State ex rel. Harris v. Turner (Slip Opinion) , 2020 Ohio 2901 ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Harris v. Turner, Slip Opinion No. 2020-Ohio-2901.]
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
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2020-OHIO-2901
THE STATE EX REL. HARRIS, APPELLANT, v. T URNER, WARDEN, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Harris v. Turner, Slip Opinion No.
2020-Ohio-2901.]
Habeas corpus—Inmate’s claims are not cognizable in habeas corpus—Court of
appeals’ dismissal of complaint affirmed.
(No. 2019-1228—Submitted February 25, 2020—Decided May 13, 2020.)
APPEAL from the Court of Appeals for Marion County, No. 9-19-25.
_______________________
Per Curiam.
{¶ 1} Appellant, Lionel Harris, appeals the judgment of the Third District
Court of Appeals dismissing his complaint for a writ of habeas corpus against
appellee, Neil Turner, warden of the North Central Correctional Complex. We
affirm.
SUPREME COURT OF OHIO
Background
{¶ 2} In 1992, a Hamilton County jury found Harris guilty of aggravated
murder and the trial court sentenced him to life in prison, with eligibility for parole
in 20 years. The Adult Parole Authority (“APA”) denied Harris parole in 2005,
2011, and 2018.
{¶ 3} In May 2019, Harris filed in the Third District a complaint for a writ
of habeas corpus seeking immediate release from prison. In August 2019, the Third
District dismissed Harris’s complaint for failing to state a cognizable claim in
habeas corpus.
{¶ 4} Harris appealed, asserting six propositions of law. He also filed two
motions for judicial notice.
Analysis
{¶ 5} “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.” State ex rel. Cannon v. Mohr, 155
Ohio St. 3d 213, 2018-Ohio-4184, 120 N.E.3d 776, ¶ 10. “In general, habeas relief
is available when the sentencing court lacked subject-matter jurisdiction.” Smith v.
May, ___ Ohio St.3d __, 2020-Ohio-61, ___ N.E.3d ___, ¶ 14.
Proposition of Law Nos. 1 and 2
{¶ 6} In support of his first and second propositions of law, Harris asserts
that the Third District erred in dismissing his complaint because his sentence is
void, the APA lacked jurisdiction to extend his void sentence, and challenging a
void sentence is cognizable in habeas corpus. According to Harris, his sentence is
void because the trial court failed to impose a statutorily mandated term. In 1992,
R.C. 2929.03(A) required a trial court to impose a life sentence “with parole
eligibility after serving twenty years” for an aggravated-murder conviction.
Am.Sub.S.B. No. 1, 139 Ohio Laws, Part I, 1, 9. Harris’s sentencing entry,
however, states that he was sentenced to life imprisonment with “[e]ligibility for
2
January Term, 2020
parole in twenty (20) years.” (Emphasis added.) Harris argues that there is a
difference between the words “after” and “in” and that under the terms of his
sentence, he was eligible for parole within 20 years of serving his life sentence,
rather than after serving 20 years.
{¶ 7} We find no difference between the sentence required by the statute
and the sentence Harris received; therefore, as the Third District concluded, the
alleged discrepancy between the trial court’s use of “in” and the statutory reference
to “after” does not render Harris’s sentence void. Regardless, in general,
“ ‘sentencing errors are not jurisdictional and thus are not cognizable in habeas
corpus.’ ” Dunkle v. Dept. of Rehab. & Corr., 148 Ohio St. 3d 621, 2017-Ohio-551,
71 N.E.3d 1098, ¶ 8, citing State ex rel. O’Neal v. Bunting, 140 Ohio St. 3d 339,
2014-Ohio-4037, 18 N.E.3d 430, ¶ 13. And even if Harris could establish that his
sentence is contrary to law, his remedy would be correction of his sentencing entry
rather than his immediate release from prison, especially considering that his
maximum sentence is life imprisonment.
Proposition of Law No. 3
{¶ 8} As Harris’s third proposition of law, he argues that the Third District
misconstrued one of the allegations in his complaint and therefore applied the
wrong standard of review in dismissing it. Specifically, in his complaint, Harris
alleged that the judgment of conviction in his case is not a final, appealable order
pursuant to Crim.R. 32(C). The Third District concluded that this claim “is not
properly raised in an action for [a] writ of habeas corpus.” On appeal, Harris asserts
that he never alleged that the trial court’s failure to issue a final, appealable order
entitled him to habeas relief. Rather, he claims that he raised this issue to establish
that he lacked an adequate remedy at law for the other claims in his complaint.
{¶ 9} Even if Harris is correct—and he did not raise the lack of a final,
appealable order as an independent ground for habeas relief—the fact that he raised
one fewer basis for relief in his complaint than that identified in the Third District’s
3
SUPREME COURT OF OHIO
decision does not undermine the appellate court’s conclusion that he failed to state
a cognizable claim in habeas corpus.
Proposition of Law No. 4
{¶ 10} As his fourth proposition of law, Harris claims that the Third District
lacked jurisdiction to dismiss his complaint because the court never served it on
Turner and Turner never entered an appearance. “But R.C. Chapter 2725 prescribes
a summary procedure for instituting a habeas corpus action, which does not require
service of the petition prior to dismissal if the petition does not contain a facially
valid claim.” State ex rel. Carrion v. Ohio Adult Parole Auth., 80 Ohio St. 3d 637,
638, 687 N.E.2d 759 (1998). As noted above, the Third District dismissed Harris’s
complaint because on its face, it failed to state a cognizable claim in habeas corpus.
