[Cite as State ex rel. Cox v. Sloan, 2015-Ohio-3219.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


STATE OF OHIO ex rel.                                   :   PER CURIAM OPINION
MICHAEL COX,
                                                        :
                 Petitioner,                                CASE NO. 2015-A-0018
                                                        :
        - vs -
                                                        :
BRIGHAM SLOAN, WARDEN,
                                                        :
                 Respondent.
                                                        :


Original Action for Writ of Habeas Corpus.

Judgment: Petition denied.


Michael Cox, pro se, PID# A440-129, Lake Erie Correctional Institution, P.O. Box
8000, 501 Thompson Road, Conneaut, OH 44030 (Petitioner).

Mike DeWine, Ohio Attorney General, State Office Tower, 30 East Broad Street, 25th
Floor, Columbus, OH 43215 (For Respondent).



PER CURIAM

        {¶1}     Pending before this court is the Petition for Writ of Habeas Corpus, filed by

Michael Cox, a prisoner in the custody of the respondent, Brigham Sloan, Warden of

Lake Erie Correctional Institution, in Conneaut, Ohio. For the reasons stated more fully

below, judgment is entered in favor of Sloan.

        {¶2}     Cox filed his Petition on March 17, 2015. According to a December 18,

2002 Judgment Entry Probation Revocation attached to the Petition, Cox was
sentenced by the Crawford County Court of Common Pleas in Case No. 94 CR-0097 to

serve a two-year prison term for Grand Theft, a felony of the third degree in violation of

R.C. 2913.02, and a concurrent five to twenty-five-year prison term for Aggravated

Burglary, a felony of the first degree in violation of R.C. 2911.11. The sentence was

being imposed upon Cox having been “found guilty of violating the terms of probation

granted to him by the entry filed herein on October 17, 1994.”

      {¶3}   According to the Petition, Cox’ sentence was “void ab initio” because it

was imposed “by a court lacking subject-matter-jurisdiction.”      Cox claimed that the

Crawford County Court of Common Pleas lost jurisdiction on December 31, 1997, when

it dismissed, “with prejudice,” an “alleged violation of probation” without extending his

probation. In a January 13, 1998 Judgment Entry Nunc pro Tunc, the Crawford County

Court of Common Pleas noted that the December 31, 1997 Entry failed to state that “the

probation granted to defendant on October 17, 1994 is tolled,” and ordered such

probation be “tolled until such time as defendant is released from prison in [the

unrelated] Case No. 97 CR-0123.”

      {¶4}   On April 15, 2015, Sloan filed a Motion for Summary Judgment. Sloan

argued that Cox had an adequate alternative remedy, i.e., a direct appeal: “If Cox

wished to challenge the imposition of the 1994 suspended sentence, he should have

filed an appeal of the Crawford County trial court’s December 18, 2002 sentencing entry

* * *.” Sloan also argued that Cox was not entitled to immediate release from prison

because his sentence for the 1994 conviction has not expired: “Cox’s maximum

sentence will not expire until January 23, 2034.” Finally, Sloan argued that Cox failed to

attach his commitment papers as required by R.C. 2725.04(D): “[t]hough Cox attached




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some of his commitment papers from his 1994 conviction, he did not attach the

commitment papers setting forth his initial conviction via his guilty plea, or his judicial

release on shock probation.”

       {¶5}   On April 23, 2015, Cox filed Petitioner’s Objections to Respondent’s

Motion for Summary Judgment. In the Objections, Cox raises the argument that he is

protected against the imposition of multiple punishments for the same offense under the

Fifth Amendment to the United States Constitution.

       {¶6}   “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.”

R.C. 2725.01. “If it appears that a person alleged to be restrained of his liberty is in the

custody of an officer under process issued by a court or magistrate, or by virtue of the

judgment or order of a court of record, and that the court or magistrate had jurisdiction

to issue the process, render the judgment, or make the order, the writ of habeas corpus

shall not be allowed.” R.C. 2725.05.

       {¶7}   Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the

evidence shows “that there is no genuine issue as to any material fact” to be litigated,

(2) “the moving party is entitled to judgment as a matter of law,” and (3) “it appears from

the evidence * * * that reasonable minds can come to but one conclusion and that

conclusion is adverse to the party against whom the motion for summary judgment is

made, that party being entitled to have the evidence * * * construed most strongly in the

party’s favor.”




