State ex rel. Johnson v. Foley

2022 Ohio 36

• Court: Ohio Court of Appeals
• Decided: January 10, 2022
• Docket: 21CA011789
• Status: Published

Opinion

[Cite as State ex rel. Johnson v. Foley, 2022-Ohio-36.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE EX REL. MARVIN F. JOHNSON, SR. C.A. No. 21CA011789 Petitioner

v. ORIGINAL ACTION IN KEITH J. FOLEY, WARDEN HABEAS CORPUS

Respondent

Dated: January 10, 2022

PER CURIAM.

{¶1} Petitioner, Marvin F. Johnson, has petitioned this Court for a writ of habeas

corpus to compel Respondent, Warden Foley, to release him from custody. Warden Foley

has moved to dismiss or for summary judgment and Mr. Johnson has responded. For the

following reasons, this Court grants the motion to dismiss.

{¶2} When this Court reviews a motion to dismiss under Civ.R. 12(B)(6), we

must presume that all of the factual allegations in the petition are true and make all

reasonable inferences in favor of the nonmoving party. State ex rel. Seikbert v. Wilkinson,

69 Ohio St.3d 489, 490 (1994). A petition can only be dismissed when, having viewed

the complaint in this way, it appears beyond doubt that the relator can prove no set of

facts that would entitle him to the relief requested. Goudlock v. Voorhies, 119 Ohio St.3d C.A. No. 21CA011789 Page 2 of 5

389, 2008-Ohio-4787, ¶ 7. With this standard in mind, we begin with the facts alleged in

the petition.

{¶3} According to Mr. Johnson’s petition, and the attachments to the petition, he

entered a no contest plea to several offenses. As is relevant to this case, the trial court

sentenced Mr. Johnson to six years in prison on count one. Mr. Johnson was also

scheduled for medical procedures, so the trial court permitted Mr. Johnson to report for

his sentence at a later date. After Mr. Johnson failed to report, the trial court vacated the

six-year sentence and imposed an eight-year sentence. On appeal, the Eighth District

Court of Appeals reversed the trial court’s judgment and ordered the trial court to

reimpose the original sentence.

{¶4} Upon remand, the trial court held a new sentencing hearing. During that

hearing, the trial court told Mr. Johnson that he was before the court so that the trial court

could reimpose the original six-year sentence. After hearing from the parties, the trial

court imposed sentence, but, according to the transcript of the proceedings, the trial court

stated that it was imposing a six-month sentence on count one, not a six-year sentence.

The trial court’s new judgment of conviction, however, reflected that the trial court

imposed a sentence of six years, not six months.

{¶5} Mr. Johnson attempted to appeal the trial court’s judgment. The trial court

eventually vacated its resentencing entry and reinstated its original sentencing entry that

sentenced Mr. Johnson to six years in prison. In a subsequent appeal, the Eighth District

Court of Appeals recognized that its mandate did not authorize the trial court to resentence

Mr. Johnson and that its mandate in the original appeal limited the trial court to vacating C.A. No. 21CA011789 Page 3 of 5

the sentencing entry with the eight-year sentence and reinstating the original judgment of

conviction.

{¶6} In his petition, Mr. Johnson has argued that the last sentence the trial court

imposed in open court was for a term of six months. He concludes, therefore, that he has

served the maximum sentence and he is entitled to immediate release. Warden Foley

moved to dismiss. He argued that habeas corpus relief is only available when the prisoner

demonstrates that he is entitled to immediate release from confinement or that the trial

court lacked jurisdiction to impose sentence. Warden Foley concluded that habeas corpus

is not available because Mr. Johnson has not completed his six-year sentence and because

Mr. Johnson has not argued that the trial court lacked jurisdiction to impose sentence.

{¶7} State habeas corpus relief is available in specific, extraordinary

circumstances. R.C. Chapter 2725 prescribes the procedure for bringing a habeas corpus

action. The petitioner must file a petition that contains specific, required, information. If

this Court concludes that the petition states a facially valid claim, it must allow the writ.

R.C. 2725.06. On the other hand, if the petition fails to state a claim, this Court should

dismiss the petition. Chari v. Vore, 91 Ohio St.3d 323, 327 (2001). For this Court to

grant the writ, Mr. Johnson must demonstrate that there is an unlawful restraint of his

liberty or that the judgment of conviction and sentence is void due to lack of jurisdiction.

Pegan v. Crawmer, 76 Ohio St.3d 97, 99-100 (1996). Mr. Johnson has only alleged that

there is an unlawful restraint on his liberty because he has served his six-month sentence

and the eight-year sentence is void. C.A. No. 21CA011789 Page 4 of 5

{¶8} As noted above, to dismiss the petition, it must appear beyond doubt from

the petition, after all factual allegations are presumed true and all reasonable inferences

are made in favor of the petitioner, that he can prove no set of facts warranting relief.

State ex rel. Dehler v. Sutula, Judge, 74 Ohio St.3d 33, 34 (1995). “A writ of habeas

corpus is warranted in certain extraordinary circumstances ‘where there is an unlawful

restraint of a person’s liberty and there is no adequate remedy in the ordinary course of

law.’” Johnson v. Timmerman-Cooper, 93 Ohio St.3d 614, 616 (2001), quoting Pegan v.

Crawmer, 76 Ohio St.3d 97, 99 (1996).

{¶9} Mr. Johnson has argued that he has completed his six-month sentence, so

he is entitled to immediate release. His petition, along with the attachments, however,

demonstrate that the trial court imposed a six-year sentence, which it improperly vacated

and ordered an eight-year sentence. On appeal, the Eighth District Court of Appeals

recognized that the trial court erred when it vacated the six-year sentence and it ordered

the trial court to reinstate the original sentence. The Eighth District Court of Appeals

recognized, in a later appeal, that the trial court was limited to following its remand

instructions, so the trial court could not have held a new sentencing hearing at which the

trial court mistakenly referred to a “six-month” sentence rather than a “six-year” sentence.

State v. Johnson, 8th Dist. Cuyahoga No. 107123, 2019-Ohio-632, ¶ 16 (“[T]he trial court

was simply following our limited remand instructions when it reinstated Johnson’s

original six-year sentence.”). Mr. Johnson has appealed that sentence to the Eighth

District Court of Appeals and the sentence has been affirmed on appeal. Id. at ¶ 14 C.A. No. 21CA011789 Page 5 of 5

(stating that, in the prior appeal, the court concluded that the trial court did not have the

authority to vacate Johnson’s original six-year sentence).

{¶10} Considering Mr. Johnson’s allegations as true, they are insufficient to

warrant habeas corpus relief. The trial court did not impose a valid six-month sentence

that Mr. Johnson has completed, requiring his immediate release from prison. The motion

to dismiss is granted, and this case is dismissed. Costs are taxed to Mr. Johnson. The

clerk of courts is hereby directed to serve upon all parties not in default notice of this

judgment and its date of entry upon the journal. See Civ.R. 58.

DONNA J. CARR FOR THE COURT

CALLAHAN, J. SUTTON, J. CONCUR.

APPEARANCES:

MARVIN F. JOHNSON, SR., Pro Se, Petitioner.

DAVE YOST, Attorney General, and MAURA O’NEILL JAITE, Senior Assistant Attorney General, for Respondent.