[Cite as Singfield v. Larose, 2019-Ohio-1679.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 MAHONING COUNTY

                                        PHILLIP SINGFIELD,

                                         Petitioner-Appellant,

                                                     v.

                           CHRISTOPHER LAROSE, WARDEN,

                                       Respondent-Appellee.


                        OPINION AND JUDGMENT ENTRY
                                         Case No. 18 MA 0047


                                    Civil Appeal from the
                       Court of Common Pleas of Mahoning County, Ohio
                                   Case No. 2018 CV 286

                                         BEFORE:
                 David A. D’Apolito, Gene Donofrio, Cheryl L. Waite, Judges.


                                                 JUDGMENT:
                                                   Affirmed


 Atty. Matthew Williams, Attorney at Law, Valore & Gordillo LLP, 21055 Lorain Road,
 Fairview Park, Ohio 44126, for Petitioner-Appellant and


 Atty. Stephanie Watson, Principal Asst. Attorney General, Corrections Litigation
 Section, 150 East Gay Street, 16th Floor, Columbus, Ohio 43215, for Respondent-
 Appellee.
                                                                                        –2–



                                   Dated: April 29, 2019


 D’APOLITO, J.

       {¶1}    Appellant Phillip Singfield appeals the dismissal with prejudice of his pro se
petition for writ of habeas corpus, filed pursuant to Chapter 2725 of the Ohio Revised
Code, by the Mahoning County Court of Common Pleas. The sentencing entry at issue
plainly states that Appellant’s sentences for firearms specifications were imposed to run
concurrently with each other, but consecutively to his sentences for two counts of
aggravated robbery and one count of having a weapon under a disability. Based on the
absence of similar language relating to his three substantive sentences, and the
presumption favoring concurrent sentences codified in R.C. 2929.41(A), Appellant
asserts that his substantive sentences were imposed to run concurrently with one
another. He further asserts that he has completed his sentence and is being unlawfully
restrained.
       {¶2}    Appellee Christopher LaRose, Warden of the Northeast Ohio Correctional
Center, filed a motion to dismiss the petition pursuant to Civ R. 12(b)(6), predicated upon
Appellant’s failure to fulfill several filing requirements, as well as the existence of
adequate remedies at law, and the doctrine of res judicata. The trial court granted the
motion with prejudice. Because Appellant does not challenge the jurisdiction of the
sentencing court, he has unsuccessfully invoked adequate legal remedies, and he has
failed to demonstrate any ambiguity in the sentencing entry, and there fore extraordinary
relief is not available.

                                   Standard of Review

       {¶3}    A court may dismiss a habeas action under Civ.R. 12(B)(6) for failure to
state a claim upon which relief can be granted “‘if, after all factual allegations are
presumed true and all reasonable inferences are made in [the petitioner’s] favor, it
appears beyond doubt that he could prove no set of facts entitling him to the requested
extraordinary relief in habeas corpus.’” Curtis v. Wainwright, 2019-Ohio-942, -- N.E.2d --,
¶ 4, quoting Keith v. Bobby, 117 Ohio St.3d 470, 2008-Ohio-1443, 884 N.E.2d 1067, ¶


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10. We review a dismissal under Civ.R. 12(B)(6) de novo. Id., citing State ex rel.
McKinney v. Schmenk, 152 Ohio St.3d 70, 2017-Ohio-9183, 92 N.E.3d 871, ¶ 8.
       {¶4}   In determining whether a civil petition states a viable claim for relief under
Civ.R. 12(B)(6), a court can review the allegations in the petition and any materials
attached and incorporated into the petition. See State ex rel. Crabtree v. Franklin Cty.
Bd. of Health, 77 Ohio St.3d 247, 249, 673 N.E.2d 1281, fn. 1 (1997). Attached to the
petition are copies of: (1) the three journal entries of sentencing filed in this case, two
sentencing entries journalized on December 29, 2008 and one journalized on October 19,
2010; (2) a nunc pro tunc order filed on April 9, 2012; (3) a decision of the Ninth District
Court of Appeals vacating in large measure the October 19, 2010 journal entry; and (4)
an affidavit of prior civil actions filed pursuant to R.C. 2969.25(A). The motion to dismiss
was predicated exclusively on the petition, the attachments to the petition, and the Ninth
District opinions issued in the underlying criminal case.