Proposition of Law Nos. 5 and 6
{¶ 11} As his fifth and sixth propositions of law, Harris alleges that the
Third District erred in summarily dismissing his complaint because he had included
uncontested evidence demonstrating that (1) Judge Donald L. Schott, a retired judge
who presided over Harris’s 1992 trial, did not have a certificate of assignment and
(2) at the time of Harris’s trial, Judge Schott’s judicial commission included forged
signatures and was therefore invalid. According to Harris, absent a certificate of
assignment or valid commission, Judge Schott was not an actual judge and lacked
jurisdiction to render judgment.
{¶ 12} With his complaint, Harris filed a letter from the Hamilton County
Clerk of Courts confirming that Harris’s trial-court record does not contain an entry
assigning Judge Schott to Harris’s case. He also filed a report from a purported
handwriting expert who compared the signature of the former governor on a 1982
session law to that governor’s signature on Judge Schott’s 1982 commission. The
expert concluded that the signatures on the two documents were written by two
different hands. The expert did not conclude, however, that the governor’s
signature on Judge Schott’s commission was forged. Harris appears to have come
4
January Term, 2020
to that conclusion based on his own speculation. “Unsupported conclusions
contained in a habeas corpus petition are not considered admitted and are
insufficient to withstand dismissal.” Chari v. Vore, 91 Ohio St. 3d 323, 328, 744
N.E.2d 763 (2001).
{¶ 13} Moreover, “[l]ike other extraordinary-writ actions, habeas corpus is
not available when there is an adequate remedy in the ordinary course of law.” In
re Complaint for Writ of Habeas Corpus for Goeller, 103 Ohio St. 3d 427, 2004-
Ohio-5579, 816 N.E.2d 594, ¶ 6. “[A] claim of improper assignment of a judge can
generally be adequately raised by way of appeal.” State ex rel. Key v. Spicer, 91
Ohio St. 3d 469, 470, 746 N.E.2d 1119 (2001). There is an exception to the
adequate-remedy requirement: “ ‘when a court’s judgment is void because it lacked
jurisdiction, habeas is still an appropriate remedy despite the availability of
appeal.’ ” Leyman v. Bradshaw, 146 Ohio St. 3d 522, 2016-Ohio-1093, 59 N.E.3d
1236, ¶ 9, quoting Gaskins v. Shiplevy, 74 Ohio St. 3d 149, 151, 656 N.E.2d 1282
(1995), overruled on other grounds, Smith, __ Ohio St.3d __, 2020-Ohio-61, __
N.E.3d __, at ¶ 29. But even if Judge Schott were somehow improperly assigned,
“[i]n a court that possesses subject-matter jurisdiction, procedural irregularities in
the transfer of a case to a visiting judge affect the court’s jurisdiction over the
particular case and render the judgment voidable, not void.” In re J.J., 111 Ohio
St.3d 205, 2006-Ohio-5484, 855 N.E.2d 851, paragraph one of the syllabus; see
also State v. Baumgartner, 6th Dist. Ottawa No. OT-03-013, 2004-Ohio-3907, ¶ 11
(“even if the certificate of assignment was entirely absent from a case record, it
would not void the jurisdiction of the court or [the visiting judge’s] authority to
issue judgments and orders”).
{¶ 14} Harris has not alleged facts sufficient to establish that the trial court
lacked subject-matter jurisdiction. And because Harris had an adequate remedy to
challenge the assignment of Judge Schott, the Third District correctly rejected this
claim.
5
SUPREME COURT OF OHIO
{¶ 15} Having rejected Harris’s propositions of law, we affirm the
judgment of the court of appeals.
Motions for Judicial Notice
{¶ 16} In December 2019, Harris filed a motion requesting that this court
take judicial notice under Evid.R. 201(D) of the transcript of his 1992 sentencing.
“Under Evid.R. 201, a court may take judicial notice of adjudicative facts, ‘i.e., the
facts of the case.’ ” State ex rel. Cincinnati Enquirer v. Deters, 148 Ohio St. 3d
595, 2016-Ohio-8195, 71 N.E.3d 1076, ¶ 16. Evid.R. 201 is not a mechanism to
add to the record a transcript that an appellant failed to submit in the court below.
A reviewing court generally may not add matter to the record before it and then
decide the appeal on the basis of the new matter. See State v. Ishmail, 54 Ohio
St.2d 402, 377 N.E.2d 500 (1978), paragraph one of the syllabus. Harris’s request
is therefore denied.
{¶ 17} In January 2020, Harris filed a second motion for judicial notice,
requesting that this court take judicial notice of (1) the “demonstrably false”
assertions in Turner’s merit brief, (2) the Third District’s alleged failure to resolve
all the claims asserted in his habeas complaint, and (3) prison officials’ alleged
retaliation against him. But “[t]he only facts subject to judicial notice are those that
are ‘not subject to reasonable dispute.’ ” State ex rel. Arnold v. Gallagher, 153
Ohio St. 3d 234, 2018-Ohio-2628, 103 N.E.3d 818, ¶ 31, quoting Evid.R. 201(B).
Harris requests us to take judicial notice of several disputed facts and legal
conclusions. We therefore also deny his second motion.
Judgment affirmed.
O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
_________________
Lionel Harris, pro se.
6
January Term, 2020
Dave Yost, Attorney General, and Jerri L. Fosnaught, Assistant Attorney
General, for appellee.
_________________
7