Summary
In Hammond, we allowed the writ and after treating a motion to dismiss as a return, remanded the petitioner to custody without an evidentiary hearing or an order under R.C. 2725.09 and 2725.10 commanding the petitioner's physical presence before the court.
Summary of this case from Gaskins v. ShiplevyOpinion
No. 91-1686
Submitted November 12, 1991 —
Decided May 20, 1992.
IN HABEAS CORPUS.
In his petition for a writ of habeas corpus, petitioner, Billy R. Hammond, states that, although first incarcerated in the Clinton County Jail and thereafter in the Lebanon Correctional Institute, he has never been charged, indicted, or convicted of any crime, and that no court has ever obtained jurisdiction over him.
Respondent filed a motion to dismiss attaching copies of certified court documents showing that in 1987 petitioner was indicted on three counts of attempted murder, one with a firearm specification, and one count of aggravated burglary with a firearm specification; that he was convicted of three counts of felonious assault and the firearm specification, and the aggravated burglary with firearm specification; and that he was sentenced to concurrent terms on all convictions.
Petitioner then filed a motion for summary judgment contending that the indictment was insufficient in general terms, did not conclude "against the peace and dignity of the state of Ohio," and was not signed by the foreman of the grand jury.
Billy R. Hammond, pro se. Lee I. Fisher, Attorney General, and John J. Gideon, for respondent.
For the following reasons, we grant the writ, but deny relief and remand petitioner to custody.
In Lippert v. Engle (1977), 49 Ohio St.2d 281, 3 O.O.3d 434, 361 N.E.2d 239, we held that to withstand a motion to dismiss, a petition in habeas corpus must conform to R.C. 2725.04 and attack the jurisdiction of the sentencing court. We find the petition in this case barely adequate to meet this existing standard and grant the writ pursuant to R.C. 2725.06.
R.C. 2725.04 states:
"Application for the writ of habeas corpus shall be by petition, signed and verified either by the party for whose relief it is intended, or by some person for him, and shall specify:
"(A) That the person in whose behalf the application is made is imprisoned, or restrained of his liberty;
"(B) The officer, or name of the person by whom the prisoner is so confined or restrained; or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation and the person who is served with the writ is deemed the person intended;
"(C) The place where the prisoner is so imprisoned or restrained, if known;
"(D) A copy of the commitment or cause of detention of such person shall be exhibited, if it can be procured without impairing the efficiency of the remedy; or, if the imprisonment or detention is without legal authority, such fact must appear."
R.C. 2725.06 states:
"When a petition for a writ of habeas corpus is presented, if it appears that the writ ought to issue, a court or judge authorized to grant the writ must grant it forthwith."
Normally, the granting of the writ would cause us to order respondent to make a return pursuant to R.C. 2725.12 and 2725.14. However, we treat respondent's motion to dismiss as a return of the writ and remand petitioner to custody. See State, ex rel. Spitler, v. Seiber (1968), 16 Ohio St.2d 117, 45 O.O.2d 463, 243 N.E.2d 65.
R.C. 2725.12 states:
"The officer or person to whom a writ of habeas corpus is directed shall convey the person imprisoned or detained, and named in the writ, before the judge granting the writ, or, in case of his absence or disability, before some other judge of the same court, on the day specified in the writ. Said officer or person shall make due return of the writ, together with the day and the cause of the caption and detention of such person, according to its command."
R.C. 2725.14 states:
"When the person to be produced under a writ of habeas corpus is imprisoned or restrained by an officer, the person who makes the return shall state therein, and in other cases the person in whose custody the prisoner is found shall state, in writing, to the court or judge before whom the writ is returnable, plainly and unequivocally:
"(A) Whether or not he has the prisoner in his custody or power or under restraint.
"(B) If the prisoner is in his custody or power or under restraint, he shall set forth, at large, the authority, and the true and whole cause, of such imprisonment and restraint, with a copy of the writ, warrant, or other process upon which the prisoner is detained.
"(C) If such prisoner was in his custody or power or under restraint, and such custody or restraint was transferred to another, he shall state particularly to whom, at what time, for what cause, and by what authority such transfer was made."
The return, supported by the proper authenticated documents, establishes the jurisdiction of the trial court to have sentenced petitioner, notwithstanding his attack on the indictment in his motion for summary judgment. In State v. Wozniak (1961), 172 Ohio St. 517, at 522-523, 18 O.O.2d 58, at 61, 178 N.E.2d 800, at 804, we held that an indictment cannot be collaterally attacked after a judgment of conviction "because the judgment of conviction necessarily binds a defendant, where the court rendering it had jurisdiction of the person of the defendant and also jurisdiction of the subject matter, i.e., jurisdiction to try the defendant for the crime for which he was convicted. * * *"
See, also, State, ex rel. Hadlock, v. McMackin (1991), 61 Ohio St.3d 433, 575 N.E.2d 184.
Moreover, had petitioner disclosed his claim with particularity, the writ would not have been granted under R.C. 2725.06 because it would not have appeared from the petition that the writ ought to issue. Accordingly, we hold, consistent with other recent decisions, that to avoid dismissal under R.C. 2725.06, a petition filed by or on behalf of a petitioner "alleged to be restrained of his liberty [who] is in the custody of an officer under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record * * *" must state with particularity why the court or magistrate lacked jurisdiction to enter the process, judgment, or order. Otherwise, it will appear that the writ ought not to be granted, and the petition will be dismissed pursuant to R.C. 2725.06.
See Byrd v. Faber (1991), 57 Ohio St.3d 56, 565 N.E.2d 584, and Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 532 N.E.2d 753. In Mitchell, we stated that "[u]nsupported conclusions that appellant committed an intentional tort are not taken as admitted by a motion to dismiss and are not sufficient to withstand such a motion. * * *" (Emphasis sic.) Id. at 193, 532 N.E.2d at 756.
See R.C. 2725.05.
We note that granting the writ merely means to order a return and hold a hearing. See In re Gentry (1982), 7 Ohio App.3d 143, 146, 7 OBR 187, 189-190, 454 N.E.2d 987, 990, at fn. 1.
Accordingly, we remand the petitioner to custody.
Writ allowed; petitioner remanded to custody.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.