[Cite as Appenzeller v. Miller, 136 Ohio St.3d 378, 2013-Ohio-3719.] 

APPENZELLER, APPELLANT, v. MILLER, WARDEN, APPELLEE. 

[Cite as Appenzeller v. Miller, 136 Ohio St.3d 378, 2013-Ohio-3719.] 

Habeas corpus—Proper removal of trial transcript from clerk’s office by 

petitioner’s own appellate counsel does not amount to break in chain of 

custody or denial of due process—Even if improper, removal of transcript 

does not constitute jurisdictional error of sentencing court and is therefore 

not cognizable in habeas corpus—Judgment denying writ affirmed.

(No. 2013-0087—Submitted August 21, 2013—Decided September 4, 2013.) 

APPEAL from the Court of Appeals for Belmont County, No. 12 BE 24, 

2012-Ohio-6093. 

____________________ 

Per Curiam.

{¶ 1} We affirm the judgment of the court of appeals granting the motion 

of appellee, Belmont Correctional Institution Warden Michelle Miller, and 

dismissing the petition of appellant, Russell E. Appenzeller, for a writ of habeas 

corpus. The local rule Appenzeller cites was not violated by his own counsel 

when he checked out the transcript to prepare a brief on Appenzeller’s behalf, nor 

did such an action violate Appenzeller’s right to due process or equal protection. 

In addition, his petition does not sustain an action in habeas corpus. 

Facts 

{¶ 2} Appenzeller was indicted in the Lake County Common Pleas Court 

on 18 felony counts. In 2006, a jury convicted Appenzeller on all counts, and the 

trial court sentenced him to an aggregate term of 28 years in prison. Appenzeller 

appealed his conviction and sentence to the Eleventh District Court of Appeals. 

The court affirmed in part and reversed in part, remanding the case for merging of 

certain offenses and resentencing. State v. Appenzeller, 11th Dist. Lake No. 
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2006-L-258, 2008-Ohio-7005. The trial court again sentenced Appenzeller to an 

aggregate term of 28 years in prison. The Eleventh District affirmed. State v. 

Appenzeller, 11th Dist. Lake No. 2009-L-027, 2009-Ohio-6384. Appenzeller also 

filed a petition for postconviction relief, which the trial court denied. The 

Eleventh District affirmed. State v. Appenzeller, 11th Dist. Lake No. 2007-L-175, 

2008-Ohio-6982. 

{¶ 3} Appenzeller, incarcerated in Belmont County, filed a petition for a 

writ of habeas corpus in the Seventh District Court of Appeals. See R.C. 2725.03 

(county of incarceration has sole jurisdiction in habeas corpus). His petition is 

based primarily on his contention that he was denied due process and equal 

protection when there was a break in the chain of custody of the trial transcript in 

his direct appeal. This alleged break occurred when Appenzeller’s own appellate 

attorney checked out the transcript to prepare his brief. 

Analysis 

{¶ 4} Appenzeller has moved for oral argument and for us to determine 

this appeal as if it had been originally filed in the Supreme Court. As to oral 

argument, it is not required in a direct appeal. S.Ct.Prac.R. 17.01; State ex rel. 

Motor Carrier Serv., Inc. v. Rankin, 135 Ohio St.3d 395, 2013-Ohio-1505, 987 

N.E.2d 670, ¶ 16. However, we have discretion to grant oral argument. Id.; 

S.Ct.Prac.R. 17.02(A). In exercising the discretion, we consider “whether the 

case involves a matter of great public importance, complex issues of law or fact, a 

substantial constitutional issue, or a conflict among courts of appeals.” State ex 

rel. Davis v. Pub. Emps. Retirement Bd., 111 Ohio St.3d 118, 2006-Ohio-5339, 

855 N.E.2d 444, ¶ 15, citing State ex rel. United Auto., Aerospace & Agricultural 

Implement Workers of Am. v. Ohio Bur. of Workers’ Comp., 108 Ohio St.3d 432, 

2006-Ohio-1327, 844 N.E.2d 335, ¶ 25-26. Here, as will be seen, Appenzeller 

does not allege issues of public importance, substantial constitutional issues, or 
January Term, 2013 

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issues complex enough to require oral argument, and we therefore deny the 

request. 

{¶ 5} As to Appenzeller’s motion asking us to treat the case as if 

originally filed in this court, that plenary authority is generally exercised to avoid 

the need to remand a case for correction of an error. Chari v. Vore, 91 Ohio St.3d 

323, 327, 744 N.E.2d 763 (2001), quoting State ex rel. Natl. Elec. Contrs. Assn., 

Ohio Conference v. Ohio Bur. of Emp. Serv., 88 Ohio St.3d 577, 579, 728 N.E.2d 

395 (2000) (“ ‘The court's plenary authority generally refers to our ability to 

address the merits of a writ case without the necessity of a remand if the court of 

appeals erred in some regard’ ”); see also State ex rel. Cleveland Police 

Patrolme’s Assn. v. Cleveland, 84 Ohio St.3d 310, 312, 703 N.E.2d 796 (1999). 

As we have no need to remand here, exercise of this authority is unnecessary. We 

therefore proceed to determine the merits. 

{¶ 6} For the same reasons given by the Seventh District, we affirm. 

{¶ 7} Appenzeller makes a number of allegations about his prosecution 

and the behavior of his trial and appellate counsel. However, the main basis of 

his petition is his allegation that during his direct appeal, the Eleventh District 

Court of Appeals lost custody and control of the transcript of his trial. He points 

to the docket of his appeal, which shows that the transcript was checked out by his 

appointed appellate counsel. He asserts that this is a violation of Loc.R. 11 of the 

Eleventh District Court of Appeals and of his equal-protection and due-process 

rights. 

{¶ 8} Appenzeller’s petition was properly dismissed. The relevant rule 

clearly allows for removal of the transcript from the clerk’s office for 14 days 

with permission. See Loc.R. 11 of the Eleventh District Court of Appeals 

(“Permission for removal of the transcript may be granted upon application on a 

form provided and approved by the judges of this court”). 
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{¶ 9} But no irregularity in the removal of the transcript could support 

Appenzeller’s right to the requested relief. Appenzeller makes no argument 

regarding the jurisdiction of the court that sentenced him. Habeas corpus will lie 

only to challenge the jurisdiction of the sentencing court. R.C. 2725.05. The few 

situations in which habeas corpus may lie to correct a nonjurisdictional error are 

those in which there is no adequate remedy at law. State ex rel. Jackson v. 

McFaul, 73 Ohio St.3d 185, 186, 652 N.E.2d 746 (1995), citing State ex rel. 

Pirman v. Money, 69 Ohio St.3d 591, 593, 635 N.E.2d 26 (1994). Here, 

Appenzeller could have moved for a renewed petition for postconviction relief to 

vindicate any legitimate claims against the Eleventh District Court of Appeals. 

He thus had a remedy at law and has failed to state a proper claim in habeas 

corpus. 

{¶ 10} We affirm. 

Judgment affirmed. 

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,

FRENCH, and O’NEILL, JJ., concur. 

____________________ 

 Russell E. Appenzeller, pro se. 

 Michael DeWine, Attorney General, and M. Scott Criss, Assistant 

Attorney General, for appellee. 

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