[Cite as State v. Wright, 2016-Ohio-5722.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                             HIGHLAND COUNTY

STATE OF OHIO,                  :
                                :   Case No. 15CA14
     Plaintiff-Appellee,        :
                                :
     vs.                        :   DECISION AND JUDGMENT
                                :   ENTRY
DELANIO WRIGHT,                 :
                                :
     Defendant-Appellant.       :   Released: 09/01/16
_____________________________________________________________
                          APPEARANCES:

Delanio Wright, Chillicothe, Ohio, Pro Se Appellant.

Anneka Collins, Highland County Prosecuting Attorney, and James Roeder,
Assistant Prosecuting Attorney, Hillsboro, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Delanio Wright appeals the trial court's denial of his motion for

declaratory judgment, which the court construed as a petition for habeas

corpus. On appeal, Appellant contends that the trial court failed to review

his claim of a due process violation because Appellant is under the "old

law." Because Appellant's petition suffered from multiple fatal filing

defects, the trial court should have dismissed it on procedural grounds.

Further, because Appellant's petition fails on procedural grounds, we do

reach the merits of his sole assignment of error. However, because the trial
Highland App. No. 15CA14                                                          2

court denied the petition on the merits, we reverse the judgment of the trial

court and remand this matter with instructions to dismiss the petition.

                                    FACTS

      {¶2} We take the bulk of Appellant's factual and case history from the

State's brief, as there appears to be an extensive criminal history relevant to

this matter that did not occur in Highland County and is not part of the actual

record presently before us on appeal. Appellant was originally convicted in

Highland County on June 16, 1994 after pleading guilty to three felony

offenses. He was sentenced on July 20, 1994 to a term of incarceration of

sixteen to fifty years. Appellant's convictions were later affirmed on appeal.

      {¶3} Both Appellant and the State represent to this Court that

Appellant was released to transitional control after serving approximately

twelve and one-half years of his sentence. It appears, according to the State,

that Appellant violated his parole as a result of the commission of four new

felonies in Franklin County in 2007, that Appellant was convicted for the

Franklin County offenses, and that the convictions were affirmed on appeal.

The State further represents that Appellant was subsequently sanctioned with

a nine-month prison term by the Adult Parole Authority in connection with a

May 24, 2012 motion filed by Appellant requesting judicial release.

However, Appellant was apparently released by 2013, because both the State
Highland App. No. 15CA14                                                         3

and Appellant represent to this Court that Appellant was arrested and

charged with additional felonies in Scioto County in April of 2013.

According to paperwork attached to a pleading filed by Appellant in the

Highland County court, another parole revocation hearing was held in June

of 2013, Appellant's parole was revoked and the Adult Parole Authority

imposed a thirty-six month prison term as a parole violation sanction.

      {¶4} It appears from the online Scioto County docket and also the

State's brief that that Scioto County case was initially filed, dismissed, and

then re-filed. Appellant entered into a plea agreement on the re-filed

indictment and was sentenced to two twelve-month prison terms to be served

consecutively, but those convictions were subsequently vacated and a

superseding indictment was filed. Appellant again pled guilty and was

sentenced on July 6, 2015 to two twelve-month prison terms to be served

consecutively.

      {¶5} Prior to his sentencing in Scioto County, on June 4, 2015

Appellant filed a pleading entitled "Declaratory Judgment" in the Highland

County Court of Common Pleas, the court where his original convictions

occurred. The pleading claimed Appellant was being illegally confined by

the Adult Parole Authority and sought release from confinement. The trial

court construed Appellant's pleading to be a petition for habeas corpus and
Highland App. No. 15CA14                                                         4

denied the petition. It is from the denial of his petition that Appellant now

brings the current appeal, setting forth one assignment of error for our

review.

                        ASSIGNMENT OF ERROR

“I.   THE COURT FAILED TO REVIEW THE DEFENDANTS [SIC]
      CLAIM OF A DUE PROCESS VIOLATION: BECAUSE THE
      DEFENDANT IS UNDER THE OLD LAW.”

                            LEGAL ANALYSIS

      {¶6} In his first assignment of error, Appellant contends that the trial

court erred when it failed to review his claim of a due process violation

because he is under the "old law." Appellant argues that the most recent

violation of his parole resulted in the Adult Parole Authority imposing a

thirty-six month prison sanction upon him when it should have only been

permitted to impose a nine-month prison sanction upon him. Appellant

relies upon Chapter 2967 of the Ohio Revised Code in support of his

argument. He specifically argues that R.C. 2967.28(F)(3) provides that the

period of a prison term imposed as a sanction shall not exceed nine months.

He contends that this provision applies to persons upon whom a court

imposed a prison term prior to, on, or after July 1, 1996. He finally argues

that "all pre-S.B.2 sentenced people are receiving this kind of treatment[,]"

meaning that other offenders sentenced prior to July 1, 1996 are routinely
Highland App. No. 15CA14                                                         5

having sanctions of more than nine months imposed upon them for parole

violations. However, based upon the following, we do not reach the merits

of Appellant's assignment of error.

      {¶7} As set forth above, on June 4, 2015, Appellant filed a pro se

pleading entitled "Declaratory Judgment." Because that motion essentially

argued that Appellant was being held beyond the time limits provided for in

Chapter 2967 of the Ohio Revised Code and sought an immediate release

from confinement, the trial court construed the motion as a petition for

habeas corpus. The trial court went on to state that "habeas corpus is

generally not available to challenge parole conditions that allegedly restrain

a petitioner's liberty[,]" and then denied the petition on the merits.

      {¶8} Declaratory judgment is an appropriate means to declare actions

of the Adult Parole Authority illegal. McGrath v. Ohio Adult Parole

Authority, 8th Dist. Cuyahoga No. 84362, 2004-Ohio-6114. However, it

appears when an offender is still incarcerated or being held and is seeking

immediate release from confinement, a petition for habeas corpus is now

considered the proper means of redress with respect to revocation of parole

by the Adult Parole Authority. State ex rel. Jackson v. McFaul, 73 Ohio

St.3d 185, 652 N.E.2d 746 (1995) (habeas corpus will lie to challenge a

decision of the Adult Parole Authority in extraordinary cases involving
Highland App. No. 15CA14                                                                                  6

parole revocation, but finding this particular case not to be one of those

extraordinary cases.)1; Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-

126, 844 N.E.2d 301 (superseded by statute, on other grounds) ("Habeas

corpus will lie to challenge certain decisions of the Adult Parole Authority

because there is no remedy of appeal available."). Although we agree with

the trial court's decision to construe Appellant's pleading as a petition for

habeas corpus, we disagree with the trial court's statement that such petition

is not appropriate to challenge parole conditions. Nevertheless, the trial

court went on to address Appellant's argument on the merits and denied

Appellant's petition.

        {¶9} As indicated above, for the reasons that follow, we conclude

Appellant's petition should have been dismissed on procedural grounds

rather than denied on the merits. Habeas corpus petitions are governed by

R.C. 2725. They are available to a person who is “unlawfully restrained of

his liberty ... to inquire into the cause of such imprisonment, restraint, or

deprivation.” R.C. 2725.01. An individual may petition for a writ of habeas

corpus if his maximum sentence has expired and he is being held unlawfully.

State v. Wilburn, 4th Dist. Lawrence No. 98CA47, 1999 WL 1281507 (Dec.



1
  State ex rel. Jackson v. McFaul, overruled Stahl v. Shoemaker, et al., 50 Ohio St.2d 351, 364 N.E.2d 286,
which held that "[h]abeas corpus is not available to review an action taken by the Adult Parole Authority."
(internal citation omitted).
Highland App. No. 15CA14                                                         7

22, 1999); Frazier v. Strickrath, 42 Ohio App.3d 114, 115-116, 536 N.E.2d

1193 (4th Dist.1988).

      {¶10} A habeas corpus petition must conform to certain statutory

requirements. It must be signed and verified, and it must specify: (A) that

the petitioner is imprisoned or restrained of his liberty; (B) the name of the

person restraining the petitioner, if known; (C) the place the petitioner is

imprisoned or restrained, if known; and (D) it must include a copy of the

commitment papers, if the commitment papers can be obtained without

impairing the efficiency of the remedy. R.C. 2725.04 and R.C. 2969.25.

Further, this Court has noted that the failure to comply with the provisions of

R.C. 2969.25 requires the dismissal of the action. Washington v. Morgan,

4th Dist. Scioto No. 14CA3664, 2014-Ohio-5834, ¶ 9; Clay v. Hooks, 4th

Dist. Ross No. 15CA3476, 2015-Ohio-1372, ¶ 12 ("A petitioner's failure to

attach all pertinent commitment papers renders the petition fatally

defective."); citing Tucker v. McAninch, 82 Ohio St.3d 423, 696 N.E.2d 595

(1998) (additional citations omitted). We review a trial court's grant or

denial of habeas corpus under a de novo standard. Hart v. Hudson, 4th Dist.

Pickaway No. 10CA19, 2010-Ohio-5954, ¶ 12; citing Tierney v. Tierney,

11th Dist. Trumbull No. 2007-T-0095, 2008-Ohio-2755, ¶ 15; citing Young
Highland App. No. 15CA14                                                          8

v. Brunsman, 4th Dist. Ross No. 06CA2938, 2008-Ohio-64, at ¶ 13 (other

citations omitted).

      {¶11} Here, Appellant's petition did not include a copy of his

commitment papers nor is his petition verified as required by R.C. 2725.04.

Further, although Appellant referenced convictions in other counties and

previous parole revocations and sanctions, he failed to file an affidavit that

contained a description of each civil action or appeal he has filed in the past

five years as required by R.C. 2969.25(A). Thus, Appellant's petition was

defective for failure to comply with the filing requirements set forth in both

R.C. 2725.04 and 2960.25(A) and should have been dismissed on procedural

grounds by the trial court, rather than denied on the merits.

      {¶12} Further, even if Appellant's petition had satisfied the filing

requirements, we find Appellant failed to establish he was entitled to habeas

corpus relief for additional procedural, rather than substantive, reasons.

