Perry v. Greene

[Cite as Perry v. Greene, 2013-Ohio-1879.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
MORRIS J. PERRY, SR., )
)
PETITIONER, )
)
V. ) CASE NO. 13 MA 33
)
JERRY GREENE, MAHONING COUNTY ) OPINION
SHERIFF, ) AND
) JUDGMENT ENTRY
RESPONDENT. )
CHARACTER OF PROCEEDINGS: Petition for Writ of Habeas Corpus
JUDGMENT: Dismissed
APPEARANCES:
For Petitioner Morris J. Perry, Sr. Pro-Se
#195
110 Fifth Avenue
Youngstown, Ohio 44503
For Respondent Paul Gains
Prosecutor
Ralph M. Rivera
Assistant Prosecutor
21 W. Boardman St., 6th Floor
Youngstown, Ohio 44503
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: April 29, 2013
[Cite as Perry v. Greene, 2013-Ohio-1879.]
PER CURIAM.
{¶1} Petitioner Morris Perry Sr. has filed a pro se petition for a writ of habeas
corpus against Respondent Jerry Greene, Mahoning County Sheriff. The sheriff has
filed a motion to dismiss.
{¶2} Perry was convicted in Youngstown Municipal Court of possessing
criminal tools and attempted theft. The trial court sentenced him to ninety days
electronically monitored house arrest, two years of probation, and a fine of $100 for
each offense. Perry appealed his conviction to this court arguing insufficiency of the
evidence.
{¶3} Following this court’s affirmance of his conviction, State v. Perry, 7th
Dist. No. 11 MA 129, 2012-Ohio-5574, the trial court set a status hearing for which
Perry failed to appear. The court issued a bench warrant and Perry was subsequently
incarcerated in the Mahoning County Jail. The court granted electronically monitored
house arrest upon the posting of a bond. Apparently unable to make bond, Perry filed
the present petition arguing that he has served in excess of the maximum amount of
jail term allowed for two fourth-degree misdemeanor convictions.
{¶4} There are three reasons Perry’s petition must be dismissed. First, R.C.
2725.04 requires that:
Application for the writ of habeas corpus shall be by petition,
signed and verified either by the party for whose relief it is intended, or
by some person for him, and shall specify:
***
(D) A copy of the commitment or cause of detention of such
person shall be exhibited, if it can be procured without impairing the
efficiency of the remedy; or, if the imprisonment or detention is without
legal authority, such fact must appear.
{¶5} Perry has failed to attach copies of his commitment papers to his
petition as required by R.C. 2725.04(D). Failure to attach copies of commitment
papers, such as the judgment entry of sentence, as part of the original filing of the
petition for habeas corpus requires the dismissal of the petition. Bloss v. Rogers, 65
-2-
Ohio St.3d 145, 146, 602 N.E.2d 602 (1992).
{¶6} Second, R.C. 2969.25(A) requires an inmate, at the time of
commencing a civil action against a government entity, to “file with the court an
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.” The Ohio
Supreme Court has held that the requirements in R.C. 2969.25 apply to state habeas
corpus actions and that even belated attempts to file the required affidavit do not
excuse his noncompliance. Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio–5533,
797 N.E.2d 982, ¶ 6-9 (“A habeas corpus action is a civil action and therefore the
provisions of R.C. 2969.21 through 2969.27 are applicable to such action.”).
{¶7} Here, Perry has not filed an affidavit as required by R.C. 2969.25. Thus,
as mentioned, compliance with the provisions of R.C. 2969.25 is mandatory and the
failure to satisfy the statutory requirements is grounds for dismissal. State ex rel.
Washington v. Ohio Adult Parole Auth., 87 Ohio St.3d 258, 259, 719 N.E.2d 544(1999); State ex rel. Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421, 422, 696 N.E.2d
594 (1998).
{¶8} Third, “[p]etitions for habeas corpus should be dismissed as moot when
the inmate has been released from incarceration.” White v. Wolfe, 7th Dist. No. 305,
2003-Ohio-3883, at ¶ 13, citing Pewitt v. Lorain Correctional Institution (1992), 64
Ohio St.3d 470, 472, 597 N.E.2d 92 (1992). And we “must consider presently existing
facts and conditions when determining whether to issue the writ of habeas corpus.”
Id. at ¶ 12, citing State ex rel. Rhinehart v. Celebreeze (1946), 147 Ohio St. 24, 26,
67 N.E.2d 776. Counsel for the sheriff has attached to its motion to dismiss a
Mahoning County Sheriff’s Department Inmate Listing dated April 10, 2013. Perry’s
name does not appear on that list, indicating that he has been released from
incarceration.
{¶9} For the foregoing reasons, the sheriff’s motion to dismiss is granted and
Perry’s petition for writ of habeas corpus is hereby dismissed.
{¶10} Costs taxed against Perry. Final order. Clerk to serve notice on the
parties as required by the Ohio Rules of Civil Procedure.
-3-
Donofrio, J. concurs.
Vukovich, J. concurs.
DeGenaro, P.J. concurs.