Bridges v. Gray

1

2023-Ohio-1661

ANDREY L. BRIDGES, Petitioner-Appellant, v. DAVID GRAY, WARDEN, Respondent-Appellee.

No. 22 BE 0034

Court of Appeals of Ohio, Seventh District, Belmont

May 5, 2023

Civil Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 21 CV 227

Andrey L. Bridges, pro se, Richland Correctional Institution, P.O Box 8107, 1001 Olivesburg Road, Mansfield, Ohio 44905 Petitioner-Appellant and

Atty Dave Yost, Ohio Attorney General, Atty. Jerri L. Fosnaught Assistant Attorney General, Criminal Justice Section, 30 East Broad Street, 23rd Floor, Columbus, Ohio 43215 for Respondent-Appellee.

BEFORE: Carol Ann Robb, Cheryl L. Waite, David A. D'Apolito, Judges.

OPINION AND JUDGMENT ENTRY

Robb J.

{¶1} Petitioner-Appellant Andrey Bridges appeals the decision of the Belmont County Common Pleas Court denying his Civ.R. 60(B) motion for relief from the dismissal of the writ of habeas corpus action he filed against Respondent-Appellee David Gray, Warden. For the following reasons, the trial court's judgment is affirmed.

Statement of the Case

{¶2} On November 29, 2021, Appellant filed a petition for a writ of habeas corpus against the warden of the Belmont Correctional Institution, where he was incarcerated on two Cuyahoga County Common Pleas Court cases. His probation in the first case was revoked after he was convicted in the second case of murder, tampering with evidence, and gross abuse of a corpse. He was sentenced on November 13, 2013, to 18.5 years to life in CR-13-574201 consecutive to 17 months in CR-11-552512.

{¶3} Appellant's habeas petition claimed the judgment of conviction in CR-13-574201 was void for lack of jurisdiction where the prosecutor filed a complaint in the Cuyahoga County Common Pleas Court and a grand jury indicted him before a preliminary hearing. Stating he was deprived of the opportunity to dispute probable cause for his detention, he argued a complaint should have been filed in Berea Municipal Court (in Cuyahoga County) where a preliminary hearing (and bindover) would be required before the common pleas court could obtain jurisdiction.

{¶4} The warden filed a motion to dismiss the habeas action, arguing Appellant: failed to attach the sentencing entry in CR-11-552512; did not serve his maximum sentence; and did not otherwise allege a ground for immediate release as he had an adequate legal remedy to raise his non-jurisdictional argument. In making the latter argument, the warden pointed out Appellant could have raised the issue in a direct appeal of his conviction, citing res judicata principles and case law stating a court's jurisdiction to enter a conviction is based on the indictment, not the arrest or complaint.

{¶5} Appellant's reply pointed to the evidence attached to his petition, which showed his attempts to obtain the final sentencing entry in CR-11-552512 and which included alternative documents showing he was sentenced in that case to 17 months to run consecutively to CR-13-574201. He also emphasized if a sentencing judgment is void, then habeas is an appropriate remedy regardless of the ability to raise the issue in a prior appeal.

{¶6} On January 25, 2022, the trial court dismissed the habeas petition (with the clerk noting service on the docket the same day). The court agreed dismissal was warranted due to missing commitment papers and alternatively agreed the petition did not state a claim for habeas. The court cited case law holding a preliminary hearing was not required after indictment and Crim.R. 5(B), which states, "The preliminary hearing shall not be held, however, if the defendant is indicted." The court concluded the allegation was non-jurisdictional and Appellant had an adequate remedy of law to raise it during an appeal from his conviction.

{¶7} On January 31, 2022, Appellant filed a motion to reconsider and for findings of fact and conclusions of law. In denying the request, the court pointed out the motion to reconsider a final order was a nullity and findings of fact and conclusions of law were not required. (2/2/22 J.E.) (with the clerk noting service on the docket the same day).

{¶8} Appellant also sent a letter to the clerk saying he was transferred to Richland Correctional Institution on January 31, 2022. He claimed mail sent to Belmont Correctional Institution would thus be returned to the clerk and asked the clerk to send a copy of the January 25, 2022 judgment to his new address. The letter was file-stamped February 11, 2022, and the clerk noted on the docket an additional mailing of the final entry.

