[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Whitt v. Harris, Slip Opinion No. 2019-Ohio-4113.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.


                          SLIP OPINION NO. 2019-OHIO-4113
   THE STATE EX REL. WHITT, APPELLANT, v. HARRIS, WARDEN, APPELLEE.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
                    it may be cited as State ex rel. Whitt v. Harris,
                          Slip Opinion No. 2019-Ohio-4113.]
Habeas corpus—Claims arguing lack of jurisdiction barred by res judicata—
        Failure to prove venue not cognizable in habeas corpus—Habeas corpus
        not available to challenge sufficiency of the evidence—Court of appeals’
        denial of writ affirmed.
     (No. 2019-0121—Submitted June 11, 2019—Decided October 8, 2019.)
   APPEAL from the Court of Appeals for Warren County, No. CA2018-09-112.
                                    ________________
        Per Curiam.
        {¶ 1} Appellant, Stephen H. Whitt, appeals the decision of the Twelfth
District Court of Appeals denying his petition for a writ of habeas corpus against
Chae Harris, warden of the Lebanon Correctional Institution. We affirm.
                                         Background
        {¶ 2} In 2009, a Coshocton County grand jury issued a four-count
indictment against Whitt for the alleged rape and sexual battery of his wife’s
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granddaughter. Count one charged him with the rape of a victim under the age of
13, in violation of R.C. 2907.02(A)(1)(b). Count two charged him with a separate
rape “by force or threat of force,” in violation of R.C. 2907.02(A)(2). And counts
three and four alleged sexual battery.
       {¶ 3} Whitt was found guilty on all counts after a bench trial. The court of
appeals affirmed his convictions but remanded for a new sentencing hearing. State
v. Whitt, 5th Dist. Coshocton No. 10-CA-10, 2011-Ohio-3022, ¶ 88, appeal not
accepted, 130 Ohio St.3d 1417, 2011-Ohio-5605, 956 N.E.2d 309. On remand, the
trial court merged the sexual-battery counts with the rape counts before
resentencing Whitt, and the court of appeals affirmed. State v. Whitt, 5th Dist.
Coshocton No. 12-CA-3, 2012-Ohio-3094, ¶ 4, 24.
       {¶ 4} On September 7, 2018, Whitt filed a petition for a writ of habeas
corpus in the Twelfth District Court of Appeals, alleging that his convictions were
void for lack of subject-matter jurisdiction. According to Whitt, the evidence at
trial showed that the count-one rape occurred in Sunbury, Ohio (Delaware County),
the count-two rape happened in Pennsylvania, the location of the sexual battery
alleged in count three was never established, and the count-four sexual battery
occurred in either Tennessee or Kentucky. Whitt argues that because none of the
crimes occurred in Coshocton County, the common pleas court lacked jurisdiction
to convict him, therefore entitling him to a writ of habeas corpus compelling his
immediate release.
       {¶ 5} Warden Harris filed a motion for summary judgment, which the court
of appeals granted. The court of appeals determined that Whitt’s claims were
barred by res judicata and denied the writ on that basis. Whitt appealed.
                                      Analysis
       {¶ 6} To be entitled to a writ of habeas corpus, a petitioner must show that
he is being unlawfully restrained of his liberty and that he is entitled to immediate
release from prison or confinement. R.C. 2725.01; State ex rel. Cannon, 155 Ohio




