State ex rel. Parker v. Black , 2021 Ohio 2739 ( 2021 )


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  • [Cite as State ex rel. Parker v. Black, 
    2021-Ohio-2739
    .]
    COURT OF APPEALS
    RICHLAND COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    STATE EX REL. DONELL PARKER                            :   JUDGES:
    :
    :   Hon. Patricia A. Delaney, A.J.
    Petitioner                                            :   Hon. W. Scott Gwin, J.
    :   Hon. William B. Hoffman, J.
    -vs-                                                   :
    :   Case No. 2021 CA 0038
    :
    KENNETH BLACK, WARDEN                                  :
    :
    :
    Respondent                                           :   OPINION
    CHARACTER OF PROCEEDING:                                     Writ of Habeas Corpus
    JUDGMENT:                                                    Dismissed
    DATE OF JUDGMENT ENTRY:                                      August 9, 2021
    APPEARANCES:
    For Petitioner:                                            For Respondent:
    Donell Parker, A330-319                                    Terri L. Fosnaught
    Richland Correctional Institution                          Assistant Attorney General
    1001 Olivesburg Road                                       Criminal Justice Section
    Mansfield, Ohio 44905                                      150 East Gay Street, 16th Floor
    Columbus, Ohio 43215
    Richland County, Case No. 2021 CA 0038                                               2
    Delaney, J.
    {¶1} On May 12, 2021, Petitioner, Donell Parker, filed a Petition for Writ of
    Habeas Corpus. Mr. Parker challenges juvenile transfer proceedings that occurred in the
    Cuyahoga County Juvenile Court. He asserts the juvenile transfer order was never filed
    and docketed to institute proceedings in the Cuyahoga County Common Pleas Court and
    the juvenile transfer order did not comply with former R.C. 2151.26 and Juv.R. 30. Mr.
    Parker also claims certain indictments do not comply with Crim.R. 6(F). Therefore, he
    concludes the Cuyahoga County Common Pleas Court lacked jurisdiction and he should
    be immediately released from prison. The Ohio Attorney General, on behalf of
    Respondent, Warden Kenneth Black, moved to dismiss Mr. Parker’s petition under Civ.R.
    12(B)(6).
    FACTS AND PROCEDURAL HISTORY
    {¶2} On February 1, 1996, a juvenile court complaint charged Mr. Parker with
    delinquency in connection with the 1987 shooting death of Robert Letson. On March 21,
    1996, Mr. Parker, then 26 years old, appeared before the Cuyahoga County Juvenile
    Court for proceedings related to the state’s motion to transfer the proceedings to the
    general division. Mr. Parker waived the amenability hearing and mental and physical
    examination and on April 4, 1996, the juvenile court found probable cause and granted
    the state’s motion to transfer. [Memo. in Support of Petition, Exh. 1]
    {¶3} On April 16, 1996, the Cuyahoga County Grand Jury indicted Mr. Parker on
    one count of aggravated murder by prior calculation and design, one count of aggravated
    murder in connection with aggravated robbery, both with felony murder and firearm
    Richland County, Case No. 2021 CA 0038                                                   3
    specifications, and one count of aggravated robbery, with a firearm specification. The
    matter eventually proceeded to a jury trial. The state dismissed the charge of aggravated
    murder by prior calculation and design. The jury found Mr. Parker guilty on the remaining
    two counts. The trial court sentenced Mr. Parker to a term of thirty years to life, for
    aggravated murder, plus three years for the firearm specification, and a consecutive term
    of ten to twenty-five years, for aggravated robbery, plus three years for the firearm
    specification.
    {¶4} The Eighth District Court of Appeals affirmed Mr. Parker’s convictions on
    direct appeal. State v. Parker, 8th Dist. Cuyahoga No. 71474, 
    1998 WL 166170
     (Apr. 9,
    1998).
    ANALYSIS
    A. Civ.R. 12(B)(6) standard and habeas corpus elements
    {¶5} Respondent, Kenneth Black asks us to dismiss Mr. Parker’s petition on the
    theory of res judicata which he raises in his Motion to Dismiss under Civ.R. 12(B)(6). We
    will address this argument under Civ.R. 12 even though res judicata is usually not a proper
    basis for dismissal under this rule. See Jones v. Wainwright, 
    162 Ohio St.3d 491
    , 2020-
    Ohio-4870, 
    165 N.E.3d 1253
    , ¶ 5. The Supreme Court recently explained in Jones that it
    would address a res judicata argument under Civ.R. 12(B)(6) because the defense did
    not depend on documents outside the pleadings. 
    Id.
    {¶6} Similarly, here, Mr. Parker attached documents to his Memorandum in
    Support of his Petition for Habeas Corpus that are pertinent to Respondent Black’s res
    judicata argument. Under Civ.R. 10(C), these documents are considered a part of the
    Richland County, Case No. 2021 CA 0038                                                    4
    habeas corpus pleadings for all purposes. Therefore, we will proceed to address this
    matter as a Civ.R. 12(B)(6) dismissal motion.
    {¶7} The purpose of a Civ.R. 12(B)(6) motion is to test the sufficiency of the
    complaint. State ex rel. Boggs v. Springfield Loc. School Dist. Bd. of Edn., 
    72 Ohio St.3d 94
    , 95, 
    647 N.E.2d 788
     (1995). In order for a case to be dismissed for failure to state a
    claim, it must appear beyond doubt that, even assuming all factual allegations in the
    complaint are true, the nonmoving party can prove no set of facts that would entitle that
    party to the relief requested. Keith v. Bobby, 
    117 Ohio St.3d 470
    , 
    2008-Ohio-1443
    , 
    884 N.E.2d 1067
    , ¶ 10. If a petition does not satisfy the requirements for a properly filed
    petition for writ of habeas corpus or does not present a facially viable claim, it may be
    dismissed on motion by the respondent or sua sponte by the court. Flora v. State, 7th
    Dist. Belmont No. 04 BE 51, 
    2005-Ohio-2383
    , ¶ 5.
    {¶8} “To be entitled to a writ of habeas corpus, a petitioner must show that he is
    being unlawfully restrained of his liberty and that he is entitled to immediate release from
    prison or confinement.” State ex rel. Whitt v. Harris, 
    157 Ohio St.3d 384
    , 
    2019-Ohio-4113
    ,
    
