[Cite as Cunningham v. Tibbals, 2015-Ohio-3698.]



                                   IN THE COURT OF APPEALS

                          TWELFTH APPELLATE DISTRICT OF OHIO

                                         MADISON COUNTY




ANTHONY CUNNINGHAM,                                :

        Plaintiff-Appellant,                       :    CASE NO. CA2015-01-003

                                                              AMENDED
                                                   :           OPINION
   - vs -                                                       9/11/2015
                                                   :

TERRY TIBBALS, WARDEN,                             :

        Defendant-Appellee.                        :



        CIVIL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
                           Case No. CVH20140230



Anthony Cunningham, #A384341, London Correctional Institution, P.O. Box 69, London,
Ohio 45140, appellant, pro se

Jerri L. Fosnaught, 150 East Gay Street, 16th Floor, Columbus, Ohio 43215, for appellee



        RINGLAND, J.

        {¶ 1} Petitioner-appellant, Anthony Cunningham, appeals a decision of the Madison

County Court of Common Pleas, denying his petition for a writ of habeas corpus.

        {¶ 2} Following a jury trial in 1999, Cunningham was convicted of four counts of rape,

one count of kidnapping with a sexual motivation, and two counts of gross sexual imposition.

Cunningham acknowledges that the trial court orally sentenced him to serve concurrent
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terms of life in prison for the rape convictions. However, the sentencing entry incorrectly

reflected only a 10-year term on the rape counts.

       {¶ 3} On May 23, 2001, the trial court changed appellant's rape sentences in a

“Corrected Judgment Entry" to properly impose life sentences on Cunningham for the rape

convictions. However, the corrected entry unwittingly sentenced Cunningham to a life

sentence on the kidnapping charge as well. Therefore, on July 6, 2001, the trial court issued

a second amended sentencing entry, wherein the court corrected the sentencing entry to

reflect that Cunningham was sentenced to life for the rape convictions and ten years for the

kidnapping conviction.

       {¶ 4} Subsequently, Cunningham filed a variety of appeals and collateral attacks on

the convictions and sentence. Included among them is a prior habeas corpus petition that

was denied in 2008. On October 3, 2014, Cunningham filed a second petition for writ of

habeas corpus. The trial court denied that petition on two bases: (1) Cunningham had an

adequate alternative legal remedy available, and (2) res judicata barred the petition based on

the previous habeas corpus petition and denial.

       {¶ 5} Cunningham now appeals that decision, raising four assignments of error for

review.

       {¶ 6} Assignment of Error No. 1:

       {¶ 7} IT IS A VIOLATION OF U.S. AND OHIO CONSTITUTIONAL RIGHTS, WHEN

THE LAWFUL SENTENCE EXPIRES UNDER THE CRIMINAL SENTENCING CODE OF

CONVICTION SB2 EXHIBIT AND THE APA CONTINUES UNLAWFUL CONFINEMENT

UNDER ANOTHER CRIMINAL SENTENCING CODE HB261 FOR WHICH NO

CONVICTION WAS OBTAINED, IN AN ATTEMPT TO MAKE THE VOID WORD OF LIFE

UNDER ONE LAW, VALID UNDER THE OTHER. AND CALL IT A HYBRID CASE [SIC].

       {¶ 8} Assignment of Error No. 3:
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       {¶ 9} THE COURT ERRED AND ABUSED IT'S DISCRETION TO THE PREJUDICE

OF APPELLANT IN DENYING RELIEF ON THE CLAIM OF EXPIRED SENTENCE, FOR

WHICH THERE IS NO ADEQUATE ALTERNATIVE LEGAL REMEDY, (DIRECT APPEAL)

OR RES JUDICATA TO BAR THE ISSUE OF EXPIRED TERM/SENTENCE. DECEMBER

15, 1999 FINAL BINDING ENTRY EXPIRED JUNE 16, 2009, ALL OTHER ENTRY'S ARE

VOID, FACIALLY VOID, AND CONTRARY TO LAW.

       {¶ 10} THE VERY USE OF TWO CRIMINAL SENTENCING CODES PROVES VOID

FOR THE SAME OFFENSES (HB261 & SB2 TWO PUNISHMENTS FOR THE SAME

OFFENSES) AND HABEAS RELIEF IS AVAILABLE [SIC].

       {¶ 11} Cunningham's first and third assignments of error attack alleged errors in his

sentencing. A petition for a writ of habeas corpus is generally precluded where there exists

alternative remedies at law. Jackson v. Johnson, 135 Ohio St. 3d 364, 365, 2013-Ohio-999,

¶ 3. Cunningham correctly notes that there is an exception where a judgment is void due to

lack of jurisdiction. Pegan v. Crawmer, 76 Ohio St. 3d 97, 99, 1996-Ohio-419. He argues

that the trial court was without jurisdiction to enter the May 23 and July 6, 2001 corrected

entries, and therefore those entries are void.