                                    Procedural History

       {¶5}   Appellant was tried by jury and convicted of two counts of aggravated
robbery with firearms specifications (counts one and two), two counts of robbery with
firearms specifications (counts three and four), having a weapon while under disability
(count five), one count of theft (count six), and one count of petty theft (count seven).
Appellant’s sentence was the subject of three sentencing hearings, three journal entries
of sentence (one treated as a nullity, one amended by a nunc pro tunc order, and one
vacated but for the provision imposing postrelease control), and four Ninth District Court
of Appeals decisions.
       {¶6}   The only sentencing entry relevant to the current appeal memorialized the
sentence imposed by the trial court at a hearing on December 19, 2008 (“December 19th
sentencing entry”), and sets forth Appellant’s prison terms in the third paragraph: three-
year mandatory sentences for each of the firearm specifications, five-year sentences for
each of the aggravated robbery convictions, and a one-year sentence for the weapons
under disability conviction. The sixth and seventh paragraphs of the December 19th
sentencing entry read, in their entirety:




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       IT IS FURTHER ORDERED that the Three (3) year mandatory sentences
       imposed in this case for firearm specifications be served CONCURRENTLY
       with each other but shall be served CONSECUTIVELY with the sentences
       imposed in Counts 1, 2, and 5.

       IT IS FURTHER ORDERED that the Defendant is to serve a total of
       Fourteen (14) years in the Ohio Department of Rehabilitation.

(12/29/18 J.E. p. 2).

       {¶7}   In Appellant’s direct appeal, State v. Singfield, 9th Dist. Summit No. 24576,
2009-Ohio-4172 (“Singfield I”), the Ninth District reversed Appellant’s aggravated robbery
convictions based on the Ohio Supreme Court’s holdings in State v. Colon, 118 Ohio
St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, and State v. Colon, 119 Ohio St.3d 204,
2008-Ohio-3749, 893 N.E.2d 169. Within a few months, the decision of the Singfield I
Court was vacated following the issuance of State v. Lester, 123 Ohio St.3d 396, 2009-
Ohio-4225, 916 N.E.2d 1038. After vacating its original decision in the direct appeal, the
Ninth District issued a second decision overruling all of Appellant’s assignments of error
and affirming his convictions and sentence. State v. Singfield, 9th Dist. Summit No.
24576, 2009-Ohio-5945 (“Singfield II”).
       {¶8}   On October 19, 2010, in response to a Criminal Rule 47 motion to correct
sentence filed by Appellant based on the Ohio Supreme Court’s pronouncements in State
v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, State v. Baker, 119 Ohio
St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, and State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, the trial court issued the third and final journal entry of sentence in this
case, in which it imposed a third and completely different sentence, albeit for the same
aggregate length, in addition to addressing the Bezac/Baker/Fischer defects in the
December 19, 2008 sentencing entry.
       {¶9}   In State v. Singfield, 9th Dist. Summit No. 27680, 2012-Ohio-1331
(“Singfield III”), the Ninth District vacated the October 19, 2010 sentencing entry, with the
sole exception of the portion that addressed postrelease control. The Singfield III Court
remanded the matter to the trial court to issue a nunc pro tunc order amending the



Case No. 18 MA 0047
                                                                                          –5–


