[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as DeVore v. Black , Slip Opinion No. 2021-Ohio-3153.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 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.

S LIP O PINION N O
. 2021-O HIO -3153
D E V ORE , A PPELLANT , v . B LACK , W ARDEN , A PPELLEE . [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as DeVore v. Black , Slip Opinion No. 2021-Ohio-3153.] Habeas Corpus—Inmate’s claim that he was convicted of an uncharged offense was an attack on the sufficiency of the i ndictment that is not cognizable in habeas corpus—Court of appeals’ judgm ent dismissing complaint affirmed. (No. 2021-0199—Submitted May 11, 2021— Decided September 15, 202 1.)
A PPEAL from the Court of Appeals for Richland County, No. 2020 CA 0074 , 2021-Ohio-198.

__________________ Per Curiam. {¶ 1} Appellant, Adam M. DeVore, is incarcerated in the Richland Correctional Institution, where a ppellee, Kenneth Black, is the warden. DeVore appeals the Fifth District Cour t of Appeals’ judgment dismissin g his habeas corpus complaint against Black for failure to comply with R.C. 2969.25 (A) and failure to state a cognizable claim for re lief in habeas corpus. We affir m.S UPREME C OURT OF O HIO

2 I. Background {¶ 2} In February 2018, DeVore was convicted in the Ashland County
Common Pleas Court of abduction a nd domestic violence and sente nced to consecutive 36-month prison terms. The Fifth District affirmed his convictions.
See State v. DeVore , 5th Dist. Ashland No. 18- COA-011, 2018-Ohio-4189, ¶ 108. {¶ 3} Following the affirmance of his convictions, DeVore filed an application to reopen his app eal under App.R. 26(B). One of De Vore’s proposed assignments of error in the app lication was that abduction and domestic violence
are allied offenses of similar im port and, therefore, he should not have been
sentenced for both. See R.C. 2941.25(A). The court of appeals denied DeVore’s application, determining that D eVore “committed separate and di stinct crimes and the offenses were separated by time and occurred in different l ocations.” The court of appeals therefore held that DeVore’s appellate counsel was n ot ineffective for failing to raise an allied-offenses argument. See R.C. 2941.25(B) (a defendant may be convicted of offenses of the same or similar kind if they we re committed “separately or with a separ ate animus as to each”). {¶ 4} On November 30, 2020, DeVore filed a complaint for a writ of ha beas corpus in the Fifth District, requesting his immediate release from prison. Citing the “separated by time and occurred in different locations” lan guage included in the court of appeals’ judgment denyi ng his App.R. 26(B) application for reopening, DeVore alleged that his convicti on for domestic violence was ne cessarily for conduct that occurred at a time and place different from that a lleged in the
indictment for the offense. DeV ore accordingly argued that his domestic-violence
conviction was void and that he is entitled to immediate releas e because he had already served the full 36-m onth prison term relating to his ab duction conviction. {¶ 5} Black filed a motion to dismiss DeVore’s complaint under Civ.R. 12(B)(6). The court of appeals granted Black’s motion and dism issed the complaint. 2021-Ohio-198, ¶ 12. T he court of appeals held tha t DeVore had failedJanuary Term, 2021

