[Cite as Billman v. Meintel , 2023
- Ohio
- 922.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
DAVID BILLMAN , : Case No. 2 2 CA1 0 : P etitioner

- Appell ant , : : v. : DECISION AND JUDGMENT : ENTRY MR

. M EINTEL , W ARDEN , : : RELEASED: 03/20/2023 Respondent

- Appell ee

. :

APPEARANCES:
D avid Billman , Appellant , Pro Se

. David Yost, Ohio Attorney General, and William H. Lamb , Assistant Attorney General , Cincinnati, Ohio for Ap pellee.

Wilkin , J. {¶1} This is an appeal from a Pickaway County Court of Common Pleas judgment entry that d ismissed a ppellant, David Billman’s (“Billman”) , third petition seeking a writ of habeas corpus. The respondent filed a brief in response. After reviewing the parties’ briefs , the record , and the applicable law, we find that the trial court did not err in dismissing Billman ’s habeas petition because he cannot prove under any set of facts that he is unlawfully restr ained of his liberty. Therefore, we affirm the trial court’s judgment dismiss ing his petition

. BACKGROUND {¶ 2 } To better understand our analysis of Billman’s petition , we find that it is important to understand his history in the legal system beginni ng with his convictions for rape and gross sexual imposition (“GSI”) in 2012 as recounted inPickaway App. No. 2 2 CA 1 0 2

the Seventh District Court of Appeals , which reviewed those convictions on direct appeal

. The y found that [Billman] and his wife, Mary Billman were foster paren ts working with Monroe County Child and Family Services. According to testimony, the two live in Monroe County at 31143 Liberty Ridge Rd., Wingett Run, Ohio 45789 and have lived there since 1994. A total of seven children lived in the house under the care of the couple at all periods relevant to this matter. In 2006 [Billman] and his wife accepted responsibility for Child X and Child Y, who had been removed from the home of their biological father due to sexual abuse. According to [Billman 's ] wife, when the two children entered [Billman 's ] home, both had physical indications of sexual abuse. Both children lived in Appellant's home from February of 2005 until the present. [Billman] resided in the family home until 2011, when his wife asked him to leave. [Bill man] moved out on October 28, 2011 after his wife confronted him with the accusations of Child X and Child Y, who told her that [ he ] had been sexually abusing Child Y the entire time she lived with him, and that he had just started abusing Child X. State v. Billman , 7th Dist. Monroe Nos. 12MO3 and 12MO5, 2013

- Ohio

5774, ¶ 2. A jury found Billman guilty of two counts of GSI against C hild X, as well as two counts of rape and five counts of GSI against C hild Y. Id. at ¶ 6. {¶ 3 } On appeal to the Seventh District Court of Appeals , Billman, in part , alleged that his convictions were against the manifest weight of the evidence
because the state did not prove venue, i.e. , the state did not prove that the offenses had occurred in Monroe County. Id. at ¶ 11. The court overruled Billman’s assignment of error finding that “[t] he facts and circumstances in this case support the jury's conclusion that the crimes occurred in Monroe County and venue is proper[,]” and otherwise affirmed his convictions. Id

. at ¶ 13, 49. {¶ 4 } Billman filed an unsuccessful delayed appeal in the Supreme Court of Ohio in State v. Billman , 138 Ohio St.3d 1467, 2014

- Ohio

- 1674, 6 N.E.3d 1203

.Pickaway App. No. 2 2 CA 1 0 3

He also filed an unsuccessful federal petition for habeas corpus in Billman v. Warden , S.D. Ohio N o. 2:14

- CV

- 1910, 2016 WL 931262 (Mar. 11, 2016). {¶ 5 } Billman then filed a petition for writ of habeas corpus in the Pickaway County Court of Common Plea s, which th is court dismissed. Billman v. Smith , 4th Dist. Pickaway No. 19CA18, 2020

- Ohio

- 1358, ¶ 18, appeal not allowed, 159 Ohio St. 3d 1418, 2020

- Ohio

- 3365, 147 N.E.3d 658 , ¶ 18

. On appeal, Billman in part argued that the state f a iled to prove venue resulting in his wrongful imprisonment. Id

