[Cite as Birdsall v. Miller, 2013-Ohio-2957.]




                              STATE OF OHIO, BELMONT COUNTY

                                    IN THE COURT OF APPEALS

                                          SEVENTH DISTRICT

DEAN BIRDSALL,                                  )
                                                )      CASE NO.      13 BE 10
        PETITIONER,                             )
                                                )         OPINION
        - VS -                                  )           AND
                                                )      JUDGMENT ENTRY
MICHELE MILLER, WARDEN,                         )
BELMONT CORRECTIONAL                            )
INSTITUTION,                                    )
                                                )
        RESPONDENT.                             )

CHARACTER OF PROCEEDINGS:                           Petitioner’s Petition for Writ of Habeas
                                                    Corpus; Respondent’s Motion to Dismiss.

JUDGMENT:                                           Petition for Writ of Habeas Corpus Denied;
                                                    Motion to Dismiss Granted.

APPEARANCES:
For Petitioner:                                     Dean Birdsall, Pro Se
                                                    #A602-141
                                                    Belmont Correctional Institution
                                                    P.O. Box 540
                                                    St. Clairsville, Ohio 43950

For Respondent:                                     Attorney Michael DeWine
                                                    Attorney General
                                                    Attorney Stephanie Watson
                                                    Assistant Attorney General
                                                    Criminal Justice Section
                                                    150 East Gay Street, 16th Floor
                                                    Columbus, Ohio 43215-6001

JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro

                                                    Dated: June 28, 2013
[Cite as Birdsall v. Miller, 2013-Ohio-2957.]
PER CURIAM:


        ¶{1}     On May 9, 2013, Petitioner Dean Birdsall filed a petition for writ of
habeas corpus with this court. On May 28, 2013, Respondent Michele Miller, Belmont
Correctional Institution’s Warden, filed a Motion to Dismiss.
        ¶{2}     From the filings and the attachments thereto, it is apparent that in 1994,
Petitioner was convicted of rape in violation of R.C. 2907.02, a first-degree felony. He
received an indefinite term of 7 to 25 years. Medina County, Ohio, Common Pleas
Court Case No. 92CR0367. Petitioner did not file a direct appeal from that conviction
and sentence. According to Petitioner, in December 2007, he was released on parole
after serving approximately 13 years.
        ¶{3}     In 2010, while on parole, Petitioner was charged in Richland County,
Ohio, with one count of Failure to Register as a Sexually Oriented Offender, a first-
degree felony, and one count of Escape, a second-degree felony. A plea agreement
was reached in April 2011. Petitioner pled no contest to the escape charge. As part of
the agreement, the failure to register charge was dismissed and the parties agreed to
jointly recommend a six year sentence for the escape conviction and that the sentence
is to run concurrent to the 7 to 25 year sentence for the rape conviction in Medina
County Case No. 92CR0367.                  04/21/11 J.E.; 04/12/12 J.E.   The trial court found
Petitioner guilty and followed the jointly agreed sentence recommendation. 04/21/11
J.E. Petitioner did not file a timely direct appeal from this conviction. However, he did
file a delayed appeal. 07/09/12 Motion; 08/06/12 Amended Motion for Leave to File
Delayed Appeal. The Fifth Appellate District denied the motion. 08/22/12 J.E
        ¶{4}     Petitioner did not timely appeal that decision. Rather, he filed a motion
for a delayed appeal in the Ohio Supreme Court. 12/21/12 Motion Ohio Supreme
Court Case No. 2012-2144. The Ohio Supreme Court denied the motion. State v.
Birdsall, ___ Ohio St.3d ___, 2013-Ohio-347, 982 N.E.2d 726.
        ¶{5}     This brings us to the writ of habeas corpus that was filed with this court.
There are two discernible arguments set forth in the writ. The first argument is that
Petitioner’s conduct did not constitute escape as espoused in R.C. 2921.34(A)(1).
Specifically, it seems that he is arguing that in order to be guilty under that provision
he had to be on postrelease control at the time of the escape. He contends that his
1994 sentence for rape did not include a postrelease control sentence and therefore
                                                                                    -2-


