[Cite as In re Frederick, 2017-Ohio-8122.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                    SANDUSKY COUNTY


In re Thomas Frederick                            Court of Appeals No. S-17-037




                                                  DECISION AND JUDGMENT

                                                  Decided: October 4, 2017

                                             *****

        Christopher P. Fiegl, for petitioner.

                                             **** *

        PIETRYKOWSKI, J.

        {¶ 1} This matter is before the court on the petition of Thomas Frederick for a writ

of habeas corpus. For the reasons that follow, we find that the petition fails to satisfy the

requirements of R.C. 2725.04, and is therefore fatally defective and must be denied.

        {¶ 2} In his petition, Frederick, through counsel, states that he is imprisoned based

upon a felony indictment in case No. 17-CR-282. However, on September 20, 2017, the
trial court found Frederick to be incompetent to stand trial and not subject to being

restored to competency within a one-year period of time. Thus, the trial court dismissed

the indictment, and ordered that “jurisdiction over [Frederick] is transferred to the

Sandusky County Court of Common Pleas, Probate Division for further proceeding

pursuant to Ohio Revised Code 5122 or 5123.” However, Frederick states that no civil

commitment proceedings have been initiated against him in the probate court. Therefore,

Frederick argues that he is wrongfully being held in custody, and demands that a writ of

habeas corpus issue immediately against his illegal imprisonment by the Sandusky

County Sheriff and the state of Ohio.

       {¶ 3} R.C. 2725.04 provides the requirements for an application for a writ of

habeas corpus:

              Application for the writ of habeas corpus shall be by petition, signed

       and verified either by the party for whose relief it is intended, or by some

       person for him, and shall specify:

              (A) That the person in whose behalf the application is made is

       imprisoned, or restrained of his liberty;

              (B) The officer, or name of the person by whom the prisoner is so

       confined or restrained; or, if both are unknown or uncertain, such officer or

       person may be described by an assumed appellation and the person who is

       served with the writ is deemed the person intended;




2.
              (C) The place where the prisoner is so imprisoned or restrained, if

       known;

              (D) A copy of the commitment or cause of detention of such person

       shall be exhibited, if it can be procured without impairing the efficiency of

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

       such fact must appear.

       {¶ 4} Here, we primarily note that the application is not “verified.” “‘Verification’

means a ‘formal declaration made in the presence of an authorized officer, such as a

notary public, by which one swears to the truth of the statements in the document.’”

(Emphasis added.) Chari v. Vore, 91 Ohio St.3d 323, 327, 744 N.E.2d 763 (2001),

quoting Garner, Black’s Law Dictionary, 1556 (7 Ed.1999). Where an application is not

verified, it must be dismissed. Id. at 328 (application should have been dismissed

because neither the petitioner nor his attorney expressly swore to the truth of the facts

contained therein).

       {¶ 5} In addition to the lack of verification, we further note that the application

does not expressly name the person by whom Frederick is confined, and upon whom the

writ should be served, although it does intimate that the person is the Sandusky County

Sheriff. R.C. 2725.04(B). Similarly, the application does not state where the petitioner is

imprisoned. R.C. 2725.04(C).




3.
       {¶ 6} Accordingly, upon due consideration, Frederick’s petition for a writ of

habeas corpus is hereby denied without prejudice at petitioner’s costs. Frederick may

refile his petition to cure the foregoing deficiencies.

       {¶ 7} To the Clerk: Manner of Service.

       {¶ 8} Serve upon all parties in a manner prescribed by Civ.R. 5(B) notice of the

judgment and its date of entry upon the journal.


                                                                              Writ denied.




Mark L. Pietrykowski, J.                         _______________________________
                                                             JUDGE
Arlene Singer, J.
                                                 _______________________________
James D. Jensen, P.J.                                        JUDGE
CONCUR.
                                                 _______________________________
                                                             JUDGE




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