Rouse v. Davis

2024 Ohio 915

• Court: Ohio Court of Appeals
• Decided: March 7, 2024
• Docket: 22CA4008
• Status: Published

Opinion

[Cite as Rouse v. Davis, 2024-Ohio-915.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

RONALD ROUSE, JR., : : Petitioner-Appellant, : Case No. 22CA4008 : v. : : CYNTHIA DAVIS, WARDEN, : DECISION AND JUDGMENT 1 Southern Ohio Correctional Facility, : ENTRY : Respondent-Appellee. : RELEASED 3/07/2024 _____________________________________________________________ APPEARANCES:

Ronald Rouse, Jr., Lucasville, Ohio, Petitioner-Appellant Pro Se.

Ohio Attorney General Dave Yost, and Katherine E. Mullen, Senior Assistant Attorney General, Columbus, Ohio, for Respondent-Appellee. _____________________________________________________________

Smith, P.J.:

{¶1} This is an appeal from a Scioto County Court of Common Pleas

judgment entry that dismissed Petitioner-Appellant Ronald Rouse, Jr.’s

petition seeking a writ of habeas corpus. After our review of the record and

the applicable law, we affirm the trial court’s judgment.

1 In Rouse’s Habeas Petition, he named Ronald Erdos as Warden of the Southern Ohio Correctional Facility. The Scioto County Docket Sheet for Case No. 22CIH64, the underlying proceeding, denotes that on May 2, 2023, Ronald Erdos was dismissed as defendant and Cynthia Davis has been substituted as the Warden of the Southern Ohio Correctional Facility. Respondent-Appellee’s brief notes that pursuant to Civ.R. 25(D)(1), “a public officer’s successor is automatically substituted as a party” when the named public officer no longer holds office. Scioto No. 22CA4008 2

BACKGROUND

{¶2} Rouse, who has felony convictions from Muskingum and Ross

Counties in Ohio, is currently imprisoned at the Southern Ohio Correctional

Facility (SOCF) in Scioto County. He is currently in the custody of Cynthia

Davis, the Warden of SOCF. Rouse filed a Writ of Habeas Petition in the

Scioto County Court of Common Pleas on April 11, 2022. We set forth the

following chronology leading to the filing of Rouse’s petition.

{¶3} In 2007, Rouse was convicted in the Muskingum County Court

of Common Pleas for one count of Aggravated Burglary, in violation of R.C.

2911.11(A)(1), a felony of the first degree; one count of Violation of a

Protection Order, in violation of R.C. 2919.27(A)(1), a felony of the third

degree; and one count of Domestic Violence, in violation of R.C.

2919.25(A), a misdemeanor of the first degree. See State v. Rouse, 5th Dist.

Muskingum No CT2007-0036, 2008-Ohio-2975, at ¶ 1, “Rouse I.” On May

20, 2007, the trial court sentenced Rouse to a stated prison term of ten (10)

years on Count One, and to a stated prison term of five (5) years on Count

Two, said sentences to be served consecutive to one another for an aggregate

prison sentence of fifteen (15) years. Id. at ¶6. In addition, Rouse received

a sentence of six (6) months on Count Three, to be served concurrent to the

other charges. Id. The Fifth District affirmed his convictions in Rouse I. Scioto No. 22CA4008 3

For clarity, we will reference this set of felony convictions from Muskingum

County, with an underlying case number of CR2007-0012, as “Case 1.”

{¶4} Rouse was also convicted upon a plea of guilty to one count of

Assault on a Peace Officer, Muskingum County Common Pleas Case

Number CR2007-0110. We will reference this conviction as “Case 2.” In

October of 2007, the trial court sentenced Rouse to six months, to be served

concurrently with his sentence in Case 1.

{¶5} While serving the above prison sentences in Ross County in

2011, Rouse was indicted by the Ross County Court of Common Pleas on

one count of Felonious Assault and one count of Possession of a Deadly

Weapon While Under Detention. Ross County Common Pleas Court

assigned this as Case Number CR2011-543 and we will reference it as “Case

3.” Rouse later entered guilty pleas to both counts. On January 26, 2012,

the trial court sentenced Rouse, stating as follows: “I’m going to impose

three years on count one and three years on count two. Those run concurrent

to each other. But the net three years runs consecutive to the sentence that

he’s currently serving.”