    137 N.E.3d 71
    , ¶ 6, citing R.C. 2725.01; State ex rel. Cannon v. Mohr, 
    155 Ohio St.3d 213
    , 
    2018-Ohio-4184
    , 
    120 N.E.3d 776
    , ¶ 10. Habeas corpus is not available when an
    adequate remedy at law exists. Billiter v. Banks, 
    135 Ohio St.3d 426
    , 
    2013-Ohio-1719
    ,
    
    988 N.E.2d 556
    , ¶ 8.
    B. Petitioner’s arguments in support of habeas relief
    {¶9} First, Mr. Parker asserts the Cuyahoga County Common Pleas Court,
    General Division, never acquired subject matter jurisdiction from the juvenile court
    Richland County, Case No. 2021 CA 0038                                                     5
    because the juvenile transfer order was never filed and docketed to institute proceedings
    in the general division. Attached to Mr. Parker’s Memorandum in Support, as Exhibit 2, is
    a copy of the bindover order that indicates it was filed in the Cuyahoga County Common
    Pleas Court, Juvenile Division, on April 8, 1996. This order states, in part:
    The court, upon due consideration, grants the motion to transfer
    jurisdiction of the child’s case to the general trial division of Cuyahoga
    County Common Pleas Court for criminal prosecution of the case. It is,
    therefore, ordered, adjudged, and decreed that pursuant to Ohio Juvenile
    Rule 30 and Ohio Revised Code Section 2151.26, the matter herein is
    transfered (sic) to the general trial division of the Cuyahoga County
    Common Pleas Court for further proceedings pursuant to law.
    {¶10} Mr. Parker claims the docket for the general division does not contain the
    bindover order. He is correct because the bindover order was filed in the juvenile division,
    not the general division. The bindover order indicates such in its caption. Mr. Parker also
    maintains his case was instituted and docketed at his arraignment on April 19, 1996,
    seventeen days after the juvenile case was allegedly transferred. Again, based on the
    bindover order, filed on April 8, 1996, in the juvenile division, his case was instituted in
    the general division before his first appearance on April 19, 1996. Because the bindover
    order was properly filed and docketed the general division acquired jurisdiction from the
    juvenile division and therefore, had jurisdiction to address the charges against Mr. Parker.
    {¶11} Second, Mr. Parker contends the bindover order did not comply with former
    R.C. 2151.26 and Juv.R. 30. He cites State v. Newton, 6th Dist. Fulton No. C.A. No. F-
    82-17, 
    1983 WL 6836
     (June 10, 1983), for the proposition that a juvenile court must state
    Richland County, Case No. 2021 CA 0038                                                     6
    with reasonable specificity the factual basis underlying its order to transfer a juvenile to
    the common pleas court for prosecution as an adult. Id. at *4.
    {¶12} The statute and juvenile rule at issue require the juvenile court to consider
    certain factors in making a bindover determination. Mr. Parker asserts the juvenile court
    failed to comply with the statute and rule for the following reasons: (1) a hearing never
    occurred on April 2, 1996; (2) the March 21, 1996 hearing transcript contains no mention
    of waiver of physical and mental examination and amenability; (3) the March 21, 1996
    hearing contains no appointment of counsel; and (4) he did not receive appointed counsel
    until April 19, 1996, following his transfer to the general division.
    {¶13} The exhibits attached to Mr. Parker’s Memorandum in Support do not bear
    out his arguments. For example, Exhibit 2, the bindover order specifically indicates the
