Turner v. Coulson

2015 Ohio 3416

Opinion

[Cite as Turner v. Coulson, 2015-Ohio-3416.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

JOHN L. TURNER, JR., : PER CURIAM OPINION

Petitioner, : CASE NO. 2015-L-052 - vs - :

CHARLES COULSON, LAKE COUNTY : CHIEF PROSECUTOR, et al.,

Respondents. :

Original Action for Writ of Habeas Corpus.

Judgment: Petition dismissed.

John L. Turner, Jr., pro se, c/o Lake County Jail, 104 East Erie Street, Painesville, OH 44077 (Petitioner).

Charles E. Coulson, Lake County Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Respondents).

PER CURIAM.

{¶1} This matter is before the court pursuant to the petition for a writ of habeas

corpus filed by petitioner, John L. Turner, Jr., against respondents, Lake County

Prosecutor Charles Coulson and Lake County Sheriff Daniel Dunlap. For the reasons

that follow, the petition is dismissed.

{¶2} In his petition, petitioner alleges that because the Adult Parole Authority

found him guilty of a violation of his parole due to his commission of a theft offense, he was placed in jeopardy and cannot be tried for that offense without violating his right not

to be placed twice in jeopardy.

{¶3} Initially, we note that a court may sua sponte dismiss a petition for an

extraordinary writ when it is improperly captioned. Hill v. Kelly, 11th Dist. Trumbull No.

2011-T-0094, 2011-Ohio-6341, ¶4. Pursuant to Civ.R. 10(A), the caption of a complaint

must “include the names and addresses of all the parties.” Hill, supra, at ¶8. Here,

petitioner has failed to include his address in the caption of his petition. For this reason

alone, the petition must be dismissed. Id.

{¶4} In addition, petitioner’s affidavit identifying civil actions previously filed is

legally insufficient because it does not include a “brief description of the nature of the

civil action or appeal” and “[t]he name of each party to the civil action or appeal.” R.C.

2969.25(A)(1) and (3). “The requirements of R.C. 2969.25 are mandatory, and failure to

comply with them subjects an inmate’s action to dismissal.” State ex rel. White v.

Bechtel, 99 Ohio St.3d 11, 2003-Ohio-2262, ¶5.

{¶5} Further, petitioner has failed to comply with R.C. 2969.25(C). This section

requires an inmate, who files a civil action against a government entity and seeks a

waiver of the filing fee, to file an affidavit of indigency along with a certified statement of

the inmate's account balance for each of the previous six months. Petitioner has also

failed to comply with this requirement. Bechtel, supra. Failure to file a statement of the

inmate’s account balance in compliance with R.C. 2969.25(C) at the time of the initial

filing of the petition results in dismissal of the petition. Hazel v. Knab, 130 Ohio St.3d 22,

2011-Ohio-4608, ¶1. In Hazel, supra, the Ohio Supreme Court held that the error

cannot be corrected after the initial filing and is fatal to the petition.

2 {¶6} In any event, even if petitioner had complied with the foregoing procedural

requirements and even if we were to assume the truth of the allegations in his petition,

he still would not be entitled to a writ of habeas corpus. Sua sponte dismissal of a

petition for an extraordinary writ for failure to state a claim on which relief can be

granted is appropriate if the complaint is frivolous or the claimant obviously cannot

prevail on the facts alleged in the petition. Hill, supra. In State v. Martello, 97 Ohio

St.3d 398, 2002-Ohio-6661, the Supreme Court of Ohio held there is no double

jeopardy violation where “a person released on postrelease control who violates

conditions of that postrelease control faces a term of incarceration for the violation as

well as criminal prosecution for the conduct that was the subject of the violation as a

felony in its own right.” Id. at ¶27. The Martello court reasoned that punishment imposed

due to a violation of postrelease control was civil in nature and amounted to nothing

more than the reinstatement of punishment already imposed as part of the original

criminal prosecution. Id. at ¶19, 26. Thus, jeopardy did not attach. The Court explained

that the longstanding rule in both Ohio and in federal courts is that a criminal defendant

can be convicted of the new charge regardless of any decision by a parole authority to

reinstate the original sentence or impose additional administrative sanctions for the

parole violation. Id. at ¶38.

{¶7} Further, this court has held that the violation of a condition of post-release

control, and any subsequent sanctions, is part of the punishment for the original criminal

conduct, and, thus, punishment stemming from a post-release control violation would

never result in double jeopardy. State v. Swick, 11th Dist. Lake No. 97-L-254, 2001

Ohio App. LEXIS 5857, *31 (Dec. 21, 2001).

3 {¶8} We therefore hold that the hearing held by the Adult Parole Authority

which resulted in the violation of petitioner’s post-release control did not place him in

jeopardy, and the prohibition against double jeopardy does not apply.

{¶9} We therefore dismiss petitioner’s petition for a writ of habeas corpus.

TIMOTHY P. CANNON, P.J., DIANE V. GRENDELL, J., CYNTHIA WESTCOTT RICE, J., concur.