. at ¶10. Inter alia, w e found that the trial court properl y dismissed Billman’s petition finding that his claims were not cognizable in a writ of habeas corpus. Id

. at ¶ 22. {¶ 6 } On October 15, 2020 , Billman filed a second petition in the Pickaway County Court of Common Pleas seeking a writ of habeas corpus to be released from prison again asserting , among other allegations , that the state failed to
prove venue. Billman v. Fredricks , 4th Dist. Pickaway No. 19CA1 9 , 202 1

- Ohio

2435 , ¶ 3

. The trial court dismissed appellant ' s petition for failure to state a
cl ai m

. Id

. We affirmed the trial court’s dismissal entry finding among other

reasons that venue is not cognizable in a habeas because it does not allege a jurisdictional defect

. Id . at ¶ 12, citing Starkey v. Shoop , 4th Dist. Ross No. 20CA3705, 2021

- Ohio

- 564, ¶ 12

. {¶ 7 } On February 9, 2022 , Billman filed a third petition seeking a writ of habeas corpus ordering his release from prison , which is at issue in this appeal

. He maintained that the Monroe County Court of Common Pleas lacked jurisdiction to co nvict him of the 20 12 sexual offenses

. Billman alleged that “thePickaway App. No. 2 2 CA 1 0 4

state introduced evidence which proves the location of the essential conduct elements of the crimes alleged in the indictment was in the state of Oregon, not in the state of Ohio.” Therefor e, Billman argue d that “the trial court in Monroe County Ohio could(n)ot have jurisdiction for crimes that were proven to have taken place in Oregon, by the state’s own witness.” Accordingly , Billman alleged that the trial court lacked authority to senten ce him. { ¶ 8 } The respondent filed a Civ.R. 12(B)(6) motion to dismiss Billman’s petition

. Respondent alleged that Billman raised venue in his direct appeal, albeit unsuccessfully. Therefore, respondent argued res judicata bar r ed the court’s considerat ion of Billman’s third petition for habeas relief. {¶9} Respondent also maintain ed that Billman did not attach his commitment papers to his petition as required by R.C. 2725.04(D), which is also fatal to a habeas action

. {¶ 10 } Therefore, the respondent mo ved the trial court to dismiss Billman’s petition or alternatively for the court to grant respondent summary judgment. {¶ 11 } The trial court granted the respondent’s motion to dismiss. The court found that Billman w as not entitled to a writ of habea s corpus because he was using it as a substitute for an appeal or postconviction relief. The court stated that “[Billman] again alleges that venue was not proven at his original trial.” The court also found that res judicata barred his petition. It is t his judgment that Billman appeals. ASSIGNMENTS OF ERROR
I. PICKAWAY COUNTY COURT OF COMMON PLEAS, HEREINAFTER (P.C. COURT) IS IN ERROR FOR MAKING A RULING ON VENUE/INSUFFICIENTPickaway App. No. 2 2 CA 1 0 5

EVIDENCE, WHEREAS THAT IS THE ( O ) PPOSITE OF THE ISSUES RAISED BY MR. BILLMAN. MR. B I LLMAN ARGUED IN HIS HABEAS PETITION THAT THE EVIDENCE (I)S SUFFICIENT TO PROVE WHERE THE ALLEGED CRIMES OCCURRED. MR. BILLMAN (P)ROVED THAT THE EVIDENCE FROM THE TRIAL TRANSCRIPTS (D)OES (S)UFFICIENTLY PROVE THE LOCATION OF THE ESSENTIAL CONDUCT ELE MENTS OF THE ALLEGED CRIMES. WHICH (I)S AN ATTACK ON THE ( J ) URISDICTION OF THE MONROE COUNTY, OHIO, COURT OF COMMON PLEAS, HEREAFTER (THE TRIAL COURT) , BECAUSE THAT SUFFICIENTLY PROVEN LOCATION IS IN THE STATE OF OREGON
II. P.C. COURT IS IN ERROR FOR IGNORING THE ISSUES RAISED BY MR. BILLMAN (OF MR BILLMAN ATTACKING THE TRIAL COURT’S JURISDCITION), AND FOR CLAIMING THAT MR. BILLMAN DID NOT RAISE AN ISSUE THAT IS COGNIZABLE IN A PETITION FOR HABEAS CORPUS RELIEF, WHEREAS MR. BILLMAN DID ATTACK THE JURISDCITION OF THE TRIAL COURTAND AN ATTACK ON THE COURT’S JURISDCITION IS COGNIZABLE IN A HABEAS CORPUS PETITION
III. P.C. COURT IS IN ERROR FOR CLAIMING RES JUDICATA

