DeVore v. Black (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
DeVore v. Black, Slip Opinion No. 2021-Ohio-3153.]
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SLIP OPINION NO. 2021-OHIO-3153DEVORE, APPELLANT, v. BLACK, WARDEN, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as DeVore v. Black, Slip Opinion No. 2021-Ohio-3153.]
Habeas Corpus—Inmate’s claim that he was convicted of an uncharged offense
was an attack on the sufficiency of the indictment that is not cognizable in
habeas corpus—Court of appeals’ judgment dismissing complaint affirmed.
(No. 2021-0199—Submitted May 11, 2021—Decided September 15, 2021.)
APPEAL from the Court of Appeals for Richland County, No. 2020 CA 0074,
2021-Ohio-198.
__________________
Per Curiam.
{¶ 1} Appellant, Adam M. DeVore, is incarcerated in the Richland
Correctional Institution, where appellee, Kenneth Black, is the warden. DeVore
appeals the Fifth District Court of Appeals’ judgment dismissing his habeas corpus
complaint against Black for failure to comply with R.C. 2969.25(A) and failure to
state a cognizable claim for relief in habeas corpus. We affirm.
SUPREME COURT OF OHIO
I. Background
{¶ 2} In February 2018, DeVore was convicted in the Ashland County
Common Pleas Court of abduction and domestic violence and sentenced to
consecutive 36-month prison terms. The Fifth District affirmed his convictions.
See State v. DeVore, 5th Dist. Ashland No. 18-COA-011, 2018-Ohio-4189, ¶ 108.
{¶ 3} Following the affirmance of his convictions, DeVore filed an
application to reopen his appeal under App.R. 26(B). One of DeVore’s proposed
assignments of error in the application was that abduction and domestic violence
are allied offenses of similar import and, therefore, he should not have been
sentenced for both. See R.C. 2941.25(A). The court of appeals denied DeVore’s
application, determining that DeVore “committed separate and distinct crimes and
the offenses were separated by time and occurred in different locations.” The court
of appeals therefore held that DeVore’s appellate counsel was not ineffective for
failing to raise an allied-offenses argument. See R.C. 2941.25(B) (a defendant may
be convicted of offenses of the same or similar kind if they were committed
“separately or with a separate animus as to each”).
{¶ 4} On November 30, 2020, DeVore filed a complaint for a writ of habeas
corpus in the Fifth District, requesting his immediate release from prison. Citing
the “separated by time and occurred in different locations” language included in the
court of appeals’ judgment denying his App.R. 26(B) application for reopening,
DeVore alleged that his conviction for domestic violence was necessarily for
conduct that occurred at a time and place different from that alleged in the
indictment for the offense. DeVore accordingly argued that his domestic-violence
conviction was void and that he is entitled to immediate release because he had
already served the full 36-month prison term relating to his abduction conviction.
{¶ 5} Black filed a motion to dismiss DeVore’s complaint under Civ.R.
12(B)(6). The court of appeals granted Black’s motion and dismissed the
complaint. 2021-Ohio-198, ¶ 12. The court of appeals held that DeVore had failed
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to comply with R.C. 2969.25(A) and also that his complaint failed to state a
cognizable claim for relief in habeas corpus. Id. at ¶ 4-6, 8-10.
{¶ 6} DeVore timely appealed to this court as of right.
II. Analysis
{¶ 7} This court reviews the dismissal of a habeas corpus complaint under
Civ.R. 12(B)(6) de novo. State ex rel. Norris v. Wainwright, 158 Ohio St.3d 20,
2019-Ohio-4138, 139 N.E.3d 867, ¶ 5. Generally, a writ of habeas corpus is
available only when the petitioner’s maximum sentence has expired and he is being
held unlawfully, Leyman v. Bradshaw, 146 Ohio St.3d 522, 2016-Ohio-1093, 59
N.E.3d 1236, ¶ 8, or when the sentencing court patently and unambiguously lacked
subject-matter jurisdiction, Stever v. Wainwright, 160 Ohio St.3d 139, 2020-Ohio-
1452, 154 N.E.3d 55, ¶ 8. For alleged nonjurisdictional errors, habeas corpus is not
available when the petitioner has or had an adequate remedy in the ordinary course
of the law. Kneuss v. Sloan, 146 Ohio St.3d 248, 2016-Ohio-3310, 54 N.E.3d 1242,
¶ 6.
