Clark v. Miller

[Cite as Clark v. Miller, 2019-Ohio-4906.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
THOMAS CLARK
Petitioner C.A. No. 19CA0021-M
v.
SHERIFF TOM MILLER ORIGINAL ACTION IN
MEDINA COUNTY JAIL HABEAS CORPUS
Respondent
Dated: December 2, 2019
PER CURIAM.
{¶1} Thomas Clark has petitioned this Court for a writ of habeas corpus to order
his release from custody. According to his complaint, he is being held in custody, without
bond, after this Court’s reversal in an appeal following the denial of his motion to
withdraw his guilty plea in his criminal case. Sheriff Miller has moved to dismiss,
contending that Mr. Clark is not entitled to release based on this Court’s decision. This
Court must dismiss Mr. Clark’s petition because he did not comply with the statutory
requirements for filing a petition for writ of habeas corpus.
{¶2} R.C. Chapter 2725 prescribes the procedure for bringing a habeas corpus
action. The petitioner must file a petition that contains specific, required, information. If
this Court concludes that the petition states a facially valid claim, it must allow the writ.
R.C. 2725.06. On the other hand, if the petition fails to state a claim, or to meet the
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statutory requirements, this Court should dismiss the petition. Chari v. Vore, 91 Ohio
St.3d 323, 327 (2001).
{¶3} A petition for habeas corpus must be accompanied by copies of all relevant
commitment papers. R.C. 2725.04(D); Day v. Wilson, 116 Ohio St.3d 566, 2008-Ohio-
82, at ¶ 4. This ordinarily requires a petitioner to attach copies of all sentencing entries
from the trial court that resulted in the confinement. See Tisdale v. Eberlin, 114 Ohio
St.3d 201, 2007-Ohio-3833, at ¶ 6; Hairston v. Seidner, 88 Ohio St.3d 57, 58 (2000). A
petitioner may proceed without the commitment papers if he alleges in his petition that
the papers “could not be obtained without impairing the efficiency of the remedy.” See,
e.g., Hughley v. Saunders, 123 Ohio St.3d 90, 2009-Ohio-4089, ¶ 1.
These commitment papers are necessary for a complete
understanding of the petition. Without them, the petition is fatally
defective. When a petition is presented to a court that does not
comply with R.C. 2725.04(D), there is no showing of how the
commitment was procured and there is nothing before the court on
which to make a determined judgment except, of course, the bare
allegations of petitioner’s application.
Bloss v. Rogers, 65 Ohio St.3d 145, 146 (1992). Mr. Clark attached numerous documents
to his petition. But he has not attached any documents showing the cause of his
commitment and he did not allege that he could not obtain those documents. Accordingly,
this Court concludes that Mr. Clark filed a defective petition.
{¶4} In addition, a petition for writ of habeas corpus must be properly verified.
Upon review, this Court concludes that Mr. Clark’s petition is not properly verified, as
required by R.C. 2725.04. A petition filed without proper verification must be dismissed.
Chari, 91 Ohio St.3d at 328. “Verification” means a “formal declaration made in the
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presence of an authorized officer, such as a notary public, by which one swears to the
truth of the statements in the document.” Id. at 327. To meet the verification requirement,
Mr. Clark must have expressly sworn to the truth of the facts contained in the petition.
Id. at 328.
{¶5} Following the request for relief, at the end of the petition, Mr. Clark signed
just below the words “Respectfully submitted.” Below his signature and address, the
following words are typed and hand-written (the hand-written insertions are underlined):
I declare under penalty of perjury that I am the petitioner and the
information in this petition is true and correct. Sworn to and subscribed in
my presence, this 27 day of February, 2019.
Just below this text appear the signature of the notary and a handwritten notation
of the expiration date of the notary’s commission. It appears, therefore, that the
notary has declared that the information in the petition is true and correct. Mr.
Clark, however, did not sign beneath this text to declare that he is the petitioner
and that the information in the petition is true and correct.
{¶6} The mere act of notarization is insufficient. Hughley at ¶ 1. There must be
a “statement in which [the petitioner] expressly swears to the truth of the allegations in
his petition.” Id. The formatting of Mr. Clark’s petition, and his failure to sign following
the statement in which he swears to the truth of the allegations, does not rise to the level
of a “formal act or presence calculated to bring to bear upon the declarant’s conscience
the full meaning of what he does.” Chari at 327, citing Youngstown Steel Door Co. v.
Kosydar, 33 Ohio App.2d 277 (8th Dist.1973). Mr. Clark did not make a formal
declaration by which he swore to the truth of the statements in the document. See Watkins
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v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, ¶ 35. Because the petition is not
verified, it is defective and must be dismissed.
{¶7} Mr. Clark failed to attach his commitment papers to his petition and failed
to verify it. Because the petition is fatally defective, this Court cannot order Mr. Clark’s
release from custody, and the case is dismissed. Costs to Petitioner.
{¶8} The clerk of courts is hereby directed to serve upon all parties not in default
notice of this judgment and its date of entry upon the journal. Civ.R. 58.
THOMAS A. TEODOSIO
FOR THE COURT
SCHAFER, J.
CONCURS.
CARR, J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
THOMAS CLARK, Pro se, Petitioner.
S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Respondent.