. WHEREAS, MR BILLMAN ATTACKED THE JURISCITION OF THE TRIAL COURT IN HIS PRESENT PETITION , JURISDCITION H AS NOT BEEN ADJUDICATED IN THE CASE AT BAR AND THE OHIO SUPREME COURT SAID THAT AN ATTACK ON OR A CHALLENGE OF A COURT’S SUBJECT MATTER JURISDCITION CANNOT BE WAIVED OR FOREFEITED.
LAW
A. Standard of Review {¶1 2 } “ Appellate courts conduct a d e novo review of trial court decisions granting a Civ.R

. 12 ( B )( 6 ) motion to dismiss. ” Alexander Loc. Sch. Dist. Bd. of
Educ. v. Vill. of Albany

, 2017

- Ohio

- 8704, 101 N.E.3d 21, ¶ 22 (4th Dist.), citing State ex rel. Ohio Civ. Serv. Emps. Assn. v. State , 14 6 Ohio St.3d 315, 2016

- Ohio

- 478, 56 N.E.3d 913, ¶ 12. “We therefore afford no deference to the trial court's decision, but instead, independently review the trial court's decision.” Id ., citing Struckman v. Bd. of Education of Teays Valley Loc. Sch. Dist

. , 4th Dist. Pickaway No. 16CA10, 2017

- Ohio

- 1177, ¶ 18.Pickaway App. No. 2 2 CA 1 0 6

B. Motion To Dismiss {¶1 3 } A h abeas petition filed against “a government entity or employee” is

a civil action. See McDougald v. Bowerman , 161 Ohio St. 3d 268, 2020

- Ohio

3942, 162 N.E.3d 762 , ¶ 10

. C onsequently, “ [ a ] court may dismiss a habeas action under Civ.R. 12(B)(6) for failure to state a claim upon which relief may be granted [.] ” Handcock v. Shoop , 156 Ohio St. 3d 282, 2019

- Ohio

- 718, 125 N.E.3d 872, ¶ 5, citing Keith v. Bobby , 117 Ohio St.3d 4 70, 2008

- Ohio

- 1443, 884 N.E.2d 1067, ¶ 10. {¶1 4 } A Civ.R. 12(B)(6) motion to dismiss “ tests the sufficiency of the complaint.” Volbers

- Klarich v. Middletown Mgt., Inc., 125 Ohio St.3d 494, 2010

- Ohio

- 2057, 929 N.E.2d 434, ¶ 11. “In order for a court to d ismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery.” O'Brien v. Univ. Community Tenants Union, Inc., 42 Oh io St.2d 242, 245, 327 N.E.2d 753 (1975), syllabus; State ex. rel. Yost v. Rover Pipeline, L.L.C. , 167 Ohio St.3d 223, 2022

- Ohio

- 766, 191 N.E.3d 421, ¶ 18. In its analysis, a court must “presume the truth of all material factual allegations in the complai nt, and make all reasonable inferences in [ non - movant’s ] favor.” Williams

v. MJS Enterprises, Ltd. , 4th Dist. Washington No. 22CA8, 2022

- Ohio

- 3695, ¶
20 , citing Rover Pipeline, L.L.C. at ¶ 6. {¶1 5 } Typically, “ c ourts cannot rely on evidence or allegatio ns outside the complaint to determine a Civ.R. 12(B)(6) motion .” State ex rel. Fuqua v. Alexander, 79 Ohio St.3d 206, 207, 680 N.E.2d 985 (1997) , citing State ex rel.Pickaway App. No. 2 2 CA 1 0 7

Findlay Publishing Co. v. Schroeder , 76 Ohio St.3d 580, 581, 669 N.E.2d 835 (1996). How ever, “ ‘ [d] ocuments attached to or incorporated into the complaint may be considered on a motion to dismiss pursuant to Civ.R. 12(B)(6). ’ ” State ex rel. Washington v. D'Apolito , 156 Ohio St. 3d 77, 2018