3 to comply with R.C. 2969.25(A) and also that his complaint fail ed to state a cognizable claim for re lief in habeas corpus. Id. at ¶ 4-6, 8-10. {¶ 6} DeVore timely appealed to this court as of right. II. Analysis {¶ 7} This court reviews the dismissal of a habeas corpus complaint u nder Civ.R. 12(B)(6) de novo. State ex rel. Norris v. Wainwright , 158 Ohio St.3d 20, 2019-Ohio-4138, 139 N.E.3d 867, ¶ 5. Generally, a writ of habe as corpus is available only when the petitioner’s maximum sentence has expir ed and he is being held unlawfully, Leyman v. Bradshaw , 146 Ohio St.3d 522, 2016-Ohio-1093, 59 N.E.3d 1236, ¶ 8, or when the sentencing court patently and una mbiguously lacked subject-matter jurisdiction, Stever v. Wainwright , 160 Ohio St.3d 139, 2020-Ohio1452, 154 N.E.3d 55, ¶ 8. For allege d nonjurisdictional errors , habeas corpus is not available when the petitioner has or had an adequate remedy in the ordinary course
of the law. Kneuss v. Sloan , 146 Ohio St.3d 248, 2016-Ohio-3310, 54 N.E.3d 1242, ¶ 6. {¶ 8} The court of appeals was correct to dismiss DeVore’s habeas complaint because it failed to state a valid claim for relief. DeVore was convicted of abduction and domestic violence, which were both alleged to have occurred between January 7 and 9, 2017. In his App.R. 26(B) application , DeVore argued that his appellate counsel rendere d ineffective assistance by n ot arguing that those
two convictions should have been merged for sentencing purposes . In its judgment denying DeVore’s App.R. 26(B) app lication, the court of appeals referred to evidence of a domestic-violence incident that, DeVore contends, was not the domestic-violence incident charged in the indictment. DeVore t herefore claims
that he was convicted of an unc harged offense and is consequent ly entitled to relief in habeas corpus. {¶ 9} The court of appeals properly re jected this argument. DeVore’s theory that he was convicted of an uncharged offense does not p resent aS UPREME C OURT OF O HIO

4 jurisdictional defect that may be challenged in an extraordinar y action. See Gunnell v. Lazaroff , 90 Ohio St.3d 76, 734 N.E.2d 829 (2000). Such an argument is an attack upon the sufficiency of th e indictment, which is not cog nizable in habeas

corpus. Id. at 76-77. Moreover, to the exte nt that there was any potential trial error or sentencing error regarding De Vore’s domestic-violence convic tion, DeVore had an adequate remedy to add ress it by way of appeal. {¶ 10} For the foregoing reasons, the court of appeals properly dismis sed DeVore’s habeas corpus complaint. Judgment affirmed.
O’C ONNOR , C.J., and F ISCHER , D E W INE , D ONNELLY , S TEWART , and
B RUNNER , JJ., concur.
K ENNEDY , J., concurs in judgment only, with an opinion.

_________________ K ENNEDY , J., concurring in judgment only. {¶ 11} Because an application to reope n a direct appeal under App.R. 2 6(B) is not a civil action, the Fifth District Court of Appeals erre d in dismissing appellant Adam M. DeVore’s habeas corpus complaint for failure to comply with R.C. 2969.25(A). See 2021-Ohio-198, ¶ 6, 12. R.C. 2969.25(A), which requires an inmate to file an affidavit of prior civil actions when commenc ing a civil action against the state, did not requi re DeVore to list in the affida vit a prior appeal of the denial of his application to re open. Contrary to the majority’ s position today, whether an inmate has complie d with R.C. 2969.25 is a threshold question that the court must answer before considering the merits of the inmate’s claim, and I would not let the court of appeals’ error go uncorrected. Nonetheles s, DeVore failed to state a claim for relief that is cognizable in habeas corpus, a nd I therefore concur in the majority’s judgment affirmi ng the dismissal of his complain t. {¶ 12} R.C. 2969.25(A) requires an inmat e who “commences a civil actio n or appeal against a government entity or employee” to “file wit h the court anJanuary Term, 2021

