State ex rel. Cannon v. Mohr (Slip Opinion) , 155 Ohio St. 3d 213 ( 2018 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Cannon v. Mohr, Slip Opinion No. 2018-Ohio-4184.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2018-OHIO-4184
THE STATE EX REL. CANNON, APPELLANT, v. MOHR, DIR., ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Cannon v. Mohr,
Slip Opinion No. 2018-Ohio-4184.]
Habeas corpus—Petition failed to comply with R.C. 2725.04(D)—Petitioner is not
entitled to immediate release—Court of appeals’ dismissal of petition for
writ affirmed.
(No. 2017-1640—Submitted April 24, 2018—Decided October 17, 2018.)
APPEAL from the Court of Appeals for Marion County, No. 9-17-32.
________________
Per Curiam.
{¶ 1} Appellant, Larry Cannon, appeals the Third District Court of
Appeals’ dismissal of his petition for a writ of habeas corpus. We affirm.
I. Background
{¶ 2} On June 30, 2009, Cannon pleaded guilty in Summit County
Common Pleas Court to multiple theft offenses and was sentenced to consecutive
definite terms totaling 4½ years. State v. Cannon, Summit C.P. No. CR-2009-04-
1330A. And on June 16, 2010, he pleaded guilty to four charges in two separate
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cases in Cuyahoga County Common Pleas Court and received a total aggregate
sentence of 2 years, to be served concurrently with the sentence in the Summit
County case. State v. Cannon, Cuyahoga C.P. No. CR-535418; State v. Cannon,
Cuyahoga C.P. No. CR-535419.
{¶ 3} On August 17, 2017, Cannon filed in the Third District Court of
Appeals a petition for a writ of habeas corpus against appellees, Gary Mohr,
director of the Ohio Department of Rehabilitation and Correction, Andre Imbrogno,
chair of the Ohio Parole Board, and Lyneal Wainwright, warden of the Marion
Correctional Institution. Cannon alleged that because as of July 28, 2014, he had
served the 4½-year sentence for the Summit County convictions and the concurrent
2-year sentence for the Cuyahoga County convictions, he was entitled to immediate
release.
{¶ 4} Appellees filed a motion to dismiss or, in the alternative, a motion
for summary judgment. They argued that the petition was procedurally defective
and that Cannon was not entitled to immediate release, because he was incarcerated
for convictions in addition to those mentioned above and his maximum sentence
for those additional convictions will not expire until July 12, 2032.
{¶ 5} The court of appeals dismissed Cannon’s petition for a host of
procedural and substantive reasons. Most significantly, the court faulted Cannon
for his failure to attach all his commitment papers, in violation of R.C. 2725.04(D).
In addition, the court held that the record did not support Cannon’s claim for
immediate release:
The petition and attachments clearly reflect that Petitioner is
detained under multiple indefinite sentences that do not expire until
July 12, 2032. Petitioner’s calculation fails to account for parole
revocations and additional sentences, imposed by the Cuyahoga
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County Court of Common Pleas, that are required to be served
consecutive to the sentence imposed by Summit County.
Cannon appealed.
II. Analysis
A. The petition failed to comply with R.C. 2725.04(D)
{¶ 6} A petition for a writ of habeas corpus must include “[a] copy of the
commitment or cause of detention of such person.” R.C. 2725.04(D). To comply
with this rule, an inmate must attach all pertinent papers that caused his
commitment, including sentencing entries and parole-revocation decisions. See
State ex rel. Finfrock v. Ohio Adult Parole Auth., 80 Ohio St. 3d 639, 640, 687
N.E.2d 761 (1998). Failure to comply with R.C. 2725.04(D) is fatal to a habeas
corpus petition. Cook v. State, 150 Ohio St. 3d 96, 2016-Ohio-3415, 79 N.E.3d 516,
¶ 7.
{¶ 7} Cannon attached to his petition the sentencing entries in Summit
County Common Pleas Court case No. CR-2009-04-1330A and Cuyahoga County
Common Pleas Court case Nos. CR-535418 and CR-535419. But he also attached
documents that demonstrated the petition was missing relevant commitment
papers; the documents indicated that Cannon still had prison time to serve for other
convictions for which he did not provide documentation.
{¶ 8} For example, Cannon attached records showing that in early 1975,
he was sentenced to a term of 1 to 15 years in prison after pleading guilty to one
count of robbery, State v. Cannon, Cuyahoga C.P. No. CR-10486, and later that
year, he was sentenced to a term of 2 to 15 years for another robbery offense. State
v. Cannon, Cuyahoga C.P. No. CR-16618. Thus, as of 1975, Cannon had a
maximum sentence of at least 30 years.
{¶ 9} Cannon admits that after serving “part” of those sentences, he was
granted parole and that “[d]uring his term of parole supervision, he violated parole
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numerous times and was returned to prison.” His petition demonstrates that in
1983, he received concurrent sentences of 2 to 5 years after being convicted of
receiving stolen property and breaking and entering. State v. Cannon, Cuyahoga
C.P. No. CR-178753B; State v. Cannon, Cuyahoga C.P. No. CR-178828A. And in
1985, he pleaded guilty to one count of escape, with specifications, and was
sentenced to a term of 1½ to 5 years. State v. Cannon, Cuyahoga C.P. No. CR-
197575.
{¶ 10} To be entitled to a writ of habeas corpus, a party must show that he
is being unlawfully restrained of his liberty, R.C. 2725.01, and that he is entitled to
immediate release from prison or confinement, Leyman v. Bradshaw, 146 Ohio
St.3d 522, 2016-Ohio-1093, 59 N.E.3d 1236, ¶ 8. To state a claim for habeas relief
and satisfy the Revised Code filing requirements, Cannon needed to submit
complete records of his incarcerations and releases. Absent those records, it is
impossible to determine how much prison time he actually served and therefore
impossible to conclude that he completed his sentences and is entitled to immediate
release. The court of appeals correctly determined that Cannon’s petition was
defective on its face because some of his commitment papers were missing and
because it did not allege sufficient facts to show that he was entitled to immediate
release.
B. Cannon’s arguments on appeal
{¶ 11} Cannon’s legal arguments are mostly unresponsive to the problems
identified by the court of appeals. For example, he argues, citing federal case law,
that his confinement for violating parole is unlawful because he is no longer subject
to parole supervision for any of his convictions. But that argument merely
underscores the defect in his pleadings: he should have attached all his release
papers in order to demonstrate that he completed all his sentences. Alternatively,
Cannon notes that his assigned prisoner number remains the one he received after
his Summit County convictions, which he argues proves that he was not
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reincarcerated for any other convictions. However, evidence regarding his prisoner
number is not a substitute for the complete records required by R.C. 2725.04(D).
Judgment affirmed.
O’CONNOR, C.J., and O’DONNELL, FRENCH, FISCHER, DEWINE, and
DEGENARO, JJ., concur.
KENNEDY, J., concurs in judgment only.
_________________________
Larry Cannon, pro se.
Michael DeWine, Attorney General, and Maura O’Neill Jaite, Assistant
Attorney General, for appellees.
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