December 19th sentencing entry solely with respect to Appellant’s manner of conviction,
pursuant to State ex rel. De Wine v. Burge, 128 Ohio St.3d 236, 2011-Ohio-235, 943
N.E.2d 535, ¶ 19.
       {¶10} In the final paragraph of Singfield III, the Ninth District observed that
“Singfield’s original concurrent sentences remain intact, as does the portion of the
appealed resentencing judgment that addresses postrelease control.”               Id. at ¶ 11
(Emphasis added).       Appellant relies on the Singfield III Court’s use of the term
“concurrent” to support his claim for release.
       {¶11} On November 19, 2013, Appellant filed a pro se motion to modify or for
correction of sentence pursuant to R.C. 2953.08. The motion was predicated upon the
very same argument advanced here.             Appellant argued that the December 19th
sentencing entry is ambiguous as to whether the sentences for his substantive
convictions were imposed to run concurrently with or consecutively to one another, and
that the ambiguity must be construed in his favor. The trial court denied the motion.
       {¶12} In State v. Singfield, 9th Dist. Summit No. 27680, 2015-Ohio-2841,
(“Singfield IV”), the Ninth District affirmed the trial court’s denial of Appellant’s motion to
correct sentence. Id. at ¶ 7. The Singfield IV Court opined that res judicata barred
Appellant’s claim insofar as the doctrine applies to all issues which were or could have
been raised on direct appeal. Because the alleged error “occurred with the trial court’s
sentencing entry from 2008, and was thus patent on the face of the record,” the Singfield
IV Court concluded that Appellant’s failure to challenge the sentencing entry in his direct
appeal barred his claim. Id. at ¶ 8-9.
                                             Law

       {¶13} R.C. 2725.01 reads, in its entirety, “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.” However, if it appears that a person alleged to
be restrained of his liberty is in the custody of an officer under process issued by virtue of
the judgment or order of a court of record, and that the court had jurisdiction to make the
order, the writ of habeas corpus shall not be allowed. R.C. 2725.05.



Case No. 18 MA 0047
                                                                                        –6–


       {¶14} Sentencing errors are not jurisdictional and thus are not generally
remediable by extraordinary writ. Manns v. Gansheimer, 117 Ohio St.3d 251, 2008-Ohio-
851, 883 N.E.2d 431, ¶ 6. Notwithstanding the fact that only nonjurisdictional issues are
involved, habeas corpus will lie in certain extraordinary circumstances where there is an
unlawful restraint of a person’s liberty, but only where there is no adequate legal remedy,
e.g., appeal or postconviction relief. State ex rel. Jaffal v. Calabrese, 105 Ohio St.3d 440,
2005-Ohio-2591, 828 N.E.2d 107, ¶ 5.
       {¶15} A writ of habeas corpus is an extraordinary remedy and is appropriate only
when the petitioner is entitled to immediate release from confinement. See State ex rel.
Jackson v. McFaul, 73 Ohio St.3d 185, 188, 652 N.E.2d 746 (1995). The burden of proof
is on the petitioner to show that he is illegally detained, and, therefore, entitled to
immediate release. See Halleck v. Koloski, 4 Ohio St.2d 76, 77, 212 N.E.2d 601 (1965).

                                         Analysis

       {¶16} Appellant advances five assignments of error, which are taken out-of-order,
and grouped together for clarity of analysis and judicial economy:

       Second Issue Presented For Review: did the alleged existence of adequate
       alternative remedies warrant dismissal of the petition?

       Fourth Issue Presented for Review: does the respondent’s argument that
       appellant’s sentence has not expired warrant dismissal of the petition with
       prejudice?

       {¶17} In State ex rel. O’Neal v. Bunting, 140 Ohio St.3d 339, 2014-Ohio-4037, 18
N.E.3d 430, O’Neal entered a guilty plea and was convicted of one count of felonious
assault with a gun specification. The trial court imposed a six-year sentence for the
felonious assault conviction, and a three-year sentence for the gun specification. The
sentencing entry plainly stated that the gun specification sentence was to be served
consecutively to O’Neal’s then-pending federal sentence for the same conduct. O’Neal
argued that the trial court had imposed his three-year gun specification sentence to be
served consecutively to his federal sentence, but did not impose the same condition with



Case No. 18 MA 0047
                                                                                     –7–


respect to his substantive conviction. He further argued that the ambiguity should be read
in his favor to impose concurrent sentences. The trial court dismissed O’Neal’s petition,
and the Third District affirmed.     The Ohio Supreme Court reached the following
conclusions regarding O’Neal’s petition:

      First, habeas corpus is inappropriate here because sentencing errors are
      not jurisdictional and thus are not cognizable in habeas corpus. Dunbar v.
      State, 136 Ohio St.3d 181, 2013-Ohio-2163, 992 N.E.2d 1111, ¶ 15; State
      ex rel. Hudson v. Sutula, 131 Ohio St.3d 177, 2012-Ohio-554, 962 N.E.2d
      798, ¶ 1.

