Spires v. Marquis ( 2018 )

[Cite as Spires v. Marquis, 2018-Ohio-3146.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
KEVIN SPIRES : JUDGES:
:
Petitioner : Hon., John W. Wise, PJ.
: Hon., Patricia A. Delaney, J.
: Hon., Earle E. Wise Jr., J.
-vs- :
:
DAVID MARQUIS, Warden : Case No. 18CA43
Richland Correctional Institution :
:
:
Respondent : OPINION
CHARACTER OF PROCEEDING: Writ of Habeas Corpus
JUDGMENT: Dismissed
DATE OF JUDGMENT: August, 3, 2018
APPEARANCES:
For Petitioner: For Respondent:
Kevin Spires A636889 Michael DeWine
Richland Correctional Institution Ohio Attorney General
1001 Olivesburg Rd.
P.O. Box 8107 Mary Anne Reese
Mansfield, Ohio 44901-8107 Assistant Attorney General
Criminal Justice Section
441 Vine Street, Suite 1600
Cincinnati, Ohio 45202
Richland County, Case No. 18CA43 2
Delaney, P.J.
{¶1} Petitioner Kevin Spires has filed a Complaint for Writ of Habeas corpus
requesting release from prison based upon the allegation that the trial court improperly
allowed his indictment to be amended without going through the grand jury. Respondent
David Marquis, the warden of the Richland Correctional Institution has filed a Motion for
Summary Judgment.
FACTS
¶2} Petitioner was convicted of eight counts of rape following a jury trial. During
trial, the state moved to amend the indictment to reflect the victim was ten years of age
rather than nine years of age during the allegations contained in the first four counts of
the indictment. State v. Spires, 10th Dist. Franklin No. 10AP-861, 2011-Ohio-3312, ¶ 8.
The trial court granted the motion to amend over Petitioner’s objection. Id. Petitioner was
convicted and sentenced to a term of 20 years to life in prison. Petitioner’s sole claim is
that the trial court lacked jurisdiction to convict him because the indictment was permitted
to be amended without going through the grand jury process.
SUMMARY JUDGMENT
{¶3} “A court properly grants summary judgment “when an examination of all
relevant materials filed in the action reveals that ‘there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.’ ” Smith
v. McBride, 130 Ohio St. 3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12, quoting Civ.R.
56(C).” State ex rel. Marsh v. Tibbals, 149 Ohio St. 3d 656, 2017-Ohio-829, 77 N.E.3d
909, ¶ 11.
Richland County, Case No. 18CA43 3
HABEAS CORPUS
{¶4} “Habeas corpus will lie only to challenge the jurisdiction of the sentencing
court. R.C. 2725.05.” Patrick v. Bunting, 150 Ohio St. 3d 537, 2017-Ohio-6954, 83 N.E.3d
926, ¶ 5. A claim regarding the validity of an amended indictment is nonjurisdictional in
nature and should be raised on appeal of the criminal conviction. Haynes v. Voorhies,
110 Ohio St. 3d 243, 2006-Ohio-4355, 852 N.E.2d 1198, ¶ 5 (2006)
{¶5} The Supreme Court has held, “[H]abeas corpus is not available to remedy
a claim concerning the validity of an amendment to an indictment. See, e.g., Howard v.
Randle, 95 Ohio St. 3d 281, 2002-Ohio-2122, 767 N.E.2d 268, ¶ 6; State ex rel. Richard
v. Seidner (1996), 76 Ohio St. 3d 149, 151, 666 N.E.2d 1134.” Haynes v. Voorhies, 110
Ohio St. 3d 243, 2006-Ohio-4355, 852 N.E.2d 1198, ¶ 6.
{¶6} Because a claim as to validity of an amended indictment does not lie in
habeas corpus and because Petitioner has or had an adequate remedy at law by way of
appeal to challenge the amended indictment, the writ of habeas corpus will not issue.
The motion for summary judgment is granted.
By, Wise, P.J.
Delaney, J. and
E. Wise Jr., J. concur.
[Cite as Spires v. Marquis, 2018-Ohio-3146.]