{¶6} Based upon the above facts, Rouse alleged in his petition that he

is unlawfully restrained because he has served his maximum sentence of 15

years imposed by the trial court in Muskingum County in Case 1, which Scioto No. 22CA4008 4

expired in December 2021, and since that time, he has been held in custody

unlawfully. Rouse challenges the validity of the sentencing entry from Ross

County, which purports to impose an additional three years to be served

consecutively, for two reasons. First, he argues the language indicating that

his sentence is to run consecutive to “the sentence that he’s currently

serving,” is ambiguous in that it does not set forth a specific case number.

Second, Rouse alleges that the judgment entry of sentence erroneously sets

forth the name of the offense he pled to as “Possession of a Deadly Weapon

While Under Disability.” Rouse contends that Crim.R. 43 was violated in

that he was never in the presence of the trial court as required to enter his

plea. Due to these irregularities, Rouse concludes that upon the expiration

of his maximum 15 year sentence on December 26, 2021, he is no longer

lawfully in custody. Rouse supported his petition with the following

documents:

1. Exhibit A: Three Count Indictment, Muskingum County, filed Jan. 11, 2007;

2. Exhibit B: Entry, Muskingum Case No CR2007- 0012, filed May 10, 2007;

3. Exhibit C: One Count Indictment, Muskingum County, filed April 18, 2007;

4. Exhibit D: Entry, Muskingum Case No. CR2007- 0010, filed October 31, 2007; Scioto No. 22CA4008 5

5. Exhibit E: Two Count Indictment, Ross No. 11CR543, filed October 7, 2011;

6. Exhibit F: Judgment Entry of Sentence, Ross No. 11CR543, filed January 26, 2012;

7. Exhibit G: Plea of Guilty, Ross No. 11CR543, filed December 6, 2011;

8. Exhibit H: Case Docket Sheet, Ross No. 11CR543;

9. Exhibit I: Appears to be printout from Southern Ohio Correctional Facility with sentencing information, dated December 17, 2021;

10. Exhibit J: Appears to be offender information from the Ohio Department of Corrections showing expected release date 12/26/24;

11. Exhibit K: Notice of Commitment and Calculation of Sentence, Ohio Department of Rehabilitation and Correction, dated May 17, 2007, showing calculated release date of 12/29/2021;

12. Exhibit L: Transcript of Dispositional Hearing, Ross No. 11CR543;

13. Exhibit M: Transcript of Plea Hearing, Ross No. 11CR543.

Rouse requested an evidentiary hearing or, in the alternative, an order for his

immediate discharge.

{¶7} On July 1, 2022, Rouse filed a Motion for Summary Judgment

in the Scioto County Common Pleas Court. On July 6, 2022, Respondent Scioto No. 22CA4008 6

filed a Motion to Dismiss. Also on that date, the trial court filed a judgment

entry scheduling a non-oral hearing on July 29, 2022. On July 14, 2022,

Rouse filed Petitioner’s Reply to Respondent’s Motion to Dismiss.

{¶8} On October 20, 2022, Rouse filed a Motion to Compel Ruling.

On November 8, 2022, the trial court filed a Judgment Entry on Motion to

Dismiss, granting Respondent’s motion. The trial court reasoned that: (1)

Rouse had an adequate legal remedy via direct appeal, postconviction

petition, or even delayed appeal because the errors he claims are obvious on

the face of the entry; (2) res judicata is also applicable; and (3) Rouse did not

sustain his burden of proving that he was illegally detained.

{¶9} Rouse thereafter filed a timely appeal.

ASSIGNMENTS OF ERROR2

I. ABUSE OF DISCRETION. TRIAL COURT ERRED WHEN AN INMATE’S MAXIMUM SENTENCE HAS EXPIRED A WRIT OF HABEAS IS THE PROPER REMEDY TO CHALLENGE THE ILLEGALITY OF THE INMATE’S CONTINUED INCARCERATION.

II. ABUSE OF DISCRETION. TRIAL COURT ERRED FOR AN AMBIGUITY WITH BASE COUNT (2) BEING IMPOSED IN DEFENDANTS PRESENCE IN ACCORDANCE TO CRIM.R. 43(A).

2 The assignments of error are set forth verbatim from Rouse’s brief. Scioto No. 22CA4008 7

III. TRIAL COURT ABUSED IT DISCRETION BY FAILING TO ANSWER SUMMARY JUDGMENT MOTION.

IV. TRIAL COURT ABUSED ITS DISCRETION ON PETITIONER’S REPLY TO RESPONDENT’S LATE MOTION TO DISMISS.

V. TRIAL COURT ABUSED ITS DISCRETION FOR FAILURE TO GRANT MOTION TO COMPEL TO NON-ORAL HEARING IN HIS FAVOR.

A. LAW

1. Standard of Review

{¶10} Respondent filed a motion to dismiss Rouse’s petition

for failure to state a claim.3 “ ‘A court may dismiss a habeas action under

Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted

“if, after all factual allegations are presumed true and all reasonable

inferences are made in [the petitioner's] favor, it appears beyond doubt that

he could prove no set of facts entitling him to the requested extraordinary

relief in habeas corpus.” ’ ” Starkey v. Shoop, 4th Dist. Ross No. 20CA3705,

2021-Ohio-564, at ¶ 9, quoting Smith v. Sheldon, 157 Ohio St.3d 1, 2019-

Ohio-1677, 131 N.E.3d 1, ¶ 5, quoting Keith v. Bobby, 117 Ohio St.3d 470,

2008-Ohio-1443, 884 N.E.2d 1067, ¶ 10.

3 The record reveals the underlying motion was filed pursuant to Civ.R. 12(B)(3) but we perceive this to be a scrivener’s error. Scioto No. 22CA4008 8

{¶11} Appellate review of a dismissal for failure to state a

claim is de novo. See Hammond v. Perry, 4th Dist. Hocking No. 12CA27,

2013-Ohio-3683, ¶ 11, citing Allen v. Bryan, 4th Dist. Hocking No.

12CA15, 2013-Ohio-1917, ¶ 7. This means the reviewing court “affords no

deference to a trial court's decision and, instead, applies its own, independent

review to determine if the Civ.R. 12(B)(6) requirements were satisfied.” Id.,

citing McDill v. Sunbridge Care Ents., Inc., 4th Dist. Pickaway No. 12CA8,

2013-Ohio-1618, at ¶ 10.

2. Habeas Corpus

{¶12} “ ‘Habeas corpus petitions are governed by R.C.

[Chapter] 2725.’ ” Starkey v. Shoop, supra, at ¶10, quoting Steele v.

Jenkins, 4th Dist. Ross No. 18CA3630, 2018-Ohio-4103, ¶ 9. “A habeas

corpus petition is available to any person who is ‘unlawfully restrained of

his liberty * * * to inquire into the cause of such imprisonment, restraint, or

deprivation.’ ” Hinton v. Shoop, 4th Dist. Ross No. 17CA3619, 2018-Ohio-

3647, ¶ 11, quoting R.C. 2725.01. “[T]he petitioner has the burden of

establishing his right to release.” Id., ¶ 12, citing Halleck v. Koloski, 4 Ohio

St.2d 76, 77, 212 N.E.2d 601 (1965); Yarbrough v. Maxwell, 174 Ohio St.

287, 288, 189 N.E.2d 136 (1963). “[I]f the petition states a claim for which

habeas corpus relief cannot be granted, the court should not allow the writ Scioto No. 22CA4008 9

and should dismiss the petition.” Id., citing Pegan v. Crawmer, 73 Ohio

St.3d 607, 609, 653 N.E.2d 659 (1995).

{¶13} “ ‘ “Like other extraordinary-writ actions, habeas

corpus is not available when there is an adequate remedy in the ordinary

course of law.” ’ ” Lloyd v. Robinson, 4th Dist. Ross No. 14CA3462, 2015-

Ohio-1331, ¶ 19, quoting Billiter v. Banks, 135 Ohio St.3d 426, 2013-Ohio-

1719, 988 N.E.2d 556, ¶ 8, quoting In re Complaint for Writ of Habeas

Corpus for Goeller, 103 Ohio St.3d 427, 2004-Ohio-5579, 816 N.E.2d 594,

¶ 6. “ ‘An appeal is generally considered an adequate remedy in the

ordinary course of law sufficient to preclude a writ.’ ” State v. Bradford, 4th

Dist. Ross No. 17CA3613, 2018-Ohio-1907, ¶ 10, quoting Shoop v. State,

144 Ohio St.3d 374, 2015-Ohio-2068, 43 N.E.3d 432, ¶ 8. “The fact that a

direct appeal may no longer be available to [a petitioner] does not render the

legal remedy inadequate or thereby entitle [the petitioner] to the

extraordinary writ of habeas corpus.” State v. Jenkins, 4th Dist. Ross No.,

18CA3630, 2018-Ohio-4103, ¶ 10, citing Jackson v. Wilson, 100 Ohio St.3d

315, 2003-Ohio-6112, 798 N.E.2d 1086, ¶ 9.