that element of escape cannot be met. His second discernible argument is that the act
of escape was used to punish him for violating his parole and was also used to convict
him. Thus, he contends he was punished twice for the same conduct and this violated
the double jeopardy clauses of the United States Constitution and the Ohio
Constitution.
       ¶{6}     The habeas corpus statute, R.C. 2725.01, provides: “Whoever is
unlawfully restrained of his liberty, or entitled to the custody of another, of which
custody such person is unlawfully deprived, may prosecute a writ of habeas corpus, to
inquire into the cause of such imprisonment, restraint, or deprivation.” The writ of
habeas corpus is an extraordinary writ and will only be issued in certain circumstances
of unlawful restraint of a person's liberty where there is no adequate legal remedy at
law. In re Pianowski, 7th Dist. No. 03MA16, 2003–Ohio–3881, ¶ 3; see also State ex
rel. Pirman v. Money, 69 Ohio St.3d 591, 593, 635 N.E.2d 26 (1994). “Thus, if the
defendant has or had an adequate remedy in the ordinary course of the law such as
an appeal, delayed appeal, petition for post-conviction relief, motion for relief from a
civil judgment, or motion to withdraw a guilty plea, then habeas is inappropriate.”
(Emphasis sic.) Mosley v. Eberlin, 7th No. 08 BE 7, 2008–Ohio–6593, ¶ 27.
       ¶{7}     Both of Petitioner’s arguments could have been addressed in a direct
appeal or a delayed appeal. Furthermore, the first argument concerning the elements
of escape could also have been raised in a post-sentence motion to withdraw his no
contest plea to argue that his plea was not entered into knowingly, intelligently and/or
voluntarily. Thus, Petitioner has or had an adequate remedy at law. For that reason
alone, the writ fails.
       ¶{8}     However, even if we do consider the arguments they are meritless.
Regarding his first argument that the state could not prove the elements of escape,
R.C. 2921.34(A)(1) provides that no person, knowing the person is under detention
shall purposely break the detention or purposely fail to return to detention. (Statute in
effect in 2010). Petitioner admitted in the writ that he was on parole when the alleged
escape occurred.         The Ohio Supreme Court has explained that parole constitutes
detention within the meaning of the statute and a parolee’s failure to report constitutes
escape under R.C. 2921.34. State v. Thompson, 102 Ohio St.3d 287, 809 N.E.2d
1134, 2004-Ohio-2946 (the amendments to R.C. 2921.34 in 1996 and 2967.15(C)(2)
                                                                                      -3-


in 1988 make it clear that after 1998 parolees who fail to report can be charged with
escape regardless of when the underlying crime was committed; General Assembly
intends to include a parolee's failure to report within the definition of escape). See also
R.C. 2921.34(D) (current version).        Thus, the elements of escape under R.C.
2921.34(A)(1) could be met.
       ¶{9}   Petitioner’s second argument concerns being convicted and sentenced
for escape and using that same conduct to punish him for violating parole. He asserts
that that action amounts to a double punishment for the same conduct and constitutes
a violation of the double jeopardy clause. The Ohio Supreme Court’s decision in
Martello is controlling over this issue. In that case it was explained:
              The Double Jeopardy Clause of the United States Constitution,
       contained in the Fifth Amendment, provides that no “person [shall] be
       subject for the same offence to be twice put in jeopardy of life or limb.”
       Section 10, Article I of the Ohio Constitution similarly provides, “No
       person shall be twice put in jeopardy for the same offense.” The
       protections afforded by the two Double Jeopardy Clauses are
       coextensive.
              It has long been recognized that double jeopardy principles do not
       prohibit the imposition of every additional sanction that could be labeled
       “punishment” in common parlance. Rather, double jeopardy principles
       protect “only against the imposition of multiple criminal punishments for
       the same offense * * * and then only when such occurs in successive
       proceedings.” (Emphasis deleted.)
(Citations Omitted.) State v. Martello, 97 Ohio St. 3d 398, 399-400, 2002-Ohio-6661,
780 N.E.2d 250, ¶ 7-8.
       ¶{10} The Court then went on to explain that any punishment imposed by the
Adult Parole Authority was civil in nature and amounted to nothing more than the
reinstatement of punishment already imposed as part of the original criminal
prosecution. Id. at ¶ 26. Therefore, double jeopardy did not attach. It explained that
the longstanding rule in both Ohio and in federal courts was that a criminal defendant
could be convicted of the new charge of escape regardless of any decision by a parole
                                                                                     -4-


authority to reinstate the original sentence or impose additional administrative
sanctions for the parole violation. Id. at ¶ 38.
       ¶{11} Therefore, Petitioner’s second argument also lacks merit.
       ¶{12} In conclusion, Petitioner had an adequate remedy at law and regardless,
his arguments lack merit. Therefore, Respondent’s motion to dismiss is granted. The
petition for a writ of habeas corpus is dismissed. Costs taxed against Petitioner.
       ¶{13} Final order. Clerk to serve notice as provided by the Civil Rules.

Vukovich, J., concurs.
Waite, J., concurs.
DeGenaro, P.J., concurs.