Although it is not contained in the record before us, we take judicial notice

of the fact that the record in Appellant's 2013 Scioto County criminal case,

identified on the Scioto County docket as 13CR000776B, states that

Appellant was arrested and charged with multiple felonies on April 30,

2013. Ogle v. Hocking Cty. Sheriff, 4th Dist. Hocking No. 11AP13, 2012-

Ohio-1768, ¶ 2; citing Hart v. Hudson, supra, at ¶ 26 (stating that “a court of
Highland App. No. 15CA14                                                                                   9

appeals may take judicial notice of findings and judgments as rendered in

other Ohio cases”) (internal quotation omitted). The appellate record before

us reveals that a parole revocation hearing was held on June 10, 2013.

Appellant's parole was revoked by the Adult Parole Authority on June 27,

2013, and a thirty-six month prison sanction was imposed upon him at that

time. The paperwork Appellant attached to his petition below indicates

Appellant's thirty-six month sanction would be completed in May of 2016, at

which time Appellant would be eligible for release consideration. Thus, at

this time, Appellant has already completed this thirty-six month prison

sanction and the question of whether he is being illegally confined by the

Adult Parole Authority is moot.2

         {¶13} Additionally, Appellant cannot demonstrate he is now entitled

to immediate release as he is still serving the twenty-four month sentence

imposed by the Scioto County Common Pleas Court. Taking judicial notice

of the Ohio Department of Rehabilitation and Corrections website, it appears

that Appellant was admitted to prison and began serving his Scioto County

sentence on July 7, 2015, and he is not scheduled to complete that sentence

until December 18, 2016. State v. Bell, 2nd Dist. Montgomery No. 24665,

2011-Ohio-6799 (taking judicial notice that an offender’s name no longer

2
 It is appropriate to consider evidence outside the appellate record in determining whether an appeal is
moot or justiciable. State v. Popov, 4th Dist. Lawrence No. 10CA26, 2011-Ohio-372, ¶ 4.
Highland App. No. 15CA14                                                     10

appeared on the Ohio Department of Rehabilitations and Corrections

website). Thus, Appellant is not entitled to immediate release from

confinement as he is still serving a court-imposed sentence. Habeas will not

lie where the petitioner cannot demonstrate he is entitled to immediate

release from confinement. “ ‘[H]abeas corpus is proper in the criminal

context only if the petitioner is entitled to immediate release from prison or

some other physical confinement.’ ” Keith v. Bobby, 117 Ohio St.3d 470,

2008-Ohio-1443, 884 N.E.2d 1067, ¶ 12; quoting Scanlon v. Brunsman, 112

Ohio St.3d 151, 2006-Ohio-6522, 858 N.E.2d 411, ¶ 4.

      {¶14} Accordingly, because Appellant's petition suffered from

multiple fatal filing defects, the trial court should have dismissed it on

procedural grounds. However, because the trial court denied the petition on

the merits, we reverse the judgment the trial court and remand this matter

with instructions to dismiss the petition.


                                             JUDGMENT REVERSED AND
                                             REMANDED.
Highland App. No. 15CA14                                                       11

Harsha, J., dissenting:

       {¶15} I disagree with the portion of the opinion adopting “the bulk of

Appellant’s factual and case history from the State’s brief” insofar as these

facts are not supported by either the record on appeal or facts that are

susceptible of judicial notice.

       {¶16} Moreover, I disagree with the majority’s suggestion that the

trial court was incorrect when it stated that habeas corpus is generally not

available to challenge parole conditions. See generally Sullivan v. Bunting,

133 Ohio St.3d 81, 2012-Ohio-3923, 975 N.E.2d 999, ¶ 15 (“habeas corpus

is generally not available to challenge parole conditions that allegedly

restrained a petitioner's liberty”).

       {¶17} The majority opinion is correct that the merits of Wright’s

claim were not properly before the trial court because the petition was fatally

defective and subject to dismissal because it did not comply with the

verification and commitment-paper requirements of R.C. 2725.04. See

Hughley v. Saunders, 123 Ohio St.3d 90, 2009-Ohio-4089, 914 N.E.2d 317,

¶ 1. However, I would simply affirm the judgment denying the petition,

albeit on the procedural basis noted by the majority. See State v. Marcum,

4th Dist. Hocking No. 14CA13, 2014-Ohio-5373, ¶ 27, quoting Stammco,

L.L.C. v. United Tel. Co. of Ohio, 136 Ohio St.3d 231, 2013-Ohio-3019, 994
Highland App. No. 15CA14                                                 12

N.E.2d 408, ¶ 51 (“ ‘a reviewing court should not reverse a correct judgment

merely because it is based on erroneous reasons’ ”).
Highland App. No. 15CA14                                                       13

                           JUDGMENT ENTRY

    It is ordered that the JUDGMENT BE REVERSED AND CAUSE
REMANDED and that Appellant recover of Appellee any costs herein.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Highland County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Abele, J.: Concurs in Judgment Only.
Harsha, J.: Dissents with Dissenting Opinion.

                                        For the Court,

                                 BY: ______________________________
                                     Matthew W. McFarland, Judge

                      NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
                   the date of filing with the clerk.