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St.3d 213, 2018-Ohio-4184, 120 N.E.3d 776, ¶ 10. “[H]abeas corpus is generally
available only when the petitioner’s maximum sentence has expired and he is being
held unlawfully.” Heddleston v. Mack, 84 Ohio St.3d 213, 214, 702 N.E.2d 1198
(1998). As is true for every extraordinary writ, habeas corpus is not available when
there is an adequate remedy in the ordinary course of law. Billiter v. Banks, 135
Ohio St.3d 426, 2013-Ohio-1719, 988 N.E.2d 556, ¶ 8. “However, there is a
limited exception to the adequate-remedy requirement: ‘when a court’s judgment
is void because it lacked jurisdiction, habeas is still an appropriate remedy despite
the availability of appeal.’ ” Leyman v. Bradshaw, 146 Ohio St.3d 522, 2016-Ohio-
1093, 59 N.E.3d 1236, ¶ 9, quoting Gaskins v. Shiplevy, 74 Ohio St.3d 149, 151,
656 N.E.2d 1282 (1995). We review a summary-judgment decision denying a writ
of habeas corpus de novo. See State ex rel. Shafer v. Wainwright, 156 Ohio St.3d
559, 2019-Ohio-1828, 130 N.E.3d 268, ¶ 7.
       {¶ 7} According to Whitt, he was convicted of count two, rape “by force or
threat of force” under R.C. 2907.02(A)(2), based on conduct that occurred entirely
in Pennsylvania. This claim is barred by res judicata.
       {¶ 8} In the direct appeal of his convictions, Whitt’s first assignment of
error was that “the trial court lacked statutory jurisdiction under R.C. 2901.11 to
consider the second and fourth incidents as the alleged sexual conduct occurred
outside the state of Ohio.” Whitt, 2011-Ohio-3022, at ¶ 17, 23. The court of appeals
rejected this argument on the merits. Id. at ¶ 38. Whitt then sought discretionary
review in this court, and the central issue he raised in his unsuccessful petition was
the trial court’s alleged lack of jurisdiction over a rape committed outside Ohio.
See memorandum in support of jurisdiction in State v. Whitt, case No. 2011-1236.
       {¶ 9} A petitioner “may not use habeas corpus to gain successive appellate
reviews of the same issue.” State ex rel. Rash v. Jackson, 102 Ohio St.3d 145,
2004-Ohio-2053, 807 N.E.2d 344, ¶ 12 (holding that prisoner could not raise in
habeas corpus a claim already raised in his direct appeal).          Because Whitt



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challenged the trial court’s jurisdiction to convict him on the forcible-rape charge
in his direct appeal, his habeas claim based on the same theory is barred by res
judicata. See Wells v. Hudson, 113 Ohio St.3d 308, 2007-Ohio-1955, 865 N.E.2d
46, ¶ 7.
           {¶ 10} Whitt’s argument concerning count one is a challenge to venue, not
jurisdiction. He concedes that the conduct charged in count one occurred in Ohio.
He claims a right to have his trial occur in the county where the alleged crime
occurred (Delaware County) and concludes that it was error to try him in Coshocton
County. Venue is not a jurisdictional element of a criminal offense. State v.
Crawford, 5th Dist. Richland No. 18CA79, 2019-Ohio-273, ¶ 17. A criminal
defendant who fails to object to venue at trial waives all but plain error. State v.
Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, ¶ 142. And
because failure to prove venue must be raised on direct appeal, the issue is not
cognizable in habeas corpus. Cook v. Maxwell, 2 Ohio St.2d 107, 108-109, 206
N.E.2d 558 (1965). Thus, Whitt’s challenge to his count-one conviction on the
basis of venue is barred by res judicata.
           {¶ 11} Finally, Whitt challenges the trial court’s jurisdiction to convict him
of sexual battery under count three (location unknown) and count four (Tennessee
or Kentucky). The gravamen of his argument regarding count three is that the state
failed to prove that the conduct occurred in Ohio, which appears to be a challenge
to the sufficiency of the evidence. Habeas corpus is not available to challenge the
sufficiency of the evidence. State ex rel. Tarr v. Williams, 112 Ohio St.3d 51, 2006-
Ohio-6368, 857 N.E.2d 1225, ¶ 4. And res judicata bars his jurisdictional challenge
to count four because it was part of his direct appeal.
           {¶ 12} Moreover, even if Whitt’s jurisdictional challenges to counts three
and four had merit, he would not be entitled to habeas corpus relief. “[H]abeas
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).




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Whitt’s rape convictions (counts one and two) included a maximum term of life in
prison, which he has not fully served. See Brooks v. Kelly, 144 Ohio St.3d 322,
2015-Ohio-2805, 43 N.E.3d 385, ¶ 9 (inmate who “has not served his maximum
term of life” is not entitled to habeas relief). Thus, vacating the sexual battery
convictions, which were merged into his rape convictions for sentencing, would not
result in his release from prison.
       {¶ 13} For these reasons, the court of appeals correctly denied the writ of
habeas corpus.
                                                              Judgment affirmed.
       O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
                           _________________________
       Stephen H. Whitt, pro se.
       Dave Yost, Attorney General, and Mary Anne Reese, Assistant Attorney
General, for appellee.
                           _________________________




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