Perry v. Sloan , 2016 Ohio 1605 ( 2016 )

[Cite as Perry v. Sloan, 2016-Ohio-1605.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
RONNIE PERRY, : PER CURIAM OPINION
Petitioner, :
CASE NO. 2015-A-0064
- vs - :
BRIGHAM SLOAN, WARDEN, :
Respondent. :
Original Action for Writ of Habeas Corpus.
Judgment: Petition dismissed.
Ronnie Perry, pro se, PID: A642-540, Lake Erie Correctional Institution, P.O. Box
8000, 501 Thompson Road, Conneaut, OH 44030 (Petitioner).
Mike DeWine, Ohio Attorney General, and Jerri L. Fosnaught, Assistant Attorney
General, Criminal Justice Section, 150 East Gay Street, 16th Floor, Columbus, OH
43215 (For Respondent).
PER CURIAM.
{¶1} This matter is before the court pursuant to the petition for writ of habeas
corpus filed by pro se petitioner, Ronnie Perry, against respondent, Brigham Sloan,
warden. This court granted an alternative writ ordering respondent to respond to the
petition. Respondent filed a motion to dismiss, pursuant to Civ.R. 12(B)(6). For the
reasons that follow, we grant respondent’s motion and dismiss the petition.
{¶2} Petitioner, in Richland County Court of Common Pleas case number 2012
CR 421, was charged by indictment with one count of marijuana possession, in violation
of R.C. 2925.11(A) and (C)(3)(e), and one count of trafficking in marijuana, in violation
of R.C. 2925.03(A)(1) and (C)(3)(e), both felonies of the third degree. In case number
2012 CR 832, appellant was charged by indictment with possession of marijuana, in
violation of R.C. 2925.11(A) and (C)(3)(g), a felony of the second degree. A jury trial
was held; petitioner was found guilty.
{¶3} In case number 2012 CR 421, petitioner was sentenced to a prison term
of 15 months, later amended to 12 months. In case number 2012 CR 832, appellant
was sentenced to a prison term of eight years to be served consecutively to the
sentence in 2012 CR 421. An appeal followed. The Fifth Appellate District affirmed the
judgment of the trial court. State v. Perry, 5th Dist. Richland Nos. 13CA56, 14CA27, &
14CA28, 2015-Ohio-779. The Ohio Supreme Court declined jurisdiction to hear the
appeal. State v. Perry, 143 Ohio St. 3d 1406, 2015-Ohio-2747. See also Perry v. Sloan,
N.D. Ohio No. 1:15 CV 1624, 2015 U.S. Dist. LEXIS 120564 (Sept. 8, 2015), denying
writ of habeas corpus.
{¶4} Petitioner claims he is entitled to immediate release from confinement as
the jury verdict forms in the above referenced cases failed to contain either the degree
or the elements of the crimes of which he was convicted.
{¶5} Habeas corpus is an available remedy only in “certain extraordinary
circumstances where there is an unlawful restraint of a person’s liberty, notwithstanding
the fact that only nonjurisdictional issues are involved, but only where there is no
adequate legal remedy, e.g., appeal or postconviction relief.” State ex rel. Jackson v.
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McFaul, 73 Ohio St. 3d 185, 186 (1995), citing State ex rel. Pirman v. Money, 69 Ohio
St.3d 591, 593 (1994). “Additionally, habeas corpus lies only if the petitioner is entitled
to immediate release from confinement.” Id. at 188, citing Pewitt v. Lorain Corr. Inst., 64
Ohio St. 3d 470, 472 (1992); R.C. 2725.17.
{¶6} Here, petitioner had an adequate remedy at law in the form of a direct
appeal and/or petition for postconviction relief. Petitioner’s arguments with respect to
the jury verdict forms are thus barred by the doctrine of res judicata. See State v. Pesci,
11th Dist. Lake No. 2011-L-057, 2011-Ohio-6211, ¶25, quoting State v. Hines, 193 Ohio
App.3d 660, 2011-Ohio-3125 ¶16 (3d Dist.). As stated by the Ohio Supreme Court in
State v. Perry, 10 Ohio St. 2d 175 (1967), paragraph nine of the syllabus:
Under the doctrine of res judicata, a final judgment of conviction
bars a convicted defendant who was represented by counsel from
raising and litigating in any proceeding except an appeal from that
judgment, any defense or any claimed lack of due process that was
raised or could have been raised by the defendant at the trial,
which resulted in that judgment of conviction, or on an appeal from
that judgment. (Emphasis sic.)
{¶7} The Ohio Supreme Court in State v. Pelfrey, 112 Ohio St. 3d 422, 2007-
Ohio-256, syllabus held: “Pursuant to the clear language of R.C. 2945.75, a verdict
form signed by a jury must include either the degree of the offense of which the
defendant is convicted or a statement that an aggravating element has been found to
justify convicting a defendant of a greater degree of a criminal offense.” Any error in a
verdict form under R.C. 2945.75(A)(2) merely renders the subsequent conviction
voidable, not void. Thus, raising it as error in any proceeding except a direct appeal is
barred by the doctrine of res judicata. State v. Love, 11th Dist. Lake No. 2011-L-159,
2012-Ohio-3209, ¶20-22.
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{¶8} The Supreme Court decided Pelfrey on February 7, 2007, prior to
petitioner’s convictions at issue. Yet, despite appealing his convictions and seeking a
mandamus in the United States District Court for the Northern District of Ohio, petitioner
failed to raise this issue. Petitioner is, therefore, foreclosed from raising these issues;
petitioner could have raised these issues related to the jury verdict form on direct
appeal.
{¶9} We find no reason that petitioner is entitled to the extraordinary and
extreme form of relief requested, i.e., immediate release from the custody of the state.
Therefore, viewing the facts in the light most favorable to petitioner, we find that he has
failed to state a claim upon which relief can be granted.
{¶10} Respondent’s motion, pursuant to Civ.R. 12(B)(6), is hereby granted.
Petitioner’s petition for a writ of habeas corpus is dismissed.
DIANE V. GRENDELL, J., TIMOTHY P. CANNON, J., THOMAS R. WRIGHT, J.,
concur.
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