State ex rel. Spencer v. Forshey

[Cite as State ex rel. Spencer v. Forshey, 2023-Ohio-776.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
NOBLE COUNTY
STATE EX REL. BRIAN N. SPENCER,
Petitioner,
v.
JAY FORSHEY, WARDEN,
Respondent.
OPINION AND JUDGMENT ENTRY
Case No. 22 NO 0500
Writ of Habeas Corpus
BEFORE:
David A. D’Apolito, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Denied.
Brian N. Spencer, Pro Se, #A723-149, Noble Correctional Institution, 15708
McConnelsville Road, Caldwell, Ohio 43724, Petitioner and
Atty. Dave Yost, Ohio Attorney General, 30 East Broad Street, 14th Floor, Columbus,
Ohio 43215, and Atty. Stephanie L. Watson, Principal Assistant Attorney General,
Corrections Litigation Section, 30 East Broad Street, 23rd Floor, Columbus, Ohio 43215,
for Respondent.
Dated: March 9, 2023
–2–
PER CURIAM.
{¶1} Petitioner Brian N. Spencer has filed this original action for a writ of habeas
corpus seeking his immediate release from the Noble Correctional Institution in Caldwell,
Ohio. Spencer argues the trial court’s failure to provide him substitute counsel and failure
to secure a valid waiver of counsel deprived it of subject matter jurisdiction rendering his
conviction void. The petition names the warden, Jay Forshey, as respondent. Counsel
for the warden has filed a motion to dismiss contending an invalid of waiver of counsel
does not deprive a trial court of jurisdiction. The warden also contends Spencer is not
entitled to immediate release because he has not completed the maximum term of his
sentence and his habeas complaint does not meet R.C. 2969.25 filing requirements.
Because Spencer’s claim of an invalid waiver of counsel was adjudicated in his direct
appeal, the court must dismiss this action.
{¶2} In 2014, Spencer was indicted for possession of heroin, marijuana, a
dangerous ordinance (an allegedly automatic weapon), having a weapon while under a
disability, and firearm specifications associated with the drug and dangerous ordinance
counts. The case went on to a jury trial in early 2016 with Spencer represented by
appointed counsel. Just before voir dire, the parties engaged in settlement discussions
in the trial court resulting in the state offering Spencer two alternative plea deals. After a
recess, Spencer’s appointed trial counsel informed the court that Spencer wanted a trial
and did not want to enter a plea. Spencer requested substitute counsel which the trial
court denied.
{¶3} Spencer proceeded to represent himself during the trial. The jury convicted
him of the heroin, marijuana, and having a weapon under disability counts and acquitted
him of the dangerous ordinance count and the two six-year firearm specifications charged
because of his alleged possession of an automatic weapon. The trial court sentenced
Spencer to 16 years in prison.
{¶4} On his delayed, direct appeal, Spencer alleged the trial court erred in failing
to hold a pretrial hearing on the issue of self-representation and effectively denied him
the right to counsel by refusing to appoint him new counsel. The Tenth District Court of
Case No. 22 NO 0500
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Appeals found Spencer’s arguments without merit and affirmed the trial court’s judgment.
State v. Spencer, 10th Dist. Franklin No. 16AP-444, 2017-Ohio-1140.
{¶5} In his complaint before this court, Spencer advances the same argument
he did in his direct appeal—that the trial court failed to obtain a valid waiver of counsel.
To be entitled to a writ of habeas corpus, a petitioner must show they are being unlawfully
restrained of their liberty and they are entitled to immediate release from prison or
confinement. R.C. 2725.01; State ex rel. Cannon, 155 Ohio St.3d 213, 2018-Ohio-4184,
120 N.E.3d 776, ¶ 10.
{¶6} Habeas corpus is not generally available when there is an adequate remedy
at law. State ex rel. Gibson v. Sloan, 147 Ohio St.3d 240, 2016-Ohio-3422, 63 N.E.3d
1172, ¶ 7. The availability of an adequate remedy at law, even if that remedy was not
sought or was unsuccessful, precludes a writ of habeas corpus. State ex rel. O’Neal v.
Bunting, 140 Ohio St.3d 339, 2014-Ohio-4037, 18 N.E.3d 430, ¶ 15. Here, as indicated,
Spencer had available to him an adequate remedy at law to present his invalid-waiver-of-
counsel claim by way of direct appeal which he pursued unsuccessfully.
{¶7} Therefore, the warden’s motion to dismiss is hereby granted. Writ denied.
{¶8} Costs taxed against Spencer. Final order. Clerk to serve copies of this
decision and judgment entry pursuant to the civil rules.
JUDGE DAVID A. D’APOLITO
JUDGE CHERYL L. WAITE
JUDGE CAROL ANN ROBB
Case No. 22 NO 0500