Opinion
No. 95-1275
Submitted December 5, 1995 —
Decided January 31, 1996.
APPEAL from the Court of Appeals for Scioto County, No. 94CA002275.
In 1988, appellant, Lewis Thomas III, was convicted of aggravated murder, aggravated robbery with specifications, and three counts of felonious assault with specifications. He was sentenced to life imprisonment with possibility of parole after twenty years for the aggravated murder and to indefinite terms of imprisonment on the other convictions. The court of appeals affirmed the convictions, but remanded for resentencing. State v. Thomas (Apr. 4, 1990), Hamilton App. No. C-880637, unreported, 1990 WL 37787. On September 2, 1994, he filed a complaint for a writ of habeas corpus in the Court of Appeals for Scioto County, alleging that the trial court that convicted him lacked jurisdiction to do so because he was convicted of complicity under R.C. 2923.03(A)(2) without being so charged in the indictment.
The state filed a return of the writ. The court of appeals held that habeas corpus is not available when the court has jurisdiction to convict and sentence the defendant and that the trial court had such jurisdiction in this case.
Appellant appeals as of right. Appellee has not filed a brief, but has filed a motion to strike appellant's brief or dismiss because appellant failed to file a copy of his brief with appellee.
Lewis Thomas III, pro se. Betty D. Montgomery, Attorney General, and Stuart A. Cole, Assistant Attorney General, for appellee.
Whether the evidence conforms to the indictment is not a jurisdictional issue as contended by petitioner-appellant. However, habeas corpus relief may be granted for nonjurisdictional claims, if the petitioner has no adequate remedy at law. State ex rel. Pirman v. Money (1993), 69 Ohio St.3d 591, 593, 635 N.E.2d 26, 29. Issues involving the relationship of the indictment to the evidence may clearly be appealed. See State v. O'Brien (1987), 30 Ohio St.3d 122, 30 OBR 436, 508 N.E.2d 144. Thus, petitioner in this case had an adequate remedy at law.
Accordingly, we overrule the motion to strike or dismiss and affirm the judgment of the court of appeals.
Judgment affirmed.
MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.