[Cite as Smith v. Sheldon,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: EDDIE LEE SMITH : Hon. W. Scott Gwin, P. J. : Hon. Patricia A. Delaney, J. Petitioner-Relator : Hon. Craig R. Baldwin, J. : -vs- : : Case No. 18CA47 EDWARD SHELDON : : Respondent : OPINION

CHARACTER OF PROCEEDING: Writ of Habeas Corpus

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: August 8, 2018

APPEARANCES:

For Petitioner-Relator For Respondent

EDDIE LEE SMITH PRO SE JERRI FOSNAUGHT #691507 Assistant Attorney General Mansfield Correction Institution Criminal Justice Section 1150 North Main St. 150 East Gay Street, 16th Floor Mansfield, OH 44901 Columbus, OH 43215 [Cite as Smith v. Sheldon,

.]

Gwin, P.J.

{¶1} Petitioner, Eddie Lee Smith, has filed a Petition for Writ of Habeas Corpus

arguing he must be released from prison because his sentences are void. Respondent

has filed a Motion to Dismiss.

{¶2} Petitioner argues his sentences are void because (1) the trial court

improperly imposed community control and a prison sentence for the same convictions,

(2) his plea was not knowing, intelligent and voluntary, (3) he was not notified of his right

to appeal, and (4) the trial court failed to include a 58(B) notice in the trial court’s June 1,

2016 entry of conviction.

FACTS

{¶3} Petitioner is imprisoned pursuant to his convictions in Summit County

Common Pleas Court, Case Numbers CR 2015 09 2837 and CR 2015 12 3774.

{¶4} In CR 2015 09 2837, Petitioner was convicted of one count of robbery and

one count of weapons under disability. He was given a community control sanction of 24

months on both counts. The sentencing entry indicated that the trial court “reserved” 36

months in prison should Petitioner violate the terms of community control. Five months

after his initial sentence, Petitioner was found to have violated community control and

received a 36 month prison sentence ordered to be served consecutive to the sentence

in Case Number CR 2015 12 3774.

{¶5} In CR 2015 12 3774, Petitioner was convicted of obstructing justice. He

initially received a community control sanction wherein the judgment entry indicated a

prison term of 12 months was “reserved” should Petitioner violate the terms of community Richland County, Case No. 18CA47 3

control. He was found to have violated community control and received a sentence of 12

months in prison consecutive to Case Number CR 2015 09 2837.

HABEAS CORPUS

{¶6} R.C. 2725.01, which establishes which persons are entitled to a writ of

habeas corpus, states “[w]hoever is unlawfully restrained of his liberty, or entitled to the

custody of another, of which custody of such person is unlawfully deprived, may

prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment,

restraint, or deprivation.”

{¶7} A writ of habeas corpus will generally lie only when a prisoner can show

that his/her confinement is illegal because the trial court never had the requisite

jurisdiction to convict or his/her sentence has expired. McKay v. Gansheimer, 11th Dist.

No.2003–A–0123, 2004–Ohio–4284. A writ of habeas corpus is an extraordinary writ

which may not be used if an adequate remedy at law exists. Heddleston v. Mack,

(1998); Burch v. Perini,

(1981). Sentencing errors by a trial

court that had proper jurisdiction cannot be remedied by extraordinary writ. Majoros v.

Collins,

(1992). Habeas corpus is not a substitute for appeal or post-

conviction relief. Daniel v. State,

, 2003–Ohio–1916.

DUAL SENTENCES

{¶8} Petitioner claims the trial court lacked jurisdiction to sentence him to both

community control and prison at the same time, however, the trial court did not sentence

him to both at the same time. Initially, he was sentenced to community control.

Thereafter, when he was found to have violated community control, he was sentenced to

prison. Petitioner argues when the trial court initially granted community control and Richland County, Case No. 18CA47 4

“reserved” a prison sentence in the event of violation of community control this equated

to both a sentence of community control and a sentence of prison simultaneously. Any

challenge to the propriety of the sentence could have been challenged on appeal. An

appeal provides an adequate remedy at law which precludes the issuance of the writ of

habeas corpus.

{¶9} “Like other extraordinary-writ actions, habeas corpus is not available when

there is an adequate remedy in the ordinary course of law.” In re Complaint for Writ of

Habeas Corpus for Goeller,

, 2004–Ohio–5579,

, ¶ 6.

VALIDITY OF PLEA

{¶10} Next, Petitioner claims his sentence is void because his guilty plea was not

valid because it was not knowingly, intelligently, and voluntarily made. The Supreme

Court has held, “[W]hether appellant made a guilty plea knowingly and voluntarily is a

matter to be resolved at post-conviction proceedings or on direct appeal . . . Habeas

corpus is not a substitute for appeal.” Pollock v. Morris,

,

(1988).

{¶11} Petitioner could have raised the issue of the validity of his plea on direct

appeal or in post-conviction proceedings. Therefore, habeas corpus does not lie.

NOTIFICATION OF APPELLATE RIGHTS

{¶12} The failure of a trial court to advise of appellate rights would result in a

resentencing and not release from prison. State v. Hunter, 8th Dist. Cuyahoga No. 92626,

.

{¶13} “A trial court's failure to notify a defendant concerning appeal rights,

however, does not render a sentence void. State v. Barnes, 12th Dist. No. CA2014–03– Richland County, Case No. 18CA47 5

049, 2015–Ohio–651, ¶ 27” State v. Smotherman, 10th Dist. Franklin No. 16AP-471,

.

{¶14} Habeas Corpus does not lie based upon the failure of a trial court to notify

a defendant of appellate rights.

INSTRUCTIONS TO THE CLERK PURSUANT TO CIV.R. 58(B)

{¶15} Finally, Petitioner argues he is entitled to release because the trial court

failed to issue instructions to the clerk for service as required by Civ.R. 58(B). Specifically,

he argues the trial court’s entry of June 1, 2016 should have contained a Civ. R. 58 (B)

notice to the clerk for service. The June 1, 2016 entry is an entry of conviction in a criminal

case. Rule 58(B) is found in the civil rules and is inapplicable to sentencing entries.

{¶16} “Civ.R. 58(B) is not applicable to a criminal action or judgment. Henderson

v. Saffold, 8th Dist. No. 100406,

, citing State ex rel. Aziz v. Fuerst,

8th Dist. No. 78018,

,

(Aug. 24, 2000).

However, Civ.R. 58(B) does apply to decisions on postconviction petitions. State v.

Nichols,

,

(1984), paragraph two of the syllabus

(“Postconviction relief proceedings will be governed by the Ohio Rules of Appellate

Procedure as applicable to civil actions.”); see also State v. Tucker, 8th Dist. No. 95556,

, ¶ 9–14; State v. McKinney, 3d Dist. No. 4-11-01,

, ¶

12–17.” State v. Barber, 10th Dist. Franklin No. 16AP-172,

, appeal

not allowed,

,

,

, ¶ 14.

{¶17} Because the judgment entry of June 1, 2016 is the sentencing entry and not

an entry relative to post-conviction relief, service pursuant to Civ.R. 58(B) is inapplicable. Richland County, Case No. 18CA47 6

{¶18} Petitioner has not demonstrated he is entitled to release from prison and

has not demonstrated his entitlement to a writ of habeas corpus. Therefore, the motion

to dismiss is granted.

By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur