPUS.
ON MOTIONS TO DISMISS.
__________________
Denise R. Berry, pro se.
William D. Mason, Cuyahoga County Prosecuting Attorney, and L.
Christopher Frey, Assistant Prosecuting Attorney, for respondent Judge Lillian J.
Greene.
Betty D. Montgomery, Attorney General, and Diane D. Mallory, Assistant
Attorney General, for respondent Attorney General.
__________________
Respondents’ motions to dismiss are granted, and the cause is dismissed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ.,
concur.
LUNDBERG STRATTON, J., concurs separately.
__________________
LUNDBERG STRATTON, J., concurring. Petitioner filed a complaint with
this court seeking a writ of habeas corpus to compel respondent Court of Common
Pleas of Cuyahoga County, through Judge Lillian J. Greene, and respondent
Bureau of Criminal Identification and Investigation (“BCI”), through the Ohio
Attorney General, to clear her record.1 Petitioner also claims that her record at the
BCI was released without authorization to her employer, which caused her to lose
her job. I agree with the majority’s dismissal of this case. I write separately
because I wish to underscore an apparent injustice.
Petitioner was indicted on drug charges on January 17, 1996. These charges
were reflected on petitioner’s BCI record. On March 26, 1996, petitioner pled no
contest and accepted treatment in lieu of conviction, during which time the
proceedings against her were stayed. But petitioner’s BCI record erroneously
reflected that she was convicted of the drug charges. Petitioner alleges that in July
1997 the court of common pleas suspended her driver’s license because of her
“drug-related felonies.”
Petitioner completed her treatment, and on October 24, 1997, Judge Greene
dismissed the charges against petitioner. Petitioner moved Judge Greene to
expunge her record. On February 2, 1998, Judge Greene granted the motion and
issued a “Judgment of Expungement of Conviction.” (Emphasis added.) A notice
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of the expungement was forwarded to the BCI. In turn, petitioner’s BCI record
noted the expungement.
On May 17, 1999, Judge Greene filed an amended “Judgment of
Expungement Following * * * Treatment in Lieu of Conviction.” (Emphasis
added.) Judge Greene sent notice of the amended expungement to the BCI on May
25, 1999.
Although Judge Greene’s original judgment mistakenly expunged a
conviction, it appears that she subsequently corrected that error and has complied
with her duties with regard to petitioner’s record in this case. The BCI, on the
other hand, fails to contradict the merits of petitioner’s claims; its brief merely
states that the petitioner has no claim for relief pursuant to a complaint for a writ of
habeas corpus because she was never incarcerated.
Our entire legal system is predicated upon a body of law that dictates that
specific procedures must be used to obtain certain types of relief. We cannot
simply ignore these procedures and grant relief solely upon what appears to be just.
To do so would create turmoil in our legal system.
“The extraordinary remedy of habeas corpus is for the purpose of
determining the legality of the restraint or custody under which a person is held.”
In re Lockhart (1952), 157 Ohio St. 192, 47 Ohio Op. 129, 105 N.E.2d 35, paragraph
two of the syllabus. By petitioner’s own admission she is not, and has never been,
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restrained. Therefore, petitioner’s complaint seeking a writ of habeas corpus fails
to state a claim upon which relief can be granted. Thus, I must regrettably concur
in dismissing this case.
That is not to say that petitioner is necessarily without a remedy. The
“evidence” seems to indicate that the suspension of petitioner’s driver’s license in
1997 was due to the 1996 drug charges before Judge Greene. These charges were
dismissed. Surely, if this characterization of the “evidence” is correct, the Bureau
of Motor Vehicles would voluntarily reinstate petitioner’s driver’s license.
The “evidence” also seems to indicate that the BCI has improperly
maintained petitioner’s record. Petitioner’s BCI record indicates that she was
convicted of drug charges. Yet Judge Greene indicates that these drug charges
were dismissed. The judgment entry attached to petitioner’s brief confirms the
dismissal.
Although there is no express proof that the petitioner’s BCI record was
released to her employer, petitioner’s possession of her record implies that the
BCI improperly released her record to an unauthorized person despite Judge
Greene’s Judgment of Expungement that sealed petitioner’s record. Excluding
certain exceptions, not raised here, sealed records are not to be available for
inspection. See R.C. 2953.53.
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Surely if this characterization of the “evidence” is correct, the BCI would
voluntarily correct petitioner’s record to reflect that the drug charges against her
were dismissed, as well as prevent further release of her record to any
unauthorized party.
But should the BCI fail to act, petitioner’s appropriate recourse might lie in a
complaint seeking a writ of mandamus to compel the BCI to correct her record to
reflect the dismissal of the drug charges. Petitioner might have recourse in the
form of a declaratory action seeking a judgment declaring that her BCI record
should not be made available to unauthorized persons. If the BCI knowingly
released petitioner’s record, petitioner, through the prosecutor, might also be able
to pursue criminal charges. See R.C. 2953.55(B). Finally, petitioner might have a
mandamus action to compel the Bureau of Motor Vehicles to reinstate her driver’s
license.
Therefore, I concur with the dismissal of this case, but express my dismay at
the apparent injustice that has occurred against the petitioner.
FOOTNOTE:
1. In the caption of her petition, petitioner names two respondents: (1) the
Common Pleas Court of Cuyahoga County, through Judge Greene, and (2) the
Ohio Attorney General. However, in the body of her petition it is clear that
petitioner’s complaints directed at the Attorney General are more specifically
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directed to the BCI, which is part of the Attorney General’s Office. See R.C.
109.51. Therefore, for purposes of clarity, I shall refer to the BCI as the second
respondent throughout the remainder of my concurrence.
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