{¶ 8} The court of appeals was correct to dismiss DeVore’s habeas
complaint because it failed to state a valid claim for relief. DeVore was convicted
of abduction and domestic violence, which were both alleged to have occurred
between January 7 and 9, 2017. In his App.R. 26(B) application, DeVore argued
that his appellate counsel rendered ineffective assistance by not arguing that those
two convictions should have been merged for sentencing purposes. In its judgment
denying DeVore’s App.R. 26(B) application, the court of appeals referred to
evidence of a domestic-violence incident that, DeVore contends, was not the
domestic-violence incident charged in the indictment. DeVore therefore claims
that he was convicted of an uncharged offense and is consequently entitled to relief
in habeas corpus.
{¶ 9} The court of appeals properly rejected this argument. DeVore’s
theory that he was convicted of an uncharged offense does not present a
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jurisdictional defect that may be challenged in an extraordinary action. See Gunnell
v. Lazaroff, 90 Ohio St.3d 76, 734 N.E.2d 829 (2000). Such an argument is an
attack upon the sufficiency of the indictment, which is not cognizable in habeas
corpus. Id. at 76-77. Moreover, to the extent that there was any potential trial error
or sentencing error regarding DeVore’s domestic-violence conviction, DeVore had
an adequate remedy to address it by way of appeal.
{¶ 10} For the foregoing reasons, the court of appeals properly dismissed
DeVore’s habeas corpus complaint.
Judgment affirmed.
O’CONNOR, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, and
BRUNNER, JJ., concur.
KENNEDY, J., concurs in judgment only, with an opinion.
_________________
KENNEDY, J., concurring in judgment only.
{¶ 11} Because an application to reopen a direct appeal under App.R. 26(B)
is not a civil action, the Fifth District Court of Appeals erred in dismissing appellant
Adam M. DeVore’s habeas corpus complaint for failure to comply with R.C.
2969.25(A). See 2021-Ohio-198, ¶ 6, 12. R.C. 2969.25(A), which requires an
inmate to file an affidavit of prior civil actions when commencing a civil action
against the state, did not require DeVore to list in the affidavit a prior appeal of the
denial of his application to reopen. Contrary to the majority’s position today,
whether an inmate has complied with R.C. 2969.25 is a threshold question that the
court must answer before considering the merits of the inmate’s claim, and I would
not let the court of appeals’ error go uncorrected. Nonetheless, DeVore failed to
state a claim for relief that is cognizable in habeas corpus, and I therefore concur in
the majority’s judgment affirming the dismissal of his complaint.
{¶ 12} R.C. 2969.25(A) requires an inmate who “commences a civil action
or appeal against a government entity or employee” to “file with the court an
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affidavit that contains a description of each civil action or appeal of a civil action
that the inmate has filed in the previous five years in any state or federal court.”
R.C. 2969.21(B)(1)(a) defines the phrase “civil action or appeal against a
government entity or employee” to include a “civil action that an inmate
commences against the state, a political subdivision, or an employee of the state or
a political subdivision in a court of common pleas, court of appeals, county court,
or municipal court.” The General Assembly expressly excluded actions and
appeals filed in this court from the definition of “civil action or appeal against a
government entity or employee.” R.C. 2969.21(B)(2).
{¶ 13} The dismissal of an action for failure to state a claim upon which
relief can be granted is a ruling on the merits of the case. State ex rel. Arcadia
Acres v. Ohio Dept. of Job & Family Servs., 123 Ohio St.3d 54, 2009-Ohio-4176,
914 N.E.2d 170, ¶ 15. In contrast, a court’s review of an inmate’s affidavit of prior
civil actions does not involve the merits of the action but only whether the inmate
has complied with “the mandatory filing requirements of R.C. 2969.25,” State v.
