Smith v. Mitchell

687 N.E.2d 749, 80 Ohio St. 3d 624

Opinion

Per Curiam.

Smith asserts that the court of appeals erred by dismissing his petition. Smith’s assertion, however, is meritless for the following reasons.

First, Smith’s claims of erroneous jury instructions and verdict forms could have been raised in his direct appeal from his criminal convictions and sentences; habeas corpus is not available to raise these claims. Smith v. Seidner (1997), 78 Ohio St.3d 172, 173, 677 N.E.2d 336, 336-337. Second, Smith’s claim that his trial court erred by failing to appoint appellate counsel for him did not prejudice him because he had counsel for his direct appeal. State v. Smith. Any possible contention by Smith of ineffective assistance of his retained appellate counsel is also not cognizable in habeas corpus. Haynes v. Humphreys (1992), 64 Ohio St.3d 206, 207, 594 N.E.2d 586, 587. Finally, Smith did not attach copies of all his pertinent commitment papers to his petition. R.C. 2725.04(D); McBroom v. Russell (1996), 77 Ohio St.3d 47, 48, 671 N.E.2d 10, 11. While the attachments to his petition refer to a Geauga County burglary sentence, that sentence is not attached. Without a copy of that sentence, the court of appeals could not determine whether Smith was entitled to release from prison even if his Portage County convictions were void. See Marshall v. Lazaroff (1997), 77 Ohio St.3d 443, 444, 674 N.E.2d 1378, 1379, quoting Suriger v. Seidner (1996), 74 Ohio St.3d 685, 687, 660 N.E.2d 1214, 1216 (“ Where a petitioner is incarcerated for several crimes, the fact that the sentencing court may have lacked jurisdiction to sentence him on one of the crimes does not warrant his release in habeas corpus.’ ”).

Based on the foregoing, we affirm the judgment of the court of appeals.

Judgment affirmed.

Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer, Cook and Lundberg Stratton, JJ., concur.