[Cite as Peterson v. Marquis, 2018-Ohio-509.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                        JUDGES:
DAMIEN L. PETERSON                              :       Hon. W. Scott Gwin, P.J.
                                                :       Hon. Patricia A. Delaney, J.
                                  Petitioner    :       Craig R. Baldwin, J.
                                                :
-vs-                                            :
                                                :       Case No. 16-CA-47
DAVID MARQUIS, WARDEN                           :
                                                :
                               Respondent       :       OPINION




CHARACTER OF PROCEEDING:                            Writ of Habeas Corpus


JUDGMENT:                                           Denied


DATE OF JUDGMENT ENTRY:                             February 7, 2018

APPEARANCES:

For Petitioner                                      For Respondent

DAMIEN L. PETERSON #503-884                         WILLIAM H. LAMB
Richland Correctional Institute                     Assistant Attorney General
1001 Olivesburg Road                                441 Vine Street
Mansfield, OH 44901                                 1600 Carew Tower
                                                    Cincinnati, OH 45202
Richland County, Case No. 16-CA-47                                                           2

Gwin, P.J.

       {¶1}   Petitioner, Damien Peterson, has filed a Petition for Writ of Habeas Corpus

arguing he should be immediately released from prison. Respondent has filed a motion

to dismiss for failure to state a claim upon which relief may be granted.

       {¶2}   Petitioner was convicted of aggravated robbery, felonious assault, weapons

under disability, firearm specifications, and repeat violent offender specifications. He was

sentenced to 12 years in prison.

       {¶3}   Petitioner applied for and was granted judicial release. The State filed a

notice of appeal of the trial court’s entry granting judicial release. While the appeal was

pending, Petitioner was charged with violating the terms of his judicial release. On March

26, 2015, the Eighth District Court of Appeals found the trial court did not make necessary

statutory findings before granting judicial release and reversed the trial court. On May 6,

2015, the trial court, revoked Petitioner’s judicial release and returned Petitioner to prison.

Apparently, the trial court, was unaware of the appellate court’s ruling.

       {¶4}   Petitioner complains that he is imprisoned pursuant to a violation of the

terms of his judicial release. He argues because the judicial release was found to have

been improperly granted, he cannot be found to have violated judicial release.

       {¶5}   Petitioner is not being held on revocation of judicial release. Once the court

of appeals reversed the trial court’s entry granting judicial release, Petitioner’s original

sentence was all that remained. The trial court’s entry finding the terms of judicial release

had been violated and sentencing Petitioner is moot. Therefore, Petitioner is being held

on his original sentence.
Richland County, Case No. 16-CA-47                                                         3


       {¶6}   “A writ of habeas corpus can only be granted if the petitioner can establish

one of two circumstances, i.e., (1) that the sentencing court in his underlying criminal

proceeding lacked jurisdiction to convict him, or (2) that he is still being held in prison,

although he has already served his entire sentence. State ex rel. Vinson v. Gansheimer,

11th Dist. Ashtabula No. 2007–A–0042, 2007–Ohio–5205, ¶ 6

       {¶7}   ‘Like other extraordinary-writ actions, habeas corpus is not available when

there is an adequate remedy in the ordinary course of law.’ In re Complaint for Writ of

Habeas Corpus for Goeller, 103 Ohio St.3d 427, 2004–Ohio–5579, ¶ 6.” State ex rel.

Menton v. Sloan, 11th Dist. Ashtabula No. 2017-A-0021, 2017-Ohio-7661, ¶ 7.

       {¶8}   “[H]abeas corpus relief generally is appropriate only when ‘the petitioner's

maximum sentence has expired and he is being held unlawfully.’ Heddleston v. Mack, 84

Ohio St.3d 213, 214, 702 N.E.2d 1198 (1998).” State ex rel. Marsh v. Tibbals, 149 Ohio

St.3d 656, 2017-Ohio-829, 77 N.E.3d 909, ¶ 12.

       {¶9}   Petitioner argues the appellate court’s reversal put him back in the position

he was prior to the entry granting judicial release. Petitioner relies on the following: “The

effect of reversing a case is to reinstate the case back in precisely the same condition it

was in before the alleged violation was said to have occurred. In re G.N., 12th Dist. No.

CA2007-12-119, 2008-Ohio-1796, ¶ 11, 176 Ohio App.3d 236, 891 N.E.2d 816, citing

Wilson v. Kreusch (1996), 111 Ohio App.3d 47, 51, 675 N.E.2d 571.” State v. Schafer,

3rd Dist. Defiance No. 4-08-07, 2008-Ohio-6183, ¶ 18.

       {¶10} Petitioner was sentenced to 12 years in prison. He was released for a

portion of time on judicial release and was not incarcerated. Petitioner argues the time

spent out of prison counted toward his sentence even though he was not in prison.
Richland County, Case No. 16-CA-47                                                     4


Petitioner was sentenced to 12 years in prison and has not served 12 years in prison.

Petitioner does not receive prison credit for time not spent in prison.

       {¶11} Further, Petitioner has or had an adequate remedy at law by way of appeal

to challenge the judgment entry finding a violation of judicial release.

       {¶12} Petitioner’s sentence has not yet expired, and Petitioner has or had an

adequate remedy at law, therefore, habeas corpus does not lie. The petition for a writ of

habeas corpus is denied.

By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur
