State v. Harpster ( 2012 )

[Cite as State v. Harpster, 2012-Ohio-5967.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P.J.
Respondent Hon. William B. Hoffman, J.
Hon. Sheila G. Farmer, J.
-vs-
Case No. 12-COA-29
LARRY HARPSTER
Petitioner OPINION
CHARACTER OF PROCEEDING: Writ of Habeas Corpus
JUDGMENT: Denied
DATE OF JUDGMENT ENTRY: December 18, 2012
APPEARANCES:
For Respondent For Petitioner
NO APPEARANCE LARRY HARPSTER, PRO SE
190 U.S. 250 E
Polk, OH 44866
Ashland County, Case No. 12-COA-29 2
Hoffman, J.
{¶1} Petitioner, Larry Harpster, has filed a petition for writ of habeas corpus.
Petitioner was involved in a property dispute with a neighbor over ownership of an alley.
The issue was settled by the Court of Common Pleas wherein the trial court held each
neighbor received one half of the alley. It appears the property was later foreclosed
upon and ownership of Petitioner’s portion transferred to the neighbor. Thereafter, an
altercation occurred between Petitioner and his neighbor resulting in various criminal
charges and subsequent convictions for criminal trespass, resisting arrest, and assault.1
{¶2} Although the petition is difficult to understand, the Court believes
Petitioner is requesting a writ issue requiring he be provided with copies of documents
related to an appeal of his criminal convictions. He requests the documents be
provided free of charge due to his alleged indigency. Further, he requests the writ issue
to vacate Petitioner’s criminal convictions, and the property be returned to Petitioner.
{¶3} Revised Code § 2725.01 provides, “Whoever is unlawfully restrained of
his liberty, or entitled to the custody of another, of which custody such person is
unlawfully deprived, may prosecute a writ of habeas corpus, to inquire into the cause of
such imprisonment, restraint, or deprivation.”
{¶4} Revised Code § 2725.04 states,
Application for the writ of habeas corpus shall be by petition, signed
and verified either by the party for whose relief it is intended, or by some
person for him, and shall specify:
1
The facts cited herein were taken from our opinion in Ashland Case Number
08COA013.
Ashland County, Case No. 12-COA-29 3
(A) That the person in whose behalf the application is made is
imprisoned, or restrained of his liberty;
(B) The officer, or name of the person by whom the prisoner is so
confined or restrained; or, if both are unknown or uncertain, such officer or
person may be described by an assumed appellation and the person who
is served with the writ is deemed the person intended;
(C) The place where the prisoner is so imprisoned or restrained, if
known;
(D) A copy of the commitment or cause of detention of such person
shall be exhibited, if it can be procured without impairing the efficiency of
the remedy; or, if the imprisonment or detention is without legal authority,
such fact must appear.
{¶5} First we find Petitioner has failed to include an affidavit of verity as
required by R.C. 2725.04. Also, there is no allegation in the Petition of unlawful custody
which is what a petition for writ of habeas corpus is designed to remedy. Further,
Petitioner has not named a proper respondent who is alleged to have unlawful custody
of Petitioner. Petitioner has named the State of Ohio rather than a specific person
alleged to have custody of Petitioner.
{¶6} A writ of habeas corpus is an extraordinary remedy available only in cases
“where there is an unlawful restraint of a person's liberty and no adequate remedy at
law.” Pratts v. Hurley, 102 Ohio St.3d 81, 2004–Ohio–1980, 806 N.E.2d 992, ¶ 8. “If an
issue raised in a petition for a writ of habeas corpus could have been raised on direct
Ashland County, Case No. 12-COA-29 4
appeal or in a petition for post-conviction relief, the petition for a writ of habeas corpus
will be denied.” Garrett v. Wilson, 5th Dist. No. 07–CA–60, 2007–Ohio–4853, ¶ 9.
{¶7} Petitioner’s first request for relief is for records or documents free of
charge. A public records request is not an appropriate subject of a petition for writ of
habeas corpus. R.C, 149.43. The second request for relief is for Petitioner’s
convictions to be vacated. Petitioner has or had an adequate remedy at law to
challenge his convictions by way of an appeal or a petition for post conviction relief.
Finally, Petitioner has requested that land be returned to him. Again, this is not an
appropriate request pursuant to a writ of habeas corpus. Petitioner has or had an
adequate remedy at law by way of an appeal of the trial court’s determination to divide
the alley.
{¶8} For these reasons, a writ of habeas corpus does not lie. The requested
writ is denied.
By: Hoffman, J.
Delaney, P.J. and
Farmer, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
Ashland County, Case No. 12-COA-29 5
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Respondent :
:
-vs- : JUDGMENT ENTRY
:
LARRY HARPSTER :
:
Petitioner : Case No. 12-COA-29
For the reasons stated in our accompanying Opinion, the writ is denied. Costs
taxed to Petitioner.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER