Summary
In Padavick v. Cleveland Hgts., 34 Ohio St.2d 15, 295 N.E.2d 193 (1973), the Ohio Supreme Court dismissed a habeas petition because the petitioner failed "to question the jurisdiction of the sentencing court or the custody of the restraining officer."
Summary of this case from Brewer v. DahlbergOpinion
No. 72-617
Decided April 18, 1973.
Criminal procedure — Habeas corpus — Relief not available, when — Where petitioner convicted, and sentenced by court of competent jurisdiction — Availability of post conviction remedies.
APPEAL from the Court of Appeals for Cuyahoga County.
On February 21, 1970, Thomas Padavick, appellee herein, was convicted in the Cleveland Heights Municipal Court for violations of R.C. 2901.252, assault and battery upon a law enforcement officer, and R.C. 2917.33, resisting or abusing an officer. On the first conviction, the trial court sentenced him to one year in the workhouse and fined him $1,000 under R.C. 2901.252, and, on the second conviction, sentenced him to 30 days in the workhouse and fined him $500 under R.C. 2917.33. The workhouse sentences were ordered to run concurrently.
On April 20, 1972, appellee filed a petition for a writ of habeas corpus in the Common Pleas Court of Cuyahoga County. On April 26, 1972, that court granted the writ. On June 15, 1972, the Court of Appeals for Cuyahoga County affirmed the judgment of the Common Pleas Court.
The matter is now before this court pursuant to the allowance of a motion to certify the record.
Mr. Rocco J. Russo, for appellee.
Mr. Jules N. Koach, for appellant.
The petition of the appellee stated that he was unlawfully imprisoned and restrained of his liberty. A search of the record reveals no evidence to support this allegation. The record clearly shows that he was charged and tried in the Cleveland Heights Municipal Court, and was convicted and sentenced under journal entries executed by the judge of that court.
R.C. 2725.05 provides as follows:
"If it appears that a person alleged to be restrained of his liberty 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, and that the court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the writ of habeas corpus shall not be allowed. * * *"
Although appellee may allege other facts in his brief, he fails to question the jurisdiction of the sentencing court or the custody of the restraining officer; nor has he presented any evidence in support of his petition.
Habeas corpus is not the proper mode of redress where the petitioner has been convicted of a criminal offense and sentenced to imprisonment therefor by a court of competent jurisdiction. The availability of the postconviction remedies provided by R.C. 2953.21 to 2953.24, inclusive, is ground for denial of a writ of habeas corpus, except as provided in R.C. 2725.05. See Linkletter v. Walker, Warden (1965), 381 U.S. 618, 14 L. Ed. 2d 601, 85 S. Ct. 1731; Freeman v. Maxwell (1965), 4 Ohio St.2d 4, 210 N.E.2d 885; In re Copley (1972), 29 Ohio St.2d 35, 278 N.E.2d 358.
We find that the remedy pursued in the instant case was wholly unsupported as well as inappropriate and inapplicable on the record presented. It is the opinion of this court that the writ of habeas corpus should have been denied by the trial court.
The judgment of the Court of Appeals is reversed, and the cause is remanded to the Cleveland Heights Municipal Court.
Judgment reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.