5 affidavit that contains a description of each civil action or a ppeal of a civil action that the inmate has filed in the previous five years in any sta te or federal court.” R.C. 2969.21(B)(1)(a) defines the phrase “civil action or appea l against a government entity or employee” to i nclude a “civil action that an inmate commences against the state, a political subdivision, or an emp loyee of the state or a political subdivision in a court of common pleas, court of ap peals, county court, or municipal court.” The General Assembly expressly excluded a ctions and appeals filed in this court from the definition of “civil actio n or appeal against a government entity or empl oyee.” R.C. 2969.21(B)(2). {¶ 13} The dismissal of an action for failure to state a claim upon wh ich relief can be granted is a ruling on the merits of the case. State ex rel. Arcadia Acres v. Ohio Dept. of Job & Family Servs. , 123 Ohio St.3d 54, 2009-Ohio-4176, 914 N.E.2d 170, ¶ 15. In contrast, a court’s review of an inma te’s affidavit of prior
civil actions does not involve the merits of the action but onl y whether the inmate has complied with “the mandatory filing requirements of R.C. 29 69.25,” State v.
Henton , 146 Ohio St.3d 9, 2016-Ohio-1518, 50 N.E.3d 553, ¶ 5. When a n inmate has not satisfied those filing re quirements, “the merits of any underlying claims * * * are not properly before [the] court,” Rogers v. Eppinger , 154 Ohio St.3d 189, 2018-Ohio-4058, 112 N.E.3d 902, ¶ 11, and the “ ‘failure to com ply with [R.C. 2969.25] requires dismissal of [th e] inmate’s complaint,’ ” id. at ¶ 9, quoting State
ex rel. Hall v. Mohr , 140 Ohio St.3d 297, 2014-Ohio-3735, 17 N.E.3d 581, ¶ 4. {¶ 14} Whether an inmate has complied with R.C. 2969.25, then, is a threshold question that may not be sidestepped to reach the mer its of the case. Nor may it be simply ignored, as the m ajority does today. For this reason, this court should review the court of appeal s’ determination that DeVore’s affidavit of prior
actions is insufficient. {¶ 15} In this case, the court of appeals looked at this court’s docke t and discovered that DeVore had prev iously appealed to this court th e denial of hisS UPREME C OURT OF O HIO

6 App.R. 26(B) application to reope n his direct appeal. The appe llate court noted our caselaw holding that an applica tion to reopen a direct appeal i s civil in nature, and
it determined that the dismissal of DeVore’s habeas complaint w as justified because “[the] appeal to the Ohio Supreme Court should have also been i ncluded in Mr. DeVore’s Affidavit of Prior Action.” 2021-Ohio-198 at ¶ 6. In the alternative, the
court concluded that the dismi ssal of the complaint was appropr iate also because
DeVore had failed to sta te a claim cognizable in habeas corpus. Id. at ¶ 10, 12. {¶ 16} In concluding that an applicati on to reopen file d in an appella te court is a civil action, the Fifth Di strict reasoned that because an application to reopen affords a civil remedy, it is a “civil action” for the purposes of R.C. 2969.25(A)’s affidavit requirement. Id. at ¶ 5-6. The court of appeal s assumed that if a matter, remedy, or proceeding is civil in nature, then it must be a “ci vil action.” This hasty generalization—that all proceedings that are civil in nature ar e civil actions— caused the court of appeals to jump to the conclusion that a pe rson filing an App.R. 26(B) application to reopen co mmences a civil action for purpos es of R.C. 2969.25(A), without ever consideri ng what the term “civil actio n” actually means. {¶ 17} This court, however, has long distinguished between civil actio ns and other civil proceedings. As we wrote in In re Wyckoff’s Estate :

We think it can accurately be said that the term, “civil action,” as used in our statutes embraces those actions which, prior to the adoption of the Code of Ci vil Procedure in 1853 abolishi ng the distinction between actions a t law and suits in equity, wer e denoted as actions at law or suits in equity; and that other co urt proceedings of a civil nature come, generally at least, within the classification of spe cial proceedings.