{¶ 14} “A successful habeas ‘petitioner must be able to

establish that his present incarceration is illegal because the trial court that

rendered the conviction lacked jurisdiction over the criminal case.’ ” Scioto No. 22CA4008 10

Starkey v. Shoop, at ¶ 12, quoting Jenkins, at ¶ 9, citing R.C. 2725.05. But,

“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.” Pollock v. Morris, 35 Ohio St.3d 117,

117-118, 518 N.E.2d 1205 (1988). If “the petitioner asserts that the trial

court committed non-jurisdictional errors in the underlying case, the errors

can be adequately reviewed in a direct appeal of the conviction and the

habeas corpus petition is subject to dismissal.” Jenkins at ¶ 9, citing State ex

rel. Harsh v. Sheets, 132 Ohio St.3d 198, 2012-Ohio-2368, 970 N.E.2d 926;

State ex rel. Shackleford v. Moore, 116 Ohio St.3d 310, 2007-Ohio-6462,

878 N.E.2d 1035. For example, it is well-settled that claims of sentencing

error are not jurisdictional. See Steele v. Jenkins, 4th Dist. Ross No.

18CA3630, 2018-Ohio-4103, at ¶ 10, (internal citations omitted), and State

ex rel. King v. Watson, Slip Opinion No. 2023-0323, 2023-Ohio-4189, - -

N.E.3d - -, at ¶ 18 (internal citations omitted).

B. ANALYSIS

{¶15} For ease of analysis, we consider Rouse’s first and

second assignments of error jointly.

1. First Assignment of Error.

{¶16} On appeal, Rouse again contends that the judgment Scioto No. 22CA4008 11

entry of sentence in Case 3 contains an ambiguity because the entry is silent

as to whether the sentences in Case 3 had to be served consecutive or

concurrent with the sentences in his first and second cases. Again, Rouse

points to the language of the judgment entry in Case 3 which states: “The

court finds that the defendant has been convicted of the offenses of felonious

assault, O.R.C. 2903.11 and Possession of a Deadly Weapon While Under

[sic] that the offender serve a stated prison term of three (3) years in prison,

for each offense to be served concurrently to one another and consecutively

to the sentence defendant is presently serving.”

2. Second Assignment of Error.

{¶17} Rouse also contends that the judgment entry of

sentence in Case 3 contains an ambiguity as to the identity of the charge in

Count Two, “Possession of a Deadly Weapon While Under Detention.” The

entry reads that Rouse was pleading to “Possession of a Deadly Weapon

While Under Disability.” Rouse argues that he was not sentenced to the

latter charge in the presence of the trial court as required by Crim.R. 43.

{¶18} Respondent concedes the typographical error in the Ross

County sentencing entry wherein the correct code section is cited with the

wrong title. However, Respondent contends that the sentencing entry from

Ross County Case 3 is not ambiguous and argues that the lower court was Scioto No. 22CA4008 12

not required to refer to specific prior case numbers when he ordered the new

sentence to be served consecutive to the sentence in an earlier case. We

have reviewed the documents attached to Rouse’s petition and on appeal.

Rouse was sentenced by a court of competent jurisdiction. We conclude, as

did the trial court, based on well-established law, that Rouse has asserted

only sentencing errors which are not jurisdictional and thus, habeas review is

not the proper vehicle to seek redress of error or irregularities in an

individual’s sentence or the sentencing proceedings. Rather, direct appeal or

postconviction review is the relief available. Furthermore, both arguments

asserted by Rouse would be barred by res judicata.

