Opinion
No. 90-1725
Submitted April 16, 1991 —
Decided August 14, 1991.
APPEAL from the Court of Appeals for Pickaway County, No. 90-CA-11.
On January 16, 1991, appellant, Turhan Wynn, filed a petition for a writ of habeas corpus in the Court of Appeals for Pickaway County, alleging that he is a prisoner at the Orient Correctional Institute and that respondent, David Baker, its superintendent, holds him illegally in custody. The following facts appear in the record:
In 1981, appellant was convicted of grand theft in case No. 163372 in the Court of Common Pleas of Cuyahoga County. He received a two-to-five-year sentence, to be served concurrently with the sentence in case No. 160701, which is not further described in the record.
In 1982, he was convicted of breaking and entering in the Court of Common Pleas of Hamilton County and sentenced to a term of one and one-half to five years, "to be served consecutively to the sentence now being served."
Also, in 1982, he was convicted of grand theft in the Court of Common Pleas of Lake County and sentenced to one to five years, "to run concurrently with the sentence from Cuyahoga County Case No. 160701."
In 1986, appellant was granted parole, but he was declared a parole violator in 1989, and parole was revoked. In the court of appeals, appellant contended that the judgment of conviction in case No. 163372 in Cuyahoga County did not state the value of the property taken, which would make it a misdemeanor under R.C. 2913.61 and 2945.75, and that the Hamilton County sentence could not have been ordered to be served consecutively with the Cuyahoga County sentence in case No. 163372 because the latter case was a misdemeanor that must be served concurrently with any felony, as required by R.C. 2929.41(A). Therefore, he concluded that his maximum sentence has expired, and he should be discharged.
In 1981, R.C. 2913.61(A) provided:
"When a person is charged with a theft offense involving property or services valued at one hundred fifty dollars or more, the jury or court trying the accused shall determine the value of such property or services as of the time of the offense and, if a guilty verdict is returned, shall return the finding of value as part of the verdict. In any such case it is unnecessary to find and return exact value, and it is sufficient if the finding and return is to the effect that the value of the property or services involved was less than one hundred fifty dollars or was one hundred fifty dollars or more."
R.C. 2945.75(A)(2) provides:
"A guilty verdict shall state either the degree of the offense of which the offender is found guilty, or that such additional element or elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged."
R.C. 2929.41(A) provides in part:
"* * * [A] sentence of imprisonment for misdemeanor shall be served concurrently with a sentence of imprisonment for felony served in a state or federal penal or reformatory institution."
Both parties filed motions for summary judgment. The court of appeals granted appellee's motion holding that habeas corpus is not a proper remedy for reviewing errors of sentencing by a court of competent jurisdiction, citing R.C. 2725.05; Blackburn v. Jago (1988), 39 Ohio St.3d 139, 529 N.E.2d 929; and Walker v. Maxwell (1965), 1 Ohio St.2d 136, 30 O.O.2d 487, 205 N.E.2d 394.
The cause is before this court upon an appeal as of right.
Turhan Wynn, pro se.
We affirm the decision of the court of appeals. Habeas corpus relief is not available to appellant because the sentencing error, if there is one, is not jurisdictional. Blackburn, supra.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.