166 Ohio St. 354, 357, 142 N.E.2d 660 (1957).January Term, 2021

7 {¶ 18} We have adhered to that understanding in more recent decisions. E.g. , Polikoff v. Adam , 67 Ohio St.3d 100, 107, 616 N.E.2d 213 (1993) (“we ask
first whether shareholder deri vative suits were recognized in e quity, at common law, or established by special legislation” in determining whet her they are civil actions or special proceedings); Stevens v. Ackman , 91 Ohio St.3d 182, 186-189, 743 N.E.2d 901 (2001) (following Wyckoff’s Estate and Polikoff ). Ohio’s statutory law also recognizes this distinc tion between “actions” and spec ial proceedings (and provisional remedies). See R.C. 2505.02(A) and (B). {¶ 19} An “action,” we have said, is a court proceeding “ ‘ “by which a party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense, i nvolving process and pleadings, and ending in a judgment.” ’ ” Stevens at 187, quoting Polikoff at 104, quoting Missionary Soc. of Methodist Episcopal Church v. Ely , 56 Ohio St. 405, 407, 47 N.E. 537 (1897). The General Assembly rephrased and co dified our
definition of “action” in sec tion 11237 of the General Code, an d the definition is retained in R.C. 2307.01: “An action is an ordinary proceeding in a court of justice, involving process, pleadings, and ending in a judgment or decre e, by which a party prosecutes another for the redress of a legal wrong, enforcemen t of a legal right, or the punishment of a public offense.” {¶ 20} An App.R. 26(B) application for reopening is not a “civil actio n,” as we have traditionally understood that term. Its remedy did not exist at common law or in equity. Rather, the reme dy was established by this court in 1992 in State v.
Murnahan , when we held that a claim of ineffective assistance of appell ate counsel may be asserted by filin g a timely or delaye d application for r econsideration in the court of appeals (under the Rule s of Appellate Procedure) and b y filing a direct or delayed appeal in this court ( under our Rules of Practice). 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), paragraphs two and three of the syllabus. App.R. 26(B) was adopted the following year in response to Murnahan to provide for an applicationS UPREME C OURT OF O HIO

8 to reopen a direct appeal. See State v. Davis , 119 Ohio St.3d 422, 2008-Ohio-4608, 894 N.E.2d 1221, ¶ 13 (“App.R. 26(B) emanates directly from Murnahan ”). The rulemaking powers conferred on this court by the Ohio Constitut ion, however, do not extend to creating new form s of civil actions. Article IV, Section 5(B), Ohio Constitution (“The supreme court shall prescribe rules governin g practice and procedure in all courts of the st ate, which rules shall not abr idge, enlarge, or modify any substantive right”); see also Fred Siegel Co., L.P.A. v. Arter & Hadden , 85 Ohio St.3d 171, 178, 707 N.E.2d 853 (1999) (“violation of the D isciplinary Rules does not, in itself, create a pr ivate cause of action”). {¶ 21} Nor does an App.R. 26(B) proceedi ng fit within the common-law and statutory definition of “ac tion.” It does not involve the service of a summons and the filing of pleadings; ra ther, it provides for the submis sion of only the application to reopen and a memorandum in opposition. See App.R. 26(B)(4). And “application” is another word f or a motion, and it is not synon ymous with the word “pleading.” See Civ.R. 7(A) and (B) (distinguishing between a pleading and a motion, the latter of which is an “application to the court”); Black’s Law Dictionary 124 (11th Ed.2019) (defining the word “application” as “motion ”). The applicant does not “prosecute” another party in seeking to reop en the appeal. . {¶ 22} Further, a decision on the application does not result in a civ il judgment, because the appellate c ourt initially enters only an order granting or denying reopening. See App.R. 26(B)(6). And after an App.R. 26(B) application is granted, “the case shall proceed as on an initial appeal in accordance with [the Rules of Appellate Procedure].” App.R. 26(B)(7). If the appli cant later establishes that he or she received ineffective assistance of appellate cou nsel, then the appellate court is required to “vacate its prior judgment and enter the a ppropriate judgment,” App.R. 26(B)(9), which might inc lude the reversal of the judgme nt of conviction. Because the case proceeds as an appellate proceeding that has t he ultimate result of the appellate court’s reviewing a trial-court judgment, it is n ot a civil action withinJanuary Term, 2021

