Powell v. Miller

[Cite as Powell v. Miller, 2014-Ohio-778.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
REGINALD V. POWELL, )
)
PETITIONER, )
) CASE NO.13-BE-25
V. )
) OPINION
MICHELLE MILLER, WARDEN BECI ) AND
) JUDGEMENT ENTRY
RESPONDENT. )
CHARACTER OF PROCEEDINGS: Petition for Writ of Habeas Corpus
JUDGMENT: Dismissed
APPEARANCES:
For Petitioner Reginald V. Powell, Pro-se
P.O. Box 540
St. Clairsville, Ohio 43950
For Respondent Jerri L. Fosnaught
Assistant Attorney General
Criminal Justice Section
150 East Gay Street, 16th Floor
Columbus, Ohio 43215
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: February 27, 2014
[Cite as Powell v. Miller, 2014-Ohio-778.]
PER CURIAM
{¶1} Petitioner Reginald Powell has filed a pro se petition for writ of habeas
corpus claiming he was entitled to more jail-time credit than he was given.
Respondent Michele Miller, Warden of the Belmont Correctional Institution in St.
Clairsville, Ohio has answered by filing a motion to dismiss.
{¶2} Two pertinent attachments to Powell’s petition are copies of journal
entries from the Cuyahoga County Common Pleas Court. The first one reflects that
on February 17, 2009, Powell appeared in court for sentencing in case no. CR-08-
514348-A. Having been indicted in a five-count indictment, Powell had earlier
pleaded guilty to one count of burglary in violation of R.C. 2911.12(A)(3), a third-
degree felony, and the remaining counts had been dismissed. Having pleaded guilty
to a third-degree felony, Powell was facing a possible term of imprisonment of one,
two, three, four, or five years. R.C. 2929.14(A)(3).
{¶3} Rather than prison, the trial court sentenced Powell to a twelve-month
term of community control sanctions with Powell to be supervised by the intensive
special probation supervision unit. The court ordered that Powell participate in a six-
month electronic home monitoring program and complete the longest out-patient
treatment program available with intensive supervised probation following completion
of that treatment program. The sentencing entry cautioned Powell that he could be
sentenced to a term of imprisonment of five years if he violated any of the terms or
conditions of the community control sanction.
{¶4} Another journal entry attached to Powell’s petition reflects that on
March 5, 2012, Powell again appeared in Cuyahoga Common Pleas Court for a
violation of the community control sanctions. In the case caption of the entry, it is
apparent that the type-written case number was whited out and that case no. CR-12-
558742 was handwritten in. However, the remainder of the unadulterated entry
clearly reflects that the entry is for case no. CR-08-514348-A, as the entry itself
references a case no. CR 558742 by indicating that Powell’s sentence for the
violation of the community control sanctions is to run concurrent with case no. CR
558742. More specifically, the trial court sentenced Powell to a twenty-four month
term of imprisonment with a jail-time credit of forty-four days and to run concurrently
-2-
with case no. CR 558742.
{¶5} In his petition, Powell claims he had completed 180 days in a halfway
house and another 120 days in a “Fresh Start” program for which the trial court did
not give him jail-time credit when it sentenced him to the 24-month term of
imprisonment. Powell claims he has filed three separate motions for jail-time credit
and the trial court has not ruled on the motions.
{¶6} Powell’s petition must be dismissed. Habeas corpus is unavailable
when there is an adequate remedy in the ordinary course of law. Billiter v. Banks, 135
Ohio St.3d 426, 2013-Ohio-1719, 988 N.E.2d 556, ¶ 8. Powell had an adequate
remedy by appeal to raise any error by the trial court in calculating his jail-time credit.
Hughley v. Saunders, 123 Ohio St.3d 446, 2009-Ohio-5585, 917 N.E.2d 270, ¶ 1.
{¶7} To the extent that Powell’s petition is directed to the trial court’s alleged
failure to adjudicate his motions for jail-time credit, “procedendo – not habeas corpus
– is the appropriate writ when a court has either refused to render a judgment or has
unnecessarily delayed proceeding to judgment.” Bozsik v. Hudson, 110 Ohio St.3d
245, 246, 2006-Ohio-4356, 852 N.E.2d 1200, ¶ 11.
{¶8} For the foregoing reasons, the warden’s motion to dismiss is granted
and Powell’s petition for writ of habeas corpus is hereby dismissed.
{¶9} Costs taxed against Powell. Final order. Clerk to serve notice on the
parties as required by the Ohio Rules of Civil Procedure.
Donofrio, J. concurs.
Vukovich, J. concurs.
DeGenaro, P.J. concurs.