[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as 

State ex rel. Abercrombie v. Cuyahoga Cty. Court of Common Pleas, Slip Opinion No. 2014-

Ohio-4768.] 

NOTICE

This slip opinion is subject to formal revision before it is published in 

an advance sheet of the Ohio Official Reports. Readers are requested 

to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 

65 South Front Street, Columbus, Ohio 43215, of any typographical or 

other formal errors in the opinion, in order that corrections may be 

made before the opinion is published. 

SLIP OPINION NO. 2014-OHIO-4768 

THE STATE EX REL. ABERCROMBIE, APPELLANT, v. CUYAHOGA COUNTY 

COURT OF COMMON PLEAS ET AL., APPELLEES. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. Abercrombie v. Cuyahoga Cty. Court of Common 

Pleas, Slip Opinion No. 2014-Ohio-4768.] 

Habeas corpus—Concurrent sentences served in two states—Jurisdiction over 

petitioner—Judgment dismissing writ affirmed. 

(No. 2014-0048—Submitted July 8, 2014—Decided October 30, 2014.) 

APPEAL from the Court of Appeals for Marion County, No. 9-13-0033. 

_____________________ 

Per Curiam.

{¶ 1} We affirm the Third District Court of Appeals’ judgment 

dismissing a petition for writ of habeas corpus. Appellant, Steven Abercrombie, 

was convicted of several offenses associated with a robbery spree through Ohio 

and Michigan. Because he has not yet served his maximum sentence in Ohio, the 

court of appeals correctly denied his petition for habeas corpus. 

 
SUPREME COURT OF OHIO

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Facts 

{¶ 2} In 1994, Abercrombie was convicted of two terms of 7 to 25 years’ 

imprisonment by the Cuyahoga County Court of Common Pleas, to be served 

concurrently with each other and with a term of imprisonment he was then 

serving in Michigan. Abercrombie was sent back to Michigan to serve his 

sentence. In 2006, he was granted parole in Michigan. He was then brought back 

to Ohio, pursuant to a detainer, to continue serving his Ohio sentences. He was 

paroled in 2007 in Ohio. 

{¶ 3} While on parole, Abercrombie pled guilty to charges in Summit 

County and was sentenced to five years for robbery and a repeat-violent-offender 

specification and five years of postrelease control. That term of imprisonment 

expired on March 17, 2013. 

{¶ 4} Because of the new conviction, Abercrombie was also found in 

violation of his parole in Cuyahoga County and incarcerated in Ohio to serve his 

original sentences. He was denied parole in March 2013. His next parole review 

will be in December 2014. He is also being held on a detainer for parole 

revocation issued by the state of Michigan. 

{¶ 5} Abercrombie filed the petition in this case in July 2013, naming the 

Cuyahoga County and Summit County Common Pleas Courts, Jason Bunting, 

warden of the prison in which Abercrombie is incarcerated, and Cynthia Mausser, 

the chair of the Adult Parole Authority, as respondents. In the petition, he claims 

that because his 7-to-25-year sentences in Ohio were to be served concurrently 

with his Michigan sentence, Ohio lost jurisdiction over his case when he was sent 

back to Michigan. He claims that by Ohio retaining jurisdiction, the appellees 

have effectively made his Ohio and Michigan sentences consecutive rather than 

concurrent. 

{¶ 6} The warden filed a motion to dismiss or in the alternative, a motion 

for summary judgment. Abercrombie filed a cross-motion for summary 
January Term, 2014 

3

judgment. The parties filed appropriate responses. The Third District dismissed 

the petition, for failure to state a claim upon which relief can be granted. 

Specifically, the court found that because Abercrombie’s maximum sentence will 

not expire until 2019, he had failed to show that he was entitled to immediate 

release. The court of appeals also denied Abercrombie’s motion for relief from 

judgment, and he appealed to this court. 

Analysis 

{¶ 7} The court of appeals correctly dismissed Abercrombie’s petition 

for habeas corpus, and we affirm. Abercrombie is incorrect in arguing that 

because he was transferred to Michigan on a detainer to serve his sentence there, 

Ohio lost jurisdiction over him. As the court of appeals held, he has yet to serve 

his maximum Ohio term, which will expire in 2019. 

{¶ 8} Habeas corpus is not available to a prisoner who has not served his 

maximum sentence; “habeas corpus is available where an individual’s maximum 

sentence has expired and he is being held unlawfully.” Morgan v. Ohio Adult 

Parole Auth., 68 Ohio St.3d 344, 346, 626 N.E.2d 939 (1994), citing Hoff v. 

Wilson, 27 Ohio St.3d 22, 500 N.E.2d 1366 (1986). Abercrombie has not yet 

served his maximum 25-year sentence imposed in 1994, and therefore habeas 

relief is not appropriate. 

{¶ 9} Abercrombie also argues that the court of appeals erred in failing 

to notify the parties that it was converting the warden’s motion to dismiss—

actually captioned “motion to dismiss and/or summary judgment motion”—into a 

motion for summary judgment. However, as the warden points out, the court of 

appeals did not convert the motion to dismiss to a motion for summary judgment. 

It was obvious from the face of the pleadings, including Abercrombie’s petition, 

that Abercrombie had not served his maximum sentence. Even if the court of 

appeals considered matters outside the pleadings, that error was harmless. 
SUPREME COURT OF OHIO

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{¶ 10} Appellee Cuyahoga County Court of Common Pleas has moved to 

strike Abercrombie’s brief. That motion is denied as moot, and the judgment of 

the Third District Court of Appeals is affirmed. 

Judgment affirmed. 

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

FRENCH, and O’NEILL, JJ., concur. 

_____________________ 

Steven Abercrombie, pro se. 

Michael DeWine, Attorney General, and Gregory T. Hartke, Assistant 

Attorney General, for appellee Jason Bunting. 

Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and James 

E. Moss, Assistant Prosecuting Attorney, for appellee Cuyahoga County Court of 

Common Pleas. 

_____________________