[Cite as Spires v. Marquis, 2018-Ohio-3146.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


KEVIN SPIRES                                   :    JUDGES:
                                               :
        Petitioner                             :    Hon., John W. Wise, PJ.
                                               :    Hon., Patricia A. Delaney, J.
                                               :    Hon., Earle E. Wise Jr., J.
-vs-                                           :
                                               :
DAVID MARQUIS, Warden                          :    Case No. 18CA43
Richland Correctional Institution              :
                                               :
                                               :
        Respondent                             :    OPINION



CHARACTER OF PROCEEDING:                            Writ of Habeas Corpus


JUDGMENT:                                           Dismissed


DATE OF JUDGMENT:                                   August, 3, 2018



APPEARANCES:

For Petitioner:                                     For Respondent:

Kevin Spires A636889                                Michael DeWine
Richland Correctional Institution                   Ohio Attorney General
1001 Olivesburg Rd.
P.O. Box 8107                                       Mary Anne Reese
Mansfield, Ohio 44901-8107                          Assistant Attorney General
                                                    Criminal Justice Section
                                                    441 Vine Street, Suite 1600
                                                    Cincinnati, Ohio 45202
Richland County, Case No. 18CA43                                                             2

Delaney, P.J.

       {¶1}     Petitioner Kevin Spires has filed a Complaint for Writ of Habeas corpus

requesting release from prison based upon the allegation that the trial court improperly

allowed his indictment to be amended without going through the grand jury. Respondent

David Marquis, the warden of the Richland Correctional Institution has filed a Motion for

Summary Judgment.

                                               FACTS

       ¶2}      Petitioner was convicted of eight counts of rape following a jury trial. During

trial, the state moved to amend the indictment to reflect the victim was ten years of age

rather than nine years of age during the allegations contained in the first four counts of

the indictment. State v. Spires, 10th Dist. Franklin No. 10AP-861, 2011-Ohio-3312, ¶ 8.

The trial court granted the motion to amend over Petitioner’s objection. Id. Petitioner was

convicted and sentenced to a term of 20 years to life in prison. Petitioner’s sole claim is

that the trial court lacked jurisdiction to convict him because the indictment was permitted

to be amended without going through the grand jury process.

                                      SUMMARY JUDGMENT

       {¶3}     “A court properly grants summary judgment “when an examination of all

relevant materials filed in the action reveals that ‘there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law.’ ” Smith

v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12, quoting Civ.R.

56(C).” State ex rel. Marsh v. Tibbals, 149 Ohio St.3d 656, 2017-Ohio-829, 77 N.E.3d

909, ¶ 11.
Richland County, Case No. 18CA43                                                        3


                                      HABEAS CORPUS

       {¶4}   “Habeas corpus will lie only to challenge the jurisdiction of the sentencing

court. R.C. 2725.05.” Patrick v. Bunting, 150 Ohio St.3d 537, 2017-Ohio-6954, 83 N.E.3d

926, ¶ 5. A claim regarding the validity of an amended indictment is nonjurisdictional in

nature and should be raised on appeal of the criminal conviction. Haynes v. Voorhies,

110 Ohio St.3d 243, 2006-Ohio-4355, 852 N.E.2d 1198, ¶ 5 (2006)

       {¶5}   The Supreme Court has held, “[H]abeas corpus is not available to remedy

a claim concerning the validity of an amendment to an indictment. See, e.g., Howard v.

Randle, 95 Ohio St.3d 281, 2002-Ohio-2122, 767 N.E.2d 268, ¶ 6; State ex rel. Richard

v. Seidner (1996), 76 Ohio St.3d 149, 151, 666 N.E.2d 1134.” Haynes v. Voorhies, 110

Ohio St.3d 243, 2006-Ohio-4355, 852 N.E.2d 1198, ¶ 6.

       {¶6}   Because a claim as to validity of an amended indictment does not lie in

habeas corpus and because Petitioner has or had an adequate remedy at law by way of

appeal to challenge the amended indictment, the writ of habeas corpus will not issue.

The motion for summary judgment is granted.

By, Wise, P.J.

Delaney, J. and

E. Wise Jr., J. concur.
[Cite as Spires v. Marquis, 2018-Ohio-3146.]