      Second, the availability of other adequate remedies at law also precludes
      relief in habeas corpus. State ex rel. Massie v. Rogers, 77 Ohio St.3d 449,
      450, 674 N.E.2d 1383 (1997).         O’Neal had, and used, the alternative
      remedies of appeal and a motion to withdraw his guilty plea.

      O’Neal made the same arguments in those actions regarding his sentence
      that he is making here. “Where a plain and adequate remedy at law has
      been unsuccessfully invoked, extraordinary relief is not available to
      relitigate the same issue.” Childers v. Wingard, 83 Ohio St.3d 427, 428,
      700 N.E.2d 588 (1998), citing State ex rel. Sampson v. Parrott, 82 Ohio
      St.3d 92, 93, 694 N.E.2d 463 (1998).

      Third, even if he could overcome the procedural and jurisdictional problems
      with habeas here, his arguments are without merit. The sentencing entry is
      clear that both his state sentences are to be served consecutively to the
      federal sentence.

State ex rel. O'Neal v. Bunting, supra at ¶ 13-16.

      {¶18} The Ohio Supreme Court’s analysis applies with equal force here.
Appellant’s sentencing challenge is not jurisdictional.       Non-jurisdictional habeas
challenges may only be countenanced where no adequate remedy at law exists.
Appellant has already raised the identical claim in his motion to correct sentence, and


Case No. 18 MA 0047
                                                                                         –8–


could have raised the issue in his direct appeal. Finally, despite the Singfield III Court’s
use of the phrase “concurrent sentences,” it is clear from the aggregate sentence
memorialized in the December 19th sentencing entry that the trial court imposed the
sentences for each of Appellant’s three substantive convictions to be served
consecutively to one another. Accordingly, we find that Appellant’s second and fourth
assignments of error have no merit and the trial court did not err in dismissing the petition
on the merits.

       First issue presented for review: Can the Trial Court dismiss a petition for
       a writ of habeas corpus with prejudice for failure to comply with the statutory
       requirements of R.C. § 2725.04(D) and R.C. § 2969.25?

       Fifth issue presented for review: Can a court dismissing a complaint on a
       motion made pursuant to Civ. R. 12(B)(6), dismiss the complaint with
       prejudice?

       Third Issue Presented for Review: does the doctrine of res judicata support the
       dismissal of the of the [sic] petition?

       {¶19} In his first and fifth assignments of error, Appellant contends that the trial
court erred when it dismissed the petition with prejudice based upon Appellant’s failure to
comply with statutory filing requirements. Appellant also challenges the dismissal of the
petition to the extent that the trial court relied on the doctrine of res judicata. As we find
that the trial court did not err in dismissing the petition with prejudice, Appellant’s first,
third, and fifth assignments of error are moot.

                                         Conclusion

       {¶20} In summary, Appellant does not challenge the jurisdiction of the sentencing
court, he has unsuccessfully invoked adequate legal remedies, and he has failed to
demonstrate any ambiguity in the sentencing entry. The December 19th sentencing entry
clearly reads that the sentences for Appellant’s substantive crimes were imposed to run
consecutively to one another, based on the aggregate sentence memorialized in




Case No. 18 MA 0047
                                                                                      –9–


paragraph seven. Accordingly, the judgment entry of the trial court dismissing the petition
with prejudice pursuant to Civ.R. 12(b)(6) is affirmed.




Donofrio, J., concurs.

Waite, P.J., concurs.




Case No. 18 MA 0047
[Cite as Singfield v. Larose, 2019-Ohio-1679.]




         For the reasons stated in the Opinion rendered herein, it is the final judgment
 and order of this Court that the judgment of the Court of Common Pleas of Mahoning
 County, Ohio, is affirmed. Costs to be taxed against the Appellant.
         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                        NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
