[Cite as Daggett v. Bradshaw, 2013-Ohio-713.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



LEOTIS M. DAGGETT                                  JUDGES:
                                                   Hon. John W. Wise, P. J.
        Petitioner                                 Hon. Julie A. Edwards, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 12 CA 99
MARGARET BRADSHAW, WARDEN

        Respondent                                 OPINION




CHARACTER OF PROCEEDING:                        Writ of Habeas Corpus


JUDGMENT:                                       Denied



DATE OF JUDGMENT ENTRY:                         February 27, 2013



APPEARANCES:

For Petitioner                                  For Respondent

LEOTIS M. DAGGETT                               MICHAEL DEWINE
Post Office Box 8107                            ATTORNEY GENERAL
Mansfield, Ohio 44901                           THELMA THOMAS PRICE
                                                ASSISTANT ATTORNEY GENERAL
                                                150 East Gay Street, 16th Floor
                                                Columbus, Ohio 43215
Richland County, Case No. 12 CA 99                                                      2

Wise, P. J.


      {¶1}    This matter came before the Court for consideration of Petitioner Leotis M.

Daggett’s Petition for Writ of Habeas Corpus, filed October 5, 2012, and the Motion to

Dismiss, filed November 8, 2012, by Respondent Margaret Bradshaw, Warden of

Richland Correctional Institution.

      {¶2}    Upon review of the petition presently before this Court, we note that

“habeas corpus lies only if the petitioner is entitled to immediate release from

confinement.” State ex rel. Jackson v. McFaul, 73 Ohio St.3d 185, 188, 652 N.E.2d 746

(1995). In habeas corpus cases, the burden of proof is on the petitioner to establish his

right to release. Halleck v. Koloski, 4 Ohio St.2d 76, 77, 212 N.E.2d 601 (1965);

Yarbrough v. Maxwell, 174 Ohio St. 287, 288, 189 N.E.2d 136 (1963). “[U]nsupported

and uncorroborated statements of the petitioner, standing alone, are not sufficient to

overcome the presumption of regularity of the court's judgment.” Yarbrough, 174 Ohio

St. at 288, 189 N.E.2d 136 (1963). “Like other extraordinary-writ actions, habeas corpus

is not available when there is an adequate remedy in the ordinary course of law.” In re

Complaint for Writ of Habeas Corpus for Goeller, 103 Ohio St.3d 427, 2004–Ohio–5579,

816 N.E.2d 594, ¶ 6.

      {¶3}    Petitioner Leotis Daggett was indicted and pled guilty to one count of

Robbery, in violation of R.C. 2911.02(A)(2), a second degree felony. Petitioner entered

into a negotiated plea agreement and on June 20, 2011, he was sentenced to six (6)

years in prison. The trial court issued a nunc pro tunc entry on June 27, 2011, to add

that Petitioner was subject to a three (3) year period of post release control. On July 8,
Richland County, Case No. 12 CA 90                                                       3


2011, the trial court filed a second nunc pro tunc entry correcting the sentencing entry to

reflect that Robbery is a second degree felony.

      {¶4}    In the instant Petition for a Writ of Habeas Corpus, Petitioner argues the

trial court’s nunc pro tunc sentencing entries are void claiming the trial court lacked

authority to issue same. He further argues that because his original sentencing entry

stated his robbery conviction was a fourth degree felony, he is being illegally restrained

because he has already served the maximum time for a fourth degree felony.

      {¶5}    Here, Daggett's petition fails because the issue he raises is one that could

have and should have been raised in a direct appeal of his conviction and sentence.

The Ohio Supreme Court has recognized that habeas corpus is not to be used as a

substitute for other forms of action, such as direct appeal. Adams v. Humphreys (1986),

27 Ohio St.3d 43, 500 N.E.2d 1373. “Habeas corpus is not a proper remedy for

reviewing allegations of sentencing errors when that sentence was made by a court of

proper jurisdiction. R.C. 2725.05; Majoros v. Collins (1992), 64 Ohio St.3d 442, 596

N.E.2d 1038; State ex rel. Wynn v. Baker (1991), 61 Ohio St.3d 464, 575 N.E.2d 208.

Direct appeal or post-conviction relief is instead the proper avenue to address such

alleged errors in sentencing. Blackburn v. Jago (1988), 39 Ohio St.3d 139, 139, 529

N.E.2d 929.” Id. at ¶ 4.

      {¶6}    Furthermore, in Patterson v. Ohio Adult Parole Auth., 120 Ohio St.3d 311,

2008-Ohio-6147, 898 N.E.2d 950, ¶ 8, the petitioner sought the extraordinary writ of

habeas corpus to obtain his release from post-release control because the trial judge

had failed to notify him of post-release control during the sentencing hearing. The

Supreme Court of Ohio affirmed the denial of the writ because there was an adequate
Richland County, Case No. 12 CA 90                                                     4


remedy at law that precluded such extraordinary relief. The court held that direct appeal

from the sentence was the remedy for improprieties relating to post-release control: “We

have never held that these claims can be raised by extraordinary writ when the

sentencing entry includes post-release control, however inartfully it might be phrased.”

See, also, Pierre v. McFaul, Cuyahoga App. No. 94357, 2010-Ohio-271; and In Re:

Jackson v. Phillips, Cuyahoga App. No. 91963, 2009-Ohio-125.

      {¶7}   For the foregoing reasons, the Court hereby denies the Petition for Writ of

Habeas Corpus and grants Respondent’s Motion to Dismiss.

      {¶8}   IT IS SO ORDERED.


By: Wise, P. J.

Delaney, J., and

Edwards, J., concur.



                                            ___________________________________


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                                                                JUDGES
JWW/d 0208
Richland County, Case No. 12 CA 99                                            5


           IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




LEOTIS M. DAGGETT                       :
                                        :
       Petitioner                       :
                                        :
-vs-                                    :        JUDGMENT ENTRY
                                        :
MARGARET BRADSHAW, WARDEN               :
                                        :
       Respondent                       :        Case No. 12 CA 99




       For the reasons stated in our accompanying Memorandum-Opinion, this Court

denies the Petition for Writ of Habeas Corpus and grants Respondent’s Motion to

Dismiss.

       IT IS SO ORDERED.




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                                                         JUDGES