{¶9} On March 17, 2022, Appellant filed a notice of appeal and motion for delayed appeal. This court dismissed the appeal as untimely under App.R. 4(A), pointing out App.R. 14(B) prohibits enlargement of the time to appeal and App.R. 5(A) does not allow a delayed appeal in a civil case. Bridges v. Warden, 7th Dist. Belmont No. 22 BE 7 (5/10/22 J.E.). We noted a claim related to service in a civil case could be presented in the trial court under Civ.R. 60(B). Id., citing Summers v. Lancia Nursing Homes, Inc., 2016-Ohio-7935, 76 N.E.3d 653, ¶ 27-28 (7th Dist.) (Summers II) (after dismissal of an untimely initial appeal in Summers I).

{¶10} On June 1, 2022, Appellant filed a Civ.R. 60(B) motion for relief from judgment in the habeas action. First, he cited our May 10, 2022 entry dismissing his appeal and argued he was entitled to an additional 30 days in order to file a timely appeal because he failed to receive notice of the judgment. He claimed the lateness of the appeal was out of his control as he was transferred soon after the entry was mailed to his former prison. He also claimed he tried to file a notice of appeal after the clerk's February 11, 2022 resending of the judgment to the new prison, but it was never received by the clerk.

{¶11} The motion for relief also made the following arguments about the trial court's dismissal entry: the court failed to recognize he attempted to obtain his sentencing entry in CR-11-552512 and attached other documents sufficiently showing his commitment; the court overlooked the jurisdictional nature of his claim (indictment without an opportunity to challenge probable cause at a preliminary hearing); he was thus not required to serve the maximum sentence to seek habeas; and res judicata should not be addressed via a Civ.R. 12(B)(6) motion.

{¶12} The warden's response argued Appellant had no meritorious claim due to lacking commitment papers or an adequate legal remedy and was not entitled to relief as a motion for relief is not a substitute for appeal or a method to circumvent appellate time limits. Appellant filed a motion "for leave" to file a request for a jury demand and oral hearing, merging an inapplicable request for a jury trial with a request for a hearing under local rules; notwithstanding his incarceration, he did not request alternative means of appearing. He then filed his reply in support of his Civ.R. 60(B) motion.

{¶13} On July 15, 2022, the trial court overruled Appellant's motion for relief from judgment, stating he failed to establish a ground for relief under Civ.R. 60(B) and was not entitled to additional time to appeal.^[1] The within appeal followed.

Jurisdiction on Habeas Petition, 60(B) Motion, and Appeal

{¶14} Initially, we address jurisdictional contentions made by both parties. Specifying that incorrect jurisdiction renders the writ void, the statute setting the jurisdiction for determining a request for a writ of habeas corpus provides:

If a person restrained of his liberty is an inmate of a state benevolent or correctional institution, the location of which is fixed by statute and at the time is in the custody of the officers of the institution, no court or judge other than the courts or judges of the county in which the institution is located has jurisdiction to issue or determine a writ of habeas corpus for his production or discharge. Any writ issued by a court or judge of another county to an officer or person in charge at the state institution to compel the production or discharge of an inmate thereof is void.

R.C. 2725.03. "The proceedings upon a writ of habeas corpus * * * may be reviewed on appeal as in other cases." R.C. 2725.26.

{¶15} Accordingly, "When a prisoner files a habeas petition in a county other than where he is incarcerated, the court of that county lacks jurisdiction to decide the merits of the petition." Baker v. Miller, 7th Dist. Belmont No. 11 BE 28, 2011-Ohio-5470, ¶ 5, citing Brown v. Hall, 123 Ohio St.3d 381, 2009-Ohio-5592, 916 N.E.2d 807, ¶ 1 (reversing for dismissal of habeas petition filed in the wrong county's appellate court even though the same court covered the county where the petitioner was held). Likewise, if a petition for habeas is originally filed in the proper appellate court but the petitioner is then transferred to a prison in a county in a different appellate court, then the court of filing loses jurisdiction and must dismiss the petition. State ex rel. Robinson v. Fender, ___ Ohio St.3d ___, 2022-Ohio-3701, ___ N.E.3d ___, ¶ 4-6.

{¶16} The warden claims Appellant admits the trial court had no jurisdiction to determine his petition for a writ due to his transfer; the warden also extrapolates that if the trial court had no jurisdiction below, then the appellate court has no jurisdiction. The warden's initial argument appears to be based on a misreading of Appellant's brief as stating he was transferred on January 24, 2022 (which was the day before the trial court dismissed Appellant's petition). However, this was the day Appellant said he was notified of a transfer. Throughout the proceedings, there was no dispute Appellant was transferred on January 31, 2022, which was after the dismissal of the...