9 the meaning of R.C. 2969.25(A)—the statute itself expressly dis tinguishes between a “civil action” and an “appeal of a civil action.” {¶ 23} The majority ignores the court of appeals’ error and leaves sta nding its conclusion that an application to reopen is a civil action. This error will not be easily cabined and has consequences not intended by the General Assembly. The affidavit requirement of R.C. 2969.25(A) applies to “[a] civil action that an inmate commences against the state * * *.” R.C. 2969.21(B)(1)(a). Th e state of Ohio is the adversarial party in a n App.R. 26(B) proceeding. See App.R. 26(B)(3) (requiring the clerk of the court of appeals to serve a copy of the application for reopening on the attorney f or the prosecution); State v. Heinz , 146 Ohio St.3d 374, 2016-Ohio-2814, 56 N.E.3d 965, ¶ 23 (“ The General Assembly has implemented an adversarial system of criminal justice in which the parties to a case contest the issues before a court of law, and it has vested county prosecut ing attorneys with the authority to represent the state in those proceedings”). An Ap p.R. 26(B) application to reopen, then, following the court of appeals’ reasoning, wou ld be a civil action against the state subjecting an i nmate to the requirements of R .C. 2969.25. {¶ 24} Not only does that mean that an inmate would be required to lis t an application for reopening in t he affidavit mandated by R.C. 296 9.25(A) when commencing a civil action against the state or a political subd ivision, but also, the logical consequence of the court of appeals’ holding is that an inmate must also submit an affidavit of prior civil actions at the time that he or she files an application for reopening in the court of appeals. That requirement is not included in App.R. 26(B), and I am not aware of a ny appellate court that treats ap plications to reopen as civil actions subject to the affidavit requirement of R.C. 2 969.25(A). Yet, “[c]ompliance with R.C. 2969.25(A) is mandatory, and failure to comply will
warrant dismissal.” Henton , 146 Ohio St.3d 9, 2016-Ohio-1518, 50 N.E.3d 553, at ¶ 3. Therefore, in the Fifth District, at least, an applicatio n to reopen lacking a compliant affidavit may be summa rily denied without any court c onsidering theS UPREME C OURT OF O HIO

10 merits of the inmate’s claim of ineffective assistance of appel late counsel. That result is contrary to “our recognition of effective appellate c ounsel as a constitutional right guaranteed to all defendants.” Davis , 119 Ohio St.3d 422, 2008-Ohio-4608, 894 N.E.2d 1221, at ¶ 27. {¶ 25} The fallout from leaving the c ourt of appeals’ erroneous holdin g in place as good law is not limited to inmates seeking to vindicat e their rights to the effective assistance of appella te counsel. The court’s reasoni ng applies equally to other proceedings that are civil in nature in which the state o r a political subdivision is the party opposing an inmate. For example, we have recogniz ed that a postconviction-relief proceeding is a civil, collateral attack on a judgment of conviction, State v. Gondor , 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 49, and we have said that the App.R. 26(B) procedure “bears a strong resemblance” to the process for postconviction relief, Morgan v. Eads , 104 Ohio St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶ 12. In fact, usi ng reasoning similar to the Fifth District’s in this case, the Tenth District Court of Appeals has held that an inmate’s “omission of his app eals of the judgments denying h is postconviction motions subjected his action to dismissal.” State ex rel. McGlown v. Mohr , 10th Dist. Franklin No. 14AP-478, 2015-Ohio-1554, ¶ 9. And it will not require much imagination for a prosecutor to seek the dismissal of a petitio n for postconviction
relief on the basis that the inmate who filed it failed to also file an affidavit listing his or her prior civil actions. . {¶ 26} “Our rulings should not promote s uch a “ ‘ “gotcha” principle o f
law.’ ” State v. Craig , 159 Ohio St.3d 398, 2020-Ohio-455, 151 N.E.3d 574, ¶ 51 (Kennedy, J., concurring in judgment only), quoting People v. Whipple , 97 N.Y.2d 1, 7, 734 N.Y.S.2d 549, 760 N.E.2d 337 (2001). The term “civil action” should be accorded its established meaning, and that meaning is not synon ymous with any proceeding that happens to be civil in nature. Because an appl ication for reopening filed pursuant to App.R. 26(B) is not a civil action within the meaning ofJanuary Term, 2021

11 R.C. 2969.25(A), I would reject the court of appeals’ erroneous holding that DeVore’s habeas corpus complaint was subject to dismissal becau se he failed to include his App.R. 26(B) applica tion in his affidavit of prior civil actions. {¶ 27} Nonetheless, I agree with the majority that DeVore has failed t o state a claim that is cognizable in habeas corpus. However, because the majority’s decision today leaves the court of appeals’ erroneous holding i n place, I concur only in the majority’s judgment affir ming the Fifth District’s judgm ent dismissing the complaint.

_________________ Adam M. DeVore, pro se. Dave Yost, Attorney General, and William H. Lamb, Assistant At torney General, for appellee.

_________________