{¶19} Even if we were to entertain Rouse’s claim regarding the

alleged ambiguity of the Ross County judgment entry of sentence, we would

find it to be without merit. Respondent directs our attention to the Tenth

District’s decision in State ex rel. Crowley v. Ohio Department of

Rehabilitation and Correction, 10th Dist. Franklin No. 17AP-198, 2018-

Ohio- 2526.4 In Crowley, a mandamus action decided by a magistrate upon

independent review of the evidence and objections, the Tenth District

overruled the objections and adopted the magistrate’s decision which stated:

4 Respondent also cites our own decision in State v. Mitchell, 4th Dist. Meigs No. 13CA13, 2015-Ohio- 5042, but we decline to discuss it because the similar language utilized by the trial court in Mitchell was not the basis of appellant’s challenge. Scioto No. 22CA4008 13

“There is no requirement that the sentencing entries in Case Nos. 06-CR-102

and 06CR23350 that imposed definite sentences reference Case No. 92CR-

632, that imposed the indefinite sentence.” (Emphasis added.) Relator’s

request for writ of mandamus was denied.

{¶20} Similarly, were we to entertain Rouse’s argument regarding

the typographical error and the alleged Crim.R. 43(A) violation, we would

again find no merit. The Ross County indictment reflects that Count Two is

Possession of A Deadly Weapon While Under Detention, R.C. 2923.131.

The judgment entry of sentence reflects the charge of Possession of a Deadly

Weapon While Under Disability, but cites the code section as set forth in the

indictment. The Plea of Guilty Rouse signed lists the correct code section

and the correct charge. The trial court docket reflects the date of the filing

of the judgment entry of sentence, along with the incorrect charge. Rouse’s

Exhibit I, a printout from ODRC, lists his incarceration for Possession Of A

Deadly Weapon While Under Detention, R.C. 2923.131.

{¶21} Rouse also attached transcripts of his plea hearing in Ross

County, dated November 23, 2011. At the hearing, the trial court references

the weapons charge correctly and then engages with Rouse in the typical

Crim.R. 11 colloquy regarding the nature of his charges as follows:

The Court: Count two it says on the same date, in Ross County, that you were under detention at a Scioto No. 22CA4008 14

correctional facility or detention facility, and that you knowingly possessed a deadly weapon, specifically a homemade shank and that you were under detention for aggravated burglary, a first degree felony and you were sentenced out of the Court of Common Pleas of Muskingum County, Ohio on May 10, 2007. Do you understand that charge:

Defendant: Yes.

{¶22} In our view, Rouse was well aware of the charge to which he

pled and he has provided us with no authority supporting the conclusion that

this typographical error in the sentencing entry renders his conviction or

sentence void. See State v. Bradford, 2017-Ohio-3003, 91 N.E.3d 10, at ¶

22 (4th Dist.). See also State v. Cooper, 5th Dist. Stark No. 2022CA00091,

2023-Ohio-2897, at fn. 2, citing State ex rel. Bradford v. Dinkelacker, 146

Ohio St.3d 219, 2016-Ohio-2916, 54 N..E.3d 1216, in the context of a

mandamus action, (“We are reassured in our decision by the fact that * * *

the Supreme Court of Ohio has reviewed Appellant's Hamilton County

convictions in the course of a mandamus appeal, acknowledged the

discrepancy [in Revised Code sections] between the verdict form and the

sentencing entry, yet failed to sua sponte recognize that the error rendered

either the conviction or sentence void or contrary to law.”). Furthermore, in

Steele v. Jenkins, cited earlier in this opinion, we found that Steele’s

assertion that the trial court failed to comply with Crim.R. 43(A) constituted Scioto No. 22CA4008 15

a sentencing error that should have been raised on appeal and not by habeas

corpus. Id. at ¶2.

{¶23} Based on the foregoing, the trial court correctly concluded that

Rouse was unable to establish that his present incarceration is illegal, that

Rouse had an adequate remedy at law in the form of a direct appeal, and that

he was not entitled to habeas corpus. The sentencing errors Rouse has

asserted are not jurisdictional and thus are not cognizable grounds for habeas

relief. Accordingly, we overrule Rouse’s first and second assignments of

error. Having overruled the first and second assignments of error, we find

the third, fourth, and fifth assignments of error are necessarily rendered

moot. The judgment of the trial court is affirmed.

JUDGMENT AFFIRMED. Scioto No. 22CA4008 16

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and Appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Hess, J., & Wilkin, J.: Concur in Judgment and Opinion.

For the Court,

BY: _________________________ Jason P. Smith, Presiding Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.