Johnson v. Mitchell , 85 Ohio St. 3d 123 ( 1999 )

Per Curiam.

Johnson asserts in his sole proposition of law that the court of appeals erred in dismissing his habeas corpus petition. For the following reasons, however, Johnson’s claims lack merit, and the court of appeals properly dismissed his petition.

First, the Rules of Criminal Procedure, including Crim.R. 32 and 43, do not apply to cases on appeal. Crim.R. 1(C)(1); State v. McGettrick (1987), 31 Ohio St.3d 138, 141, 31 OBR 296, 299, 509 N.E.2d 378, 381, fn. 5. And, as appellee cogently observes, R.C. 2929.06, which requires a resentencing hearing in the trial court when a death sentence is vacated on appeal based on the unconstitutionality of the statutory procedures for imposing the death penalty, did not become effective until 1981, a few years after the vacation of Johnson’s death sentence. 139 Ohio Laws, Part I, 1,18-19.

Second, even assuming the invalidity of Johnson’s new sentence, which replaced his vacated death sentence, his aggregate prison sentence for his non-capital crimes precludes the writ. In other words, “ ‘[w]here 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.’ ” Marshall v. Lazaroff (1997), 77 Ohio St.3d 443, 444, 674 N.E.2d 1378, 1379, quoting Swiger v. Seidner (1996), 74 Ohio St.3d 685, 687, 660 N.E.2d 1214, 1216.

Finally, Johnson did not comply with the mandatory R.C. 2725.04(D) requirement to attach his pertinent commitment papers to his habeas corpus petition. Boyd v. Money (1998), 82 Ohio St.3d 388, 389, 696 N.E.2d 568, 569.

Based on the foregoing, we affirm the judgment of the court of appeals.

Judgment affirmed.

Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer, Cook and Lundberg Stratton, JJ., concur.