Henton, 146 Ohio St.3d 9, 2016-Ohio-1518, 50 N.E.3d 553, ¶ 5. When an inmate
has not satisfied those filing requirements, “the merits of any underlying claims
* * * are not properly before [the] court,” Rogers v. Eppinger, 154 Ohio St.3d 189,
2018-Ohio-4058, 112 N.E.3d 902, ¶ 11, and the “ ‘failure to comply with [R.C.
2969.25] requires dismissal of [the] inmate’s complaint,’ ” id. at ¶ 9, quoting State
ex rel. Hall v. Mohr, 140 Ohio St.3d 297, 2014-Ohio-3735, 17 N.E.3d 581, ¶ 4.
{¶ 14} Whether an inmate has complied with R.C. 2969.25, then, is a
threshold question that may not be sidestepped to reach the merits of the case. Nor
may it be simply ignored, as the majority does today. For this reason, this court
should review the court of appeals’ determination that DeVore’s affidavit of prior
actions is insufficient.
{¶ 15} In this case, the court of appeals looked at this court’s docket and
discovered that DeVore had previously appealed to this court the denial of his
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App.R. 26(B) application to reopen his direct appeal. The appellate court noted our
caselaw holding that an application to reopen a direct appeal is civil in nature, and
it determined that the dismissal of DeVore’s habeas complaint was justified because
“[the] appeal to the Ohio Supreme Court should have also been included in Mr.
DeVore’s Affidavit of Prior Action.” 2021-Ohio-198 at ¶ 6. In the alternative, the
court concluded that the dismissal of the complaint was appropriate also because
DeVore had failed to state a claim cognizable in habeas corpus. Id. at ¶ 10, 12.
{¶ 16} In concluding that an application to reopen filed in an appellate court
is a civil action, the Fifth District reasoned that because an application to reopen
affords a civil remedy, it is a “civil action” for the purposes of R.C. 2969.25(A)’s
affidavit requirement. Id. at ¶ 5-6. The court of appeals assumed that if a matter,
remedy, or proceeding is civil in nature, then it must be a “civil action.” This hasty
generalization—that all proceedings that are civil in nature are civil actions—
caused the court of appeals to jump to the conclusion that a person filing an App.R.
26(B) application to reopen commences a civil action for purposes of R.C.
2969.25(A), without ever considering what the term “civil action” actually means.
{¶ 17} This court, however, has long distinguished between civil actions
and other civil proceedings. As we wrote in In re Wyckoff’s Estate:
We think it can accurately be said that the term, “civil
action,” as used in our statutes embraces those actions which, prior
to the adoption of the Code of Civil Procedure in 1853 abolishing
the distinction between actions at law and suits in equity, were
denoted as actions at law or suits in equity; and that other court
proceedings of a civil nature come, generally at least, within the
classification of special proceedings.
166 Ohio St. 354, 357, 142 N.E.2d 660 (1957).
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{¶ 18} We have adhered to that understanding in more recent decisions.
E.g., Polikoff v. Adam, 67 Ohio St.3d 100, 107, 616 N.E.2d 213 (1993) (“we ask
first whether shareholder derivative suits were recognized in equity, at common
law, or established by special legislation” in determining whether they are civil
actions or special proceedings); Stevens v. Ackman, 91 Ohio St.3d 182, 186-189,
743 N.E.2d 901 (2001) (following Wyckoff’s Estate and Polikoff). Ohio’s statutory
law also recognizes this distinction between “actions” and special proceedings (and
provisional remedies). See R.C. 2505.02(A) and (B).
{¶ 19} An “action,” we have said, is a court proceeding “ ‘ “by which a
party prosecutes another for the enforcement or protection of a right, the redress or
prevention of a wrong, or the punishment of a public offense, involving process and
pleadings, and ending in a judgment.” ’ ” Stevens at 187, quoting Polikoff at 104,
quoting Missionary Soc. of Methodist Episcopal Church v. Ely, 56 Ohio St. 405,
407, 47 N.E. 537 (1897). The General Assembly rephrased and codified our
definition of “action” in section 11237 of the General Code, and the definition is
retained in R.C. 2307.01: “An action is an ordinary proceeding in a court of justice,
involving process, pleadings, and ending in a judgment or decree, by which a party
prosecutes another for the redress of a legal wrong, enforcement of a legal right, or
the punishment of a public offense.”
