Westerfield v. Bracy , 2023 Ohio 499 ( 2023 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Westerfield v. Bracy, Slip Opinion No. 2023-Ohio-499.]
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2023-OHIO-499WESTERFIELD, APPELLANT, v. BRACY, WARDEN, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Westerfield v. Bracy, Slip Opinion No. 2023-Ohio-499.]
Habeas corpus—Inmate failed to comply with R.C. 2969.25(A)—Court of appeals’
judgment dismissing petition affirmed.
(No. 2022-0814—Submitted January 10, 2023—Decided February 23, 2023.)
APPEAL from the Court of Appeals for Trumbull County, No. 2022-T-0012,
2022-Ohio-1904.
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Per Curiam.
{¶ 1} Appellant, Jason L. Westerfield, is imprisoned at Trumbull
Correctional Institution, where appellee, Charmaine Bracy, is the warden.
Westerfield appeals the Eleventh District Court of Appeals’ dismissal of his petition
for a writ of habeas corpus. Because Westerfield failed to comply with the
mandatory requirements of R.C. 2969.25(A), we affirm.
SUPREME COURT OF OHIO
FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} Westerfield was indicted in July 2017 for felonious assault and
aggravated robbery (Crawford C.P. case No. 17-CR-0158), and in September 2017
for aggravated burglary (case No. 17-CR-0235). The indictments were
consolidated for trial. A jury acquitted Westerfield of all offenses charged in the
indictments but found him guilty of the lesser included offense of burglary in case
No. 17-CR-0235. The trial court sentenced Westerfield to seven years in prison.
The Third District Court of Appeals affirmed the conviction. State v. Westerfield,
3d Dist. Crawford No. 3-17-16, 2018-Ohio-2139.
{¶ 3} Westerfield filed a petition for a writ of habeas corpus in the Eleventh
District Court of Appeals in February 2022. He sought immediate release from
prison on the ground that “there is no record” of the jury’s finding him guilty of
burglary in case No. 17-CR-0235. According to Westerfield, the verdict forms
from his trial are unsigned and do not have the word “guilty” circled on them.
Westerfield therefore contends that his burglary conviction is void and that he is
entitled to immediate release.
{¶ 4} Bracy filed a motion to dismiss the action under Civ.R. 12(B)(6),
arguing that (1) Westerfield’s R.C. 2969.25(A) affidavit accompanying his petition
is deficient and (2) his claims are not cognizable in habeas corpus. Westerfield
opposed the motion. The court of appeals granted Bracy’s motion to dismiss,
finding that Westerfield could have raised the issue of the jury verdict’s validity on
direct appeal. Because of that determination, the court of appeals found the issue
of Westerfield’s R.C. 2969.25(A) affidavit to be moot.
{¶ 5} Westerfield appealed to this court as of right.
ANALYSIS
{¶ 6} An inmate who files a habeas corpus petition in the court of appeals
must attach an affidavit listing all federal and state civil actions and appeals of civil
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January Term, 2023
actions he has filed in the previous five years. See R.C. 2969.25(A); State ex rel.
Dixon v. Bowerman, 156 Ohio St.3d 317, 2019-Ohio-716, 126 N.E.3d 1086, ¶ 4.
R.C. 2969.25(A) requires “strict compliance,” and noncompliance with its
requirements “is fatal and provides a sufficient basis for dismissing a petition.”
State ex rel. Steele v. Foley, 164 Ohio St.3d 540, 2021-Ohio-2073, 173 N.E.3d
1209, ¶ 7. The affidavit must describe the nature of the civil action or appeal and
include the case name, case number, and the court in which the case or appeal was
brought, the name of each party, and the outcome of the case. R.C. 2969.25(A)(1)
through (4).
{¶ 7} The court of appeals did not reach the issue of Westerfield’s
compliance with R.C. 2969.25(A), finding that “[its] substantive ruling regarding
[Bracy’s] motion to dismiss render[ed] this [alleged] deficiency moot.” 2022-
Ohio-1904, ¶ 10. On appeal, Bracy reprises the R.C. 2969.25(A) argument as a
basis for affirming the court of appeals’ dismissal of Westerfield’s habeas petition.
Because the court of appeals did not reach the issue, Westerfield argues that we
should not reach it in this appeal. But Bracy may properly assert grounds not ruled
on by the court of appeals as an alternative basis for affirmance. See Couchot v.
State Lottery Comm., 74 Ohio St.3d 417, 423, 659 N.E.2d 1225 (1996). Therefore,
we consider whether Westerfield’s R.C. 2969.25(A) affidavit is deficient.
{¶ 8} Westerfield listed two civil actions in his R.C. 2969.25(A) affidavit,
which he described as follows:
On November 12, 2018, I filed a Petition for Writ of Habeas
Corpus to the federal court in Ohio. The case number is 1:19 CV
1733.
On July 14, 2020, I filed a civil claim in the Court of Claims
of Ohio, Case No. 2020-00036AD.
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SUPREME COURT OF OHIO
This disclosure is deficient because Westerfield did not name the parties or reveal
the outcomes of the cases. See R.C. 2969.25(A)(3) and (4). Thus, Westerfield’s
affidavit does not strictly comply with the statute.
{¶ 9} Moreover, by Westerfield’s own admission, he did not list two other
federal habeas corpus actions he had filed within the past five years. After Bracy
noted this deficiency in her motion to dismiss, Westerfield asked the court to apply
the rule of lenity to the issue of noncompliance, explaining that he had voluntarily
dismissed the omitted cases and did not realize he still needed to list them on his
R.C. 2969.25(A) affidavit. But R.C. 2969.25(A) requires “strict compliance,”
Steele, 164 Ohio St.3d 540, 2021-Ohio-2073, 173 N.E.3d 1209, at ¶ 7, and the
statute contains no exception for cases that an inmate has voluntarily dismissed.
An affidavit that lists some, but not all, prior actions does not comply with R.C.
2969.25(A). State ex rel. Swanson v. Ohio Dept. of Rehab. & Corr., 156 Ohio St.3d
408, 2019-Ohio-1271, 128 N.E.3d 193, ¶ 6.
{¶ 10} For these reasons, Westerfield’s R.C. 2969.25(A) affidavit is
deficient, making his habeas petition subject to dismissal. Accordingly, we affirm
the Eleventh District Court of Appeals’ judgment on this basis and need not reach
the issue whether Westerfield’s petition states a viable claim for relief in habeas
corpus.
Judgment affirmed.
KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, BRUNNER, and DETERS,
JJ., concur.
STEWART, J., concurs in judgment only.
_________________
Jason L. Westerfield, pro se.
Dave Yost, Attorney General, and Jerri L. Fosnaught, Assistant Attorney
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January Term, 2023
General, for appellee.
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