       {¶ 12} In the present case, the trial court was not without jurisdiction as a court retains

jurisdiction to correct clerical errors in its judgment entries. Crim.R. 36. See also State v.

Waltz, 12th Dist. Clermont No. CA2013-10-077, 2014-Ohio-2474, ¶ 16. The May 23 and July

6, 2001 entries were filed merely to correct clerical errors and accurately reflect the sentence

that was properly imposed on Cunningham.

       {¶ 13} Cunningham had the opportunity to directly appeal his sentence or attack it

collaterally through a postconviction relief motion. Therefore, as alternative remedies at law

existed, Cunningham's petition is precluded.

       {¶ 14} In light of the foregoing, having found that (1) the judgment was not void due to
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lack of jurisdiction where the trial court entries merely corrected clerical errors, and (2) there

were alternative remedies at law available, Cunningham's first and third assignments of error

are overruled.

       {¶ 15} Assignment of Error No. 2:

       {¶ 16} THE COURT ERRED AND/OR ABUSED IT'S DISCRETION IN DENYING

APPELLANT HABEAS RELIEF, BASED ON REASONS WITHIN THE DEFAULTED CIV.R.

12(B)(6) MOTION, WHEN SUCH DEFENSES AND OBJECTIONS WAS NOT WITHIN THE

COURTS JURISDICTION AND/OR PROPERLY BEFORE THE COURT TO DECIDE, AS

THE REASONS REQUIRED EVIDENCE OUTSIDE THE RECORD AND THE CIV.R.

12(B)(6) MOTION WAS NOT CONVERTED TO SUMMARY JUDGMENT CIV.R. 56, NOR

ANY NOTICE OF DOING SO GIVEN.

       {¶ 17} THEREFORE, APPELLEE HAS WAIVED RES JUDICATA AND ALL OTHER
                    1
AFFIRMATIVE DEFENSES BY NOT RAISING SUCH AFFIRMATIVE DEFENSES AND

OBJECTIONS BY MOTION BEFORE PLEADING PURSUANT TO CIV.R. 12(B), OR

AFFIRMATIVELY IN A RESPONSIVE PLEADING PURSUANT TO CIV.R. 8(C) OR BY

AMENDMENT UNDER CIV.R. 15, AND NOW HAS WAIVED THE RIGHT TO

SUBSEQUENTLY RAISE AFFIRMATIVE DEFENSES, INCLUDING THIS APPEAL [SIC].

       {¶ 18} In his second assignment of error, Cunningham correctly argues that a trial

court commits reversible error when it considers documents outside the pleadings in deciding

a motion to dismiss on the basis of res judicata without first converting the motion to a motion

for summary judgment and giving the parties notice of the change. State ex rel. Boggs v.

Springfield Local School Dist. Bd. Of Edn., 72 Ohio St.3d 94, 1995-Ohio-202; Jefferson v.




1. EXCEPT FOR FAILURE TO STATE A CLAIM FOR WHICH RELIEF MAY BE GRANTED [SIC].


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Bunting, 140 Ohio St.3d 62, 2014-Ohio-3074, ¶ 10-14. Here, the trial court considered
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evidence outside the record in denying the present petition on the basis of res judicata.

        {¶ 19} Were that the sole basis of the trial court's decision, we would be required to

reverse the decision. However, the trial court only relied on res judicata as an alternative to

its initial reasoning for denying the petition: that there was an adequate alternative legal

remedy available. Therefore, while the trial court erred in relying on documents outside the

pleadings to dismiss the petition on the basis of res judicata, that error was harmless as the

petition was properly denied on alternative grounds.

        {¶ 20} In light of the foregoing, having found that the trial court's error in relying on

documents outside the pleadings to dismiss the petition on the basis of res judicata was

harmless, Cunningham's second assignment of error is overruled.

        {¶ 21} Assignment of Error No. 4:

        {¶ 22} IT IS UNLAWFUL RESTRAINT BY THE APA NOT PROVIDING A

MEANINGFUL PAROLE HEARING EVERY TWO YEARS PURSUANT TO SB2, 2971.04,

THE WORD LIFE AS USED ON APPELLANT, DOES NOT COMPLY WITH STATUTORILY

MANDATED TERMS OF 2929.13(F) AND IS VOID AB INITIO, AND ALLOWS HABEAS

RELIEF DESPITE AN ALTERNATIVE LEGAL REMEDY [SIC].

        {¶ 23} A review of the record reveals that Cunningham failed to raise this issue to the

trial court in his petition for writ of habeas corpus below. Accordingly, Cunningham has

waived this argument on appeal by failing to raise it in his petition. Bozsik v. Hudson, 110

Ohio St. 3d 245, 2006-Ohio-4356, ¶ 11. Cunningham's fourth assignment of error is

therefore overruled.

        {¶ 24} Judgment affirmed.


2. Cunningham's prior petition for writ of habeas corpus.


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M. POWELL, P.J., and S. POWELL, J., concur.




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