[Cite as Smith v. May, 2019-Ohio-4846.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                       JUDGES:
DARRYL SMITH                                   :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Patricia A. Delaney, J.
                                  Petitioner   :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 2019CA0090
HAROLD MAY, WARDEN                             :
                                               :
                              Respondent       :       OPINION




CHARACTER OF PROCEEDING:                           Writ of Habeas Corpus



JUDGMENT:                                          Dismissed



DATE OF JUDGMENT ENTRY:                            November 25, 2019

APPEARANCES:

For - Petitioner                                   For - Respondent

DARRYL SMITH PRO SE                                DAVE YOST
DRC #760166                                        Attorney General
Richland Correctional Institution                  By: Daniel J. Benoit
Box 8107                                           Assistant Attorney General
1001 Olivesburg Road                               Criminal Justice Section
Mansfield, OH 44901                                150 East Gay Street, 16th Floor
                                                   Columbus, OH 43215-6001
Richland County, Case No. 2019CA0090                                                         2


Gwin, P.J.

       {¶1}   On October 3, 2019, Darryl Smith filed a petition for writ of habeas corpus

requesting the following relief: (1) immediate release from imprisonment; (2) purge and

expungement of his convictions referenced in the writ; (3) an order requiring the state of

Ohio and Cuyahoga County government to pay him damages for unlawful imprisonment,

unlawful seizure, and destruction of his truck and the contents contained therein; (4) order

requiring a prompt hearing and evidentiary hearing; and (5) order granting prompt

temporary bond or release pending final judgment.

       {¶2}   The Ohio Attorney General, on behalf of Respondent, Warden Harold May,

moved to dismiss Mr. Smith’s petition under Civ.R. 12(B)(6). The purpose of a Civ.R.

12(B)(6) motion is to test the sufficiency of the complaint. State ex rel. Boggs v. Springfield

Loc. School Dist. Bd. of Edn., 72 Ohio St.3d 94, 95, 647 N.E.2d 788 (1995). In order for

a case to be dismissed for failure to state a claim, it must appear beyond doubt that, even

assuming all factual allegations in the complaint are true, the nonmoving party can prove

no set of facts that would entitle that party to the relief requested. Keith v. Bobby, 117

Ohio St.3d 470, 2008-Ohio-1443, 884 N.E.2d 1067, ¶10. If a petition does not satisfy the

requirements for a properly filed petition for writ of habeas corpus or does not present a

facially viable claim, it may be dismissed on motion by the respondent or sua sponte by

the Court. Flora v. State, 7th Dist. Belmont No. 04 BE 51, 2005-Ohio-2383, ¶5.

       {¶3}   “To be entitled to a writ of habeas corpus, a petitioner must show that he is

being unlawfully restrained of his liberty and that he is entitled to immediate release from

prison or confinement.” State ex rel. Whitt v. Harris, ____ Ohio St.3d ____, 2019-Ohio-

4113, ¶6, citing R.C. 2725.01; State ex rel. Cannon v. Mohr, 155 Ohio St.3d 213, 2018-
Richland County, Case No. 2019CA0090                                                     3


Ohio-4184, 120 N.E.3d 776, ¶10. Habeas corpus is generally available 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), citing Morgan v. Ohio Adult

Parole Auth., 68 Ohio St.3d 344, 346, 626 N.E.2d 939 (1994). Further, habeas corpus is

not available when an adequate remedy at law exists. Billiter v. Banks, 135 Ohio St.3d

426, 2013-Ohio-1719, 988 N.E.2d 556, ¶8.

       {¶4}   Here, Mr. Smith generally alleges the following in support of his habeas

corpus petition: the state concealed or falsified evidence; the trial court falsified a

sentencing entry; the evidence in support of his conviction for failure to comply is

insufficient; his guilty pleas were not voluntarily entered and were the result of threats;

and his sentence is the result of retaliation by the trial court after he lodged complaints

about the jail guards, jail conditions, and sheriff deputies.

       {¶5}   Importantly, none of these grounds for the requested habeas relief are

based on the fact that Mr. Smith’s maximum sentence has expired and that he is being

unlawfully held. In fact, on January 10, 2019, the Cuyahoga County Court of Common

Pleas sentenced Mr. Smith to eight years and six months in prison for one count of failure

to comply and one count of attempted aggravated arson. See Petition for Writ of Habeas

Corpus, pp. 7-8. Thus, because Mr. Smith’s maximum sentence has not expired, he is

not entitled to habeas relief.

       {¶6}   However, this is not the only deficiency with Mr. Smith’s Petition for Habeas

Corpus. Mr. Smith also did not attach all of his pertinent commitment papers as required

by R.C. 2725.04(D). This statute provides: “A copy of the commitment or cause of

detention of such person shall be exhibited, if it can be procured without impairing the
Richland County, Case No. 2019CA0090                                                    4


efficiency of the remedy; or if the imprisonment or detention is without legal authority,

such fact must appear.” The Ohio Supreme Court explained in Bloss v. Rodgers, 65 Ohio

St.3d 145, 146, 602 N.E.2d 602 (1992):


      [C]ommitment papers are necessary for a complete understanding of the

      petition. * * * 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 the

      petitioner’s application.

      (Citation omitted.)

      {¶7}   The absence of all pertinent commitment papers “renders the petition fatally

defective and subject to dismissal.” Fugett v. Turner, 140 Ohio St.3d 1, 2014-Ohio-1934,

14 N.E.3d 984, ¶2, citing Day v. Wilson, 116 Ohio St.3d 566, 2008-Ohio-82, 880 N.E.2d

919, ¶4. Here, Mr. Smith attached two sentencing Journal Entries from Case No. CR-17-

620144-A. The first Journal Entry, Exhibit 1, found Mr. Smith violated his probation and

imposed his original sentence of six years. The second Journal Entry, Exhibit 2, also from

Case No. CR-17-620144-A, grants Mr. Smith’s request to correct the record. Mr. Smith

also attached a Journal Entry, from Case No. CR-18-630341-A, Exhibit 6, that sentenced

him for failure to comply with order signal of police officer. However, Mr. Smith did not

attach his original sentencing Journal Entry from Case No. CR-17-620144-A. Because

Mr. Smith references his original plea and sentencing herein, in Case No. CR-17-620144-

A, this Journal Entry was pertinent for our review of his petition. Mr. Smith’s failure to
Richland County, Case No. 2019CA0090                                                      5


attach this Journal Entry serves as an independent ground to dismiss his Petition for Writ

of Habeas Corpus.

      {¶8}   For the reasons set forth above, we grant the attorney general’s Motion to

Dismiss under Civ.R. 12(B)(6).

      {¶9}   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. See Civ.R. 58(B).

      {¶10} MOTION GRANTED.

      {¶11} CAUSE DISMISSED.

      {¶12} COSTS TO PETITIONER.

      {¶13} IT IS SO ORDERED.
[Cite as Smith v. May, 2019-Ohio-4846.]
