[Cite as State v. Thompson , 2020-Ohio-4532.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO

STATE OF OHIO, : PER CURIAM OPINION Respondent, : CASE NO. 2020-P-0050 - vs - : JOHN C. THOMPSON, JR., : Petitione r

. :

Ori g inal Action for Writ of Habeas Corpus.

Jud g ment: Petition dismissed.

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 ( For Respondent )

. John C. Thompson, Jr., pro se, PID: A700-8 34, Lake Erie Correct ional Insti tution, 501 Thompson Road, P.O. Box 8000, Conneaut, OH 44030 ( Petitione r )

.

PER CURIAM. {¶1} The instant petition in habeas corpus is before this court for consideration of the motion to dismiss, filed by the titular respondent, the State of Ohio, represented by Victor V. Vigluicci, the Portage County Prosecuting Attorney. Respondent sets forth two procedural defects in support of the motion to dismiss: (1) Pet itioner has failed to bring the action against the proper party; and (2) petitioner has fai led to attach necessary commitment papers as required by R.C. 2725.04(D). For the foll owing reasons, we

conclude that dismissal is warranted.2 {¶2} Petitioner, in two separate case numbers, previously pleaded gu ilty to various felony counts and received an aggregate prison term of 10 years. Petitioner appealed and, in State v. Thompson , 11th Dist. Nos. 2018-P-0076 and 2018-P-0077, 2019-Ohio-5407, this court reversed and remanded the matter, co ncluding appellant’s guilty plea was invalid. Responded filed a discretionary appea l with the Supreme Court of Ohio and, on May 13, 2020, in State v. Thompson , 158 Ohio St.3d 1511, 2020-Ohio2815, the Court declined jurisdiction. On June 11, 2020, some 29 days following the Supreme Court’s announcement, petitioner filed the instant peti tion, naming the State of Ohio as respondent. In his petition, petitioner sought immedia te transfer to the Portage County Jail, release on a personal recognizance bond, and redre ss for an alleged statutory speedy trial violation. This court issued an alterna tive writ and the state subsequently filed a motion to dismiss. Petitioner did not res pond to the state’s motion; instead, he filed an amended petition seeking the same substant ive relief. And petitioner recast his amended petition, naming the state of Ohio, the Port age County Sheriff, and Judge Becky L. Doherty as respondents. He did not, however, at tach commitment papers from either of his underlying cases. {¶3} 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). {¶4} R.C. 2725.04 requires that the application for habeas corpus b e a signed and verified petition, and the petition must specify, inter ali a: {¶5} “(B) The officer, or name of the person by whom the prisoner is so confined or restrained * * *;3 {¶6} “* * * {¶7} “(D) A copy of the commitment or cause of detention of such per son shall be exhibited, if it can be procured without impairing the effic iency of the remedy; or, if the imprisonment or detention is without legal authority, such fact must appear.” {¶8} Initially, respondent asserts petitioner failed to name the pro per party in the caption of his petition. See R.C. 2725.04(B). This court has previously determined the proper party in a petition for habeas corpus is the jailer or w arden who presently has legal custody of the individual. State ex rel. Davis v. Wilson , 11th Dist. Trumbull No. 2003-T0049, 2003-Ohio-2840. At the time of his sentence, petitioner was lawfully committed to the Lake Erie Correctional Institution. Still, owing to this c ourt’s reversal of his conviction and the Supreme Court’s declination of jurisdiction, it would a ppear the proper party would be the Sheriff of Portage County, i.e., the administrator of th e facility (the county jail) at which petitioner should ostensibly be confined, who was named a s a respondent in the amended petition. In this respect, we decline to dismiss the p etition on this basis. {¶9} Nevertheless, petitioner, in his original petition, attached th e judgment entry from this court reversing and remanding his original judgment o n conviction and a motion to dismiss his original indictments filed in the Portage County Court of Common Pleas. In his amended petition, he attached a “Warrant for Removal” is sued by the Portage County Clerk of Courts to the Sheriff of Portage County to remo ve petitioner from the Lake Erie Correctional Institution on June 22, 2020 for a pretr ial on June 24, 2020. 1 He

1. It bears noting that the Warrant for Removal states that af ter the pretrial, the Portage County authorities “will transport [petitioner] and return him to: La ke Erie Correctional Institution * * *.” Because of this court’s reversal and remand order became final upon the Supreme Court’s decision to decline jurisdiction, appellant has not been convicted of the crimes fo r which he is charged. It is therefore unclear how one, without a formal conviction, can be held in a prison p ending complete and final prosecution of charges.4 did not, in either pleading, however, attach any document that could be construed as a commitment paper. This is a clear violation of R.C. 2725.04(D) . The failure to attach a prisoner’s commitment papers to his habeas corpus petition is a fatal defect which

warrants the dismissal of action. See, e.g., Hawkins v. Southern Ohio Corr. Facility, 102 Ohio St.3d 299, 2004-Ohio-2893. {¶10} Notwithstanding the foregoing conclusion, and we recognize our analysis is advisory, we find it prudent to address the merits of petitione r’s allegations. First, petitioner may or may not be unlawfully restrained. The warran t of removal suggests petitioner was remanded to the custody of the Portage County Sh eriff for a pretrial; this court reversed and remanded a formerly final conviction for fur ther proceedings in the trial court. It stands to reason that petitioner’s removal for a pretrial occurred due to this court’s December 31, 2019 opinion and judgment. Simply because appella nt’s criminal cases are pending anew does not imply the restraint on his liberty is unlawful. We do attach one caveat to this point: If petitioner is being held in the L ake Erie Correctional Institution, his restraint is improper and potentially unlawful as he has ye t to be convicted and sentenced to prison for the charges at issue. As indicated pre viously, under the circumstances, the Portage County Jail would represent the lawf ul facility at which he

should be restrained. {¶11} The remaining requests for relief, however, are not cognizabl e in habeas corpus. Because the matter was re-committed to the trial court for further proceedings, the Portage County Court of Common Pleas possesses jurisdiction to consider petitioner’s request for a recognizance bond as well as his all egation that his statutory speedy trial right has been violated. In this regard, petition er has an adequate recourse5 and therefore remedy in the ordinary course of law. In these r espects, the substantive features of his allegations are not proper for relief in habeas corpus. {¶12} Because appellant failed to attach the commitment papers in his underlying cases, the petition for writ of habeas corpus is dismissed. Re spondent’s motion to dismiss is granted.

CYNTHIA WESTCOTT RICE, J., MAT T LYNCH, J., MARY JANE TRAPP, J., concur.