Schrock v. Doak

2013 Ohio 4756

• Court: Ohio Court of Appeals
• Decided: October 28, 2013
• Docket: 2013-P-0038
• Status: Published

Opinion

[Cite as Schrock v. Doak, 2013-Ohio-4756.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

MATTHEW M. SCHROCK, : PER CURIUM OPINION

Petitioner, : CASE NO. 2013-P-0038 - vs - :

DAVID DOAK, :

Respondent. :

Original Action for Writ of Habeas Corpus.

Judgment: Petition Dismissed.

Matthew M. Schrock, pro se, 293 Shultz Street, Akron, Ohio 44310 (Petitioner).

Victor V. Vigluicci, Portage County Prosecutor and John Jared Smiley, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Respondent).

PER CURIAM.

{¶1} On April 26, 2013, Matthew M. Schrock petitioned this court pro se for a

writ of habeas corpus. Mr. Schrock alleged that Sheriff David Doak of Portage County,

Ohio, was holding him in custody, and that the bail was excessive. On May 23, 2013,

we issued an alternative writ, and ordered Sheriff Doak to either file an answer, move to

dismiss, or move for summary judgment. Thereafter, Sheriff Doak moved to dismiss the

petition. {¶2} “As a general proposition, in order to be entitled to the issuance of a writ of

habeas corpus, the petitioner in such an action must be able to demonstrate an unlawful

restraint of a person’s liberty and the lack of any adequate remedy in the ordinary

course of the law.” State ex rel. Kanaga v. Lawson, 11th Dist. Lake No. 2009-L-106,

2010-Ohio-321, ¶23. A writ of habeas corpus may issue to correct a situation where a

defendant is being held due to excessive bail. Snype v. Plough, 11th Dist. Portage No.

2009-P-0013, 2009-Ohio-2190, ¶7.

{¶3} In support of his motion to dismiss, the sheriff first notes that R.C.

2725.04, which sets forth the general provisions for obtaining a writ of habeas corpus,

requires that the petition be verified in front of a proper officer, such as a notary public,

and that Mr. Schrock’s is not. Failure to properly verify a petition in compliance with

R.C. 2725.04 mandates dismissal. Jordan v. Johnson, 12th Dist. Madison No. CA2013-

03-007, 2013-Ohio-3679, ¶16-17.

{¶4} Second, the sheriff notes that R.C. 2725.04(D) provides that “[a] copy of

the commitment or cause of detention of [petitioner] shall be exhibited, if it can be

procured without impairing the efficiency of the remedy; or, if the imprisonment or

detention is without legal authority, such fact must appear.” There is no copy of Mr.

Schrock’s commitment attached to the petition, nor any indication he was being held

without legal authority. Consequently, dismissal is required. See, e.g., Whitman v.

Shaffer, 8th Dist. Cuyahoga No. 94486, 2010-Ohio-446, ¶3.

{¶5} Third, the sheriff notes that a petition for habeas relief must be dismissed

if it fails to state with particularity the extraordinary circumstances entitling the petitioner

to such relief. Arthur v. State, 8th Dist. Cuyahoga No. 95480, 2010-Ohio-3736, ¶10.

2 Mr. Schrock does not in any fashion particularize the reasons he is entitled to issuance

of the writ.

{¶6} Fourth, the sheriff notes that, pursuant to R.C. 2969.25(A), any inmate

petitioning for a writ of habeas corpus must also file an affidavit detailing any civil action

or appeal he or she has commenced within the previous five years in any state or

federal court. Whitman at ¶4. Mr. Schrock failed to file such an affidavit with his

petition: this mandates dismissal. See, e.g., Id.

{¶7} Finally, the sheriff notes that Mr. Schrock has, since the filing of his

petition, been released on bond. A copy of his recognizance bond, supported by the

affidavit of the assistant prosecutor, is attached to the motion to dismiss. Thus, as the

sheriff observes, the petition is moot. Pewitt v. Lorain Correctional Inst., 64 Ohio St.3d

470, 472 (1992).

{¶8} For all the reasons foregoing, the motion to dismiss is granted. The

petition for a writ of habeas corpus is dismissed.

CYNTHIA WESTCOTT RICE, J., THOMAS R. WRIGHT, J., COLLEEN MARY O’TOOLE, J., concur.