{¶ 20} An App.R. 26(B) application for reopening is not a “civil action,” as
we have traditionally understood that term. Its remedy did not exist at common law
or in equity. Rather, the remedy was established by this court in 1992 in State v.
Murnahan, when we held that a claim of ineffective assistance of appellate counsel
may be asserted by filing a timely or delayed application for reconsideration in the
court of appeals (under the Rules of Appellate Procedure) and by filing a direct or
delayed appeal in this court (under our Rules of Practice). 63 Ohio St.3d 60, 584
N.E.2d 1204 (1992), paragraphs two and three of the syllabus. App.R. 26(B) was
adopted the following year in response to Murnahan to provide for an application
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to reopen a direct appeal. See State v. Davis, 119 Ohio St.3d 422, 2008-Ohio-4608,
894 N.E.2d 1221, ¶ 13 (“App.R. 26(B) emanates directly from Murnahan”). The
rulemaking powers conferred on this court by the Ohio Constitution, however, do
not extend to creating new forms of civil actions. Article IV, Section 5(B), Ohio
Constitution (“The supreme court shall prescribe rules governing practice and
procedure in all courts of the state, which rules shall not abridge, enlarge, or modify
any substantive right”); see also Fred Siegel Co., L.P.A. v. Arter & Hadden, 85
Ohio St.3d 171, 178, 707 N.E.2d 853 (1999) (“violation of the Disciplinary Rules
does not, in itself, create a private cause of action”).
{¶ 21} Nor does an App.R. 26(B) proceeding fit within the common-law
and statutory definition of “action.” It does not involve the service of a summons
and the filing of pleadings; rather, it provides for the submission of only the
application to reopen and a memorandum in opposition. See App.R. 26(B)(4). And
“application” is another word for a motion, and it is not synonymous with the word
“pleading.” See Civ.R. 7(A) and (B) (distinguishing between a pleading and a
motion, the latter of which is an “application to the court”); Black’s Law
Dictionary 124 (11th Ed.2019) (defining the word “application” as “motion”). The
applicant does not “prosecute” another party in seeking to reopen the appeal. .
{¶ 22} Further, a decision on the application does not result in a civil
judgment, because the appellate court initially enters only an order granting or
denying reopening. See App.R. 26(B)(6). And after an App.R. 26(B) application
is granted, “the case shall proceed as on an initial appeal in accordance with [the
Rules of Appellate Procedure].” App.R. 26(B)(7). If the applicant later establishes
that he or she received ineffective assistance of appellate counsel, then the appellate
court is required to “vacate its prior judgment and enter the appropriate judgment,”
App.R. 26(B)(9), which might include the reversal of the judgment of conviction.
Because the case proceeds as an appellate proceeding that has the ultimate result of
the appellate court’s reviewing a trial-court judgment, it is not a civil action within
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the meaning of R.C. 2969.25(A)—the statute itself expressly distinguishes between
a “civil action” and an “appeal of a civil action.”
{¶ 23} The majority ignores the court of appeals’ error and leaves standing
its conclusion that an application to reopen is a civil action. This error will not be
easily cabined and has consequences not intended by the General Assembly. The
affidavit requirement of R.C. 2969.25(A) applies to “[a] civil action that an inmate
commences against the state * * *.” R.C. 2969.21(B)(1)(a). The state of Ohio is
the adversarial party in an App.R. 26(B) proceeding. See App.R. 26(B)(3)
(requiring the clerk of the court of appeals to serve a copy of the application for
reopening on the attorney for the prosecution); State v. Heinz, 146 Ohio St.3d 374,
2016-Ohio-2814, 56 N.E.3d 965, ¶ 23 (“The General Assembly has implemented
an adversarial system of criminal justice in which the parties to a case contest the
issues before a court of law, and it has vested county prosecuting attorneys with the
authority to represent the state in those proceedings”). An App.R. 26(B) application
to reopen, then, following the court of appeals’ reasoning, would be a civil action
against the state subjecting an inmate to the requirements of R.C. 2969.25.