    matter was before the juvenile court for a hearing on April 2, 1996. The lack of a transcript
    does not prove that a hearing did not occur. We also note the bindover order states:
    “Subject, through counsel, waives amendability (sic) phase of this hearing and a mental
    and physical examination of said subject made by a duly qualified person(s).” Thus, Mr.
    Parker not only appears to have had counsel at the bindover hearing, but he also waived,
    through counsel, physical and mental examinations and the amenability phase of the
    hearing.
    {¶14} Third, Mr. Parker contends Crim.R. 6(F) provides a strict procedure for filing
    and returning an indictment and Counts Two and Three were never “returned.” The rule
    requires the indictment be returned by the foreperson or deputy foreperson “to a judge of
    the court of common pleas and filed with the clerk who shall endorse thereon the date of
    filing and enter each case upon the appearance and trial dockets.”
    Richland County, Case No. 2021 CA 0038                                                    7
    {¶15} Exhibit 6, attached to Mr. Parker’s Memorandum in Support, contains three
    True Bill Indictments filed with the Clerk of Courts on April 16, 1996. The indictments were
    Count One for aggravated murder, R.C. 2903.01; Count Two for aggravated murder, R.C.
    2903.01; and Count Three for aggravated robbery, R.C. 2911.01. A time stamp does not
    appear on Counts Two and Three; however, it appears the indictments were filed as one
    document, with Count One being the first page containing a time stamp from the Clerk of
    Courts. Further, the printout of the Common Pleas Court’s docket, attached as Exhibit 3
    to Mr. Parker’s Memorandum in Support, indicates the three pending charges on page 1.
    {¶16} Our review of the exhibits submitted by Mr. Parker establishes his
    arguments lack merit and therefore, he is not entitled to habeas relief. Further, all of the
    arguments raised by Mr. Parker in his Petition for Habeas Corpus concern arguments he
    could have pursued in his direct appeal. As long as a petitioner had adequate legal
    remedies for the issues of which he complains by either direct appeal or post-conviction
    relief, the issues may not be addressed in habeas corpus. Cornell v. Schotten, 
    69 Ohio St.3d 466
    , 467, 
    633 N.E.2d 1111
     (1994). Rather, res judicata applies barring a convicted
    defendant from litigating, in a collateral proceeding, any claim that either was raised or
    could have been raised at his trial or in his direct appeal. State v. Perry, 
    10 Ohio St.2d 175
    , 180, 
    226 N.E.2d 104
     (1967); State v. Szefcyk, 
    77 Ohio St.3d 93
    , 96, 
    1996-Ohio-337
    ,
    
    671 N.E.2d 233
    .
    {¶17} The claims Mr. Parker raises here are claims that could have been
    addressed in his direct appeal. See Moore v. Wainwright, 
    160 Ohio St.3d 103
    , 2020-Ohio-
    846, 
    154 N.E.3d 22
    , ¶ 7 (Claims challenging the validity of the bindover proceedings could
    be raised on direct review.); State ex rel. Arroyo v. Sloan, 
    142 Ohio St.3d 541
    , 2015-Ohio-
    Richland County, Case No. 2021 CA 0038                                             8
    2081, 
    33 N.E.3d 56
    , ¶ 5, quoting McGee v. Sheldon, 
    132 Ohio St.3d 89
    , 
    2012-Ohio-2217
    ,
    
    969 N.E.2d 262
    , ¶ 1 (“Habeas corpus is not available to challenge the validity of a
    charging instrument.”).
    CONCLUSION
    For the foregoing reasons, we grant Respondent Black’s Motion to Dismiss.
    MOTION GRANTED.
    CAUSE DISMISSED.
    COSTS TO PETITIONER.
    IT IS SO ORDERED.
    By: Delaney, J.,
    Gwin, J. and
    Hoffman, J., concur.