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       {¶8}   The basis for Cox’ argument that he is unlawfully restrained of his liberty

arises from the Ohio Supreme Court case of Davis v. Wolfe, 92 Ohio St.3d 549, 751

N.E.2d 1051 (2001). In Davis, the Supreme Court affirmed the release of a prisoner

whose probation had been revoked after the expiration of his probationary period. The

Court relied on former R.C. 2951.09 (repealed January 1, 2004) which provided that, “at

the end or termination of the period of probation, the jurisdiction of the judge or

magistrate to impose sentence ceases and the defendant shall be discharged.”

Accordingly, “[d]ischarge is required even if the alleged probation violation occurred

during the probationary period and could have resulted in a valid probation revocation

and imposition of sentence if it had been timely prosecuted.” Davis at 551. It is Cox’

position that, when the Crawford County Court of Common Pleas revoked his probation

on December 18, 2002, his probationary period had expired and, thus, the court was

without jurisdiction to reimpose his original sentence.

       {¶9}   The Supreme Court in Davis further held that in such a situation habeas

corpus was an appropriate remedy despite the availability of a direct appeal. Id. at 552;

Rash v. Anderson, 80 Ohio St.3d 349, 350, 686 N.E.2d 505 (1997) (“[w]hen a court’s

judgment is void because the court lacked subject-matter jurisdiction, habeas corpus is

generally an appropriate remedy despite the availability of appeal”); In re Lockheart, 157

Ohio St. 192, 105 N.E.2d 35 (1952), paragraph three of the syllabus (“[i]f the judgment

or order under which an accused is imprisoned is a nullity, habeas corpus is the

recognized and approved remedy to secure his release”).

       {¶10} In the present case, Cox originally received an aggregate five to twenty-

five-year sentence in Case No. 94 CR-0097, which was suspended when Cox was




                                             4
released on probation in 1994. While on probation, Cox was convicted of Felonious

Assault in Crawford County Court of Common Pleas Case No. 97 CR-0123 and

sentenced to four years in prison, which resulted in Cox being charged with violating his

probation in Case No. 94 CR-0097.

       {¶11} According to the December 31, 1997 Judgment Entry attached to the

Petition, the State “moved the court to dismiss the alleged violation of probation” and

the trial court did so with prejudice.

       {¶12} Cox contends this judgment had the effect of terminating his probation.

According to former R.C. 2951.09, when a defendant is charged with violating

probation, the court “may terminate the probation and impose any sentence that

originally could have been imposed or continue the probation and remand the defendant

to the custody of the probation authority, at any time during the probationary period.”

According to Cox, the court did neither. Rather, the court tried to belatedly remedy its

failure through the January 13, 1998 Nunc pro Tunc Entry, which ordered “that the

probation granted to defendant on October 17, 1994 is tolled until such time as

defendant is released from prison in Case No. 97 CR-0123.” Cox maintains the court

was without subject matter jurisdiction to issue this Entry, as his probationary period had

already expired. Likewise, the court was without jurisdiction to reimpose his original

sentence, when Cox was again convicted of Felonious Assault in Richland County

Court of Common Pleas Case No. 02-CR-463-D.

       {¶13} Cox’ argument fails in that his probationary period in Case No. 94 CR-

0097 was automatically tolled during the period of his incarceration in Case No. 97 CR-




                                            5
0123 and, therefore, it was not necessary for the trial court to expressly extend the

period of probation through its Nunc pro Tunc Entry.

       {¶14} Former R.C. 2951.07 provided that, “if the probationer is confined in any

institution for the commission of any offense whatever, the probation period ceases to

run until such time as the probationer is brought before the court for its further action.”

Since Cox’ probationary period was tolled during his incarceration in Case No. 97 CR-

0123, the trial court retained jurisdiction to reimpose the original sentence in Case No.

94 CR-0097. State v. Baker, 12th Dist. Butler No. CA2001-05-103, 2002-Ohio-3346, ¶

10 (“[a]ppellant’s probation period was automatically tolled as a result of his

confinement in an institution for the commission of an offense”); State v. Hardy, 8th Dist.

Cuyahoga No. 93677, 2010-Ohio-3419, ¶ 18 (“appellant’s period of probation was tolled

for the time he was in prison for the 1998 drug conviction[;] [a]s a result of that tolling,

his five-year period of probation had not yet expired on September 19, 2002, and the

trial court had jurisdiction to revoke his probation and impose the original sentence”).

       {¶15} As Sloan is entitled to judgment as a matter of law, the Motion for

Summary Judgment is granted. It is the order of this court that the Petition for Writ of

Habeas Corpus is denied.



DIANE V. GRENDELL , J., THOMAS R. WRIGHT, J., COLLEEN MARY O’TOOLE, J.,

concur.




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