{¶ 24} Not only does that mean that an inmate would be required to list an
application for reopening in the affidavit mandated by R.C. 2969.25(A) when
commencing a civil action against the state or a political subdivision, but also, the
logical consequence of the court of appeals’ holding is that an inmate must also
submit an affidavit of prior civil actions at the time that he or she files an application
for reopening in the court of appeals. That requirement is not included in App.R.
26(B), and I am not aware of any appellate court that treats applications to reopen
as civil actions subject to the affidavit requirement of R.C. 2969.25(A). Yet,
“[c]ompliance with R.C. 2969.25(A) is mandatory, and failure to comply will
warrant dismissal.” Henton, 146 Ohio St.3d 9, 2016-Ohio-1518, 50 N.E.3d 553, at
¶ 3. Therefore, in the Fifth District, at least, an application to reopen lacking a
compliant affidavit may be summarily denied without any court considering the
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merits of the inmate’s claim of ineffective assistance of appellate counsel. That
result is contrary to “our recognition of effective appellate counsel as a
constitutional right guaranteed to all defendants.” Davis, 119 Ohio St.3d 422,
2008-Ohio-4608, 894 N.E.2d 1221, at ¶ 27.
{¶ 25} The fallout from leaving the court of appeals’ erroneous holding in
place as good law is not limited to inmates seeking to vindicate their rights to the
effective assistance of appellate counsel. The court’s reasoning applies equally to
other proceedings that are civil in nature in which the state or a political subdivision
is the party opposing an inmate. For example, we have recognized that a
postconviction-relief proceeding is a civil, collateral attack on a judgment of
conviction, State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77,
¶ 49, and we have said that the App.R. 26(B) procedure “bears a strong
resemblance” to the process for postconviction relief, Morgan v. Eads, 104 Ohio
St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶ 12. In fact, using reasoning similar
to the Fifth District’s in this case, the Tenth District Court of Appeals has held that
an inmate’s “omission of his appeals of the judgments denying his postconviction
motions subjected his action to dismissal.” State ex rel. McGlown v. Mohr, 10th
Dist. Franklin No. 14AP-478, 2015-Ohio-1554, ¶ 9. And it will not require much
imagination for a prosecutor to seek the dismissal of a petition for postconviction
relief on the basis that the inmate who filed it failed to also file an affidavit listing
his or her prior civil actions. .
{¶ 26} “Our rulings should not promote such a “ ‘ “gotcha” principle of
law.’ ” State v. Craig, 159 Ohio St.3d 398, 2020-Ohio-455, 151 N.E.3d 574, ¶ 51
(Kennedy, J., concurring in judgment only), quoting People v. Whipple, 97 N.Y.2d
1, 7, 734 N.Y.S.2d 549, 760 N.E.2d 337 (2001). The term “civil action” should be
accorded its established meaning, and that meaning is not synonymous with any
proceeding that happens to be civil in nature. Because an application for reopening
filed pursuant to App.R. 26(B) is not a civil action within the meaning of
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R.C. 2969.25(A), I would reject the court of appeals’ erroneous holding that
DeVore’s habeas corpus complaint was subject to dismissal because he failed to
include his App.R. 26(B) application in his affidavit of prior civil actions.
{¶ 27} Nonetheless, I agree with the majority that DeVore has failed to state
a claim that is cognizable in habeas corpus. However, because the majority’s
decision today leaves the court of appeals’ erroneous holding in place, I concur only
in the majority’s judgment affirming the Fifth District’s judgment dismissing the
complaint.
_________________
Adam M. DeVore, pro se.
Dave Yost, Attorney General, and William H. Lamb, Assistant Attorney
General, for appellee.
_________________
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