[Cite as Bear v. Buchanan, 2018-Ohio-1817.]




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

                                       SAMUEL E. BEAR,

                                              Petitioner,

                                                  v.

                                        TIM BUCHANAN,

                                      Warden/Respondent.


                       OPINION AND JUDGMENT ENTRY
                                       Case No. 17 NO 0457


                                       Writ of Habeas Corpus

                                         BEFORE:
                  Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.


                                              JUDGMENT:
                                               Dismissed.


Samuel Bear, Pro Se, A736-567, 15708 McConnelsville Road, Caldwell, Ohio 43724,
for Petitioner and

Atty. Stephanie Watson, Criminal Justice Section, 150 East Gay Street, 16th Floor,
Columbus, Ohio 43215-6001 for Respondent.

                               RELEASED AND JOURNALIZED:
                                      May 8, 2018
Case No. 17 NO 0457                                                                       –2–


PER CURIAM.

       {¶1}   Petitioner Samuel E. Bear is a prisoner at the Noble Correctional
Institution and, proceeding on his own behalf, has filed a petition for a writ of habeas
corpus. Petitioner is currently in the custody of Respondent Tim Buchanan, warden of
the prison. Respondent has filed a motion to dismiss.
       {¶2}   In 2016, Petitioner sent an unsolicited letter to the mother of two young
children revealing that he had engaged in oral sex with the children, who would have
been 2 and 5 years old at the time of the assault.              The mother contacted law
enforcement authorities and Petitioner confessed to them as well, indicating that he was
18 or 19 years old at the time of the offenses. Following the issuance of a Bill of
Information and a negotiated Crim.R. 11 plea agreement, Petitioner pleaded guilty to
two counts of first-degree-felony rape in violation of R.C. 2907.02(A)(2). The parties
reached an agreed upon sentence recommendation of two 8-year terms of
imprisonment to be served concurrently.             The trial court sentenced Petitioner
accordingly and he has not yet pursued a direct appeal of his conviction and sentence.
       {¶3}   Petitioner then filed the petition which is the subject of this original action.
       {¶4}   R.C. 2725.01 provides: “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.”
       {¶5}   Respondent has filed a Civ.R. 12(B)(6) motion to dismiss for failure to
state a claim in this matter. The purpose of such a motion is to test the sufficiency of
the complaint. State el rel. Boggs v. Springfield Local School Dist. Bd. of Ed., 72 Ohio
St.3d 94, 95, 647 N.E.2d 788 (1995). In order for a case to be dismissed for failure to
state a claim, it must appear beyond doubt that, even assuming all factual allegations in
the complaint are true, the nonmoving party can prove no set of facts that would entitle
that party to the relief requested. State ex rel. Pirman, 69 Ohio St .3d at 593; Keith v.
Bobby, 117 Ohio St.3d 470, 2008-Ohio-1443, 884 N.E.2d 1067, ¶ 10. If the petition
does not meet the requirements of a properly filed petition for writ of habeas corpus, or
fails to state a facially viable claim, it may be dismissed on motion by the respondent or
sua sponte by the court. Flora v. State, 7th Dist. No. 04 BE 51, 2005–Ohio–2383, ¶ 5.
Case No. 17 NO 0457                                                                      –3–




        {¶6}   Petitioner argues that his incarceration is unlawful because he was a
minor at the time of the offenses and never appeared before the juvenile court for
bindover proceedings.
        {¶7}   R.C. 2152.12, which governs transfers of case from juvenile court
provides as follows:
           If a person under eighteen years of age allegedly commits an act that
        would be a felony if committed by an adult and if the person is not taken
        into custody or apprehended for that act until after the person attains
        twenty-one years of age, the juvenile court does not have jurisdiction to
        hear or determine any portion of the case charging the person with
        committing that act. In those circumstances, divisions (A) and (B) of this
        section do not apply regarding the act, and the case charging the person
        with committing the act shall be a criminal prosecution commenced and
        heard in the appropriate court having jurisdiction of the offense as if the
        person had been eighteen years of age or older when the person
        committed the act. All proceedings pertaining to the act shall be within the
        jurisdiction of the court having jurisdiction of the offense, and that court
        has all the authority and duties in the case as it has in other criminal cases
        in that court.

R.C. 2152.12(J).
        {¶8}   Therefore, even assuming Petitioner’s assertion that he was 16 or 17
years old when he committed the crimes in 2009 and 2010, his habeas claim is
undermined by R.C. 2152.12(J) – it is undisputed that he was over the age of 21 when
he was prosecuted. The juvenile court clearly would not have had jurisdiction over his
case.
Case No. 17 NO 0457                                                                    –4–


         {¶9}   Accordingly, Petitioner’s petition for a writ of habeas corpus is dismissed.
Costs taxed to Petitioner. Final order. Clerk to serve notice as provided by the Civil
Rules.

JUDGE GENE DONOFRIO, Concurs.

JUDGE CHERYL L. WAITE, Concurs.

JUDGE CAROL ANN ROBB, Concurs.