- Ohio

- 5135, 123 N.E.3d 947, ¶ 10 , quoting NCS Health care, Inc. v. Candlewood Partners, L.L.C. , 160 Ohio App.3d 421, 2005

- Ohio

- 1669, 827 N.E.2d 797, ¶ 20 (8th Dist.). See also , So uthgate Dev. Corp. v. Columbia Gas Transm. Corp. , 48 Ohio St.2d 211, 358 N.E.2d 526 (1976), paragraph one of the syllabus (“The t rial court is not confined to the allegations of the complaint when determining its subject

- matter jurisdiction pursuant to a Civ.R. 12(B)(1) motion to dismiss, and it may consider material pertinent to such inquiry without converting the motion into one f or summary judgment.”). “A court is not required to accept allegations in a complaint as true when they are contradicted by documents attached to the complaint.” D'Apolito at ¶ 10, citing S tate ex rel. Edwards v. Toledo City Sch. Dist. Bd. of Edn. , 72 Oh io St.3d 106, 109, 1995

- Ohio

- 251, 647 N.E.2d 799. C. Habeas Corpus {¶1 6 } A petition for habeas corpus must be accompanied by copies of relevant commitment papers. R.C. 2725.04(D); Day v. Wilson , 116 Ohio St.3d 566, 2008

- Ohio

- 82, 880 N.E.2d 919, ¶ 4. I f a pe titioner fails to attach copies of
these docum e nts , then their petition is “fatally defective[.]” Clark v. Sheriff Tom
Miller Medina Cnty. Jail , 9th Dist. Medina No. 19CA21

- M, 2019

- Ohio

- 4906, 870 N.E.2d 1191, ¶ 3, citing Bloss v. Rogers , 65 Ohio St.3d 145 , 146, 602 N.E.2d 602 (1992)

.Pickaway App. No. 2 2 CA 1 0 8
{¶1 7 } “ In habeas corpus cases, the burden of proof is on the petitioner to establish his right to release.” Chari v. Vore , 91 Ohio St. 3d 323, 325, 2001

- Ohio

- 49, 744 N.E.2d 763, citing Halleck v. Koloski , 4 Ohio St.2d 76, 77 , 212 N.E.2d 601 (1965). “To be entitled to a writ of habeas corpus, a petitioner must show that he is being unlawfully restrained of his liberty and that he is entitled to immediate release from prison or confinement.” McKinney v. Haviland , 162 Ohio St. 3d 150, 2020

- Ohio

- 4785, 164 N.E.2d 415, ¶ 6, citing R.C. 2725.01 ; State ex rel. Cannon v. Mohr

, 155 Ohio St.3d 213, 2018

- Ohio

- 4184, 120 N.E.3d 776, ¶
10

. Like other extraordinary

- writ actions, “ habeas corpus is not available when the petitioner has or had an adequate remedy in the ordinary course of the law , unless the trial court's judgment is void for lack of jurisdiction. ” State ex rel. Davis v. Turner

, 164 Ohio St.3d 395, 2021

- Ohio

- 1771, 172 N.E.3d 1026, ¶ 8 , Leyman v. Bradshaw

, 146 Ohio St.3d 522, 20 16

- Ohio

- 1093, 59 N.E.3d 1236, ¶
8

- 9

. Consequently, “ [w] hen a court's judgment is void because the court lacked subject

- matter jurisdiction, habeas corpus is generally an appropriate remedy despite the availability of appeal.” Davis v. Wolfe , 92 Ohio St. 3d 549, 552, 2001

- Ohio

- 1281, 751 N.E.2d 1051.

D. Venue vs. Subject

- Matter Jurisdiction {¶1 8 } “ ‘[J]urisdiction and venue are not the same, as the former
denotes the power of the court to hear the case and the latter denotes the situs of trial.’ ” Armengau , 2017

- Ohio

- 4452, 93 N.E.3d 284, ¶ 106 (10th Dist.), quoting State v. Giffin , 62 Ohio App.3d 396, 403, 575 N.E.2d 887 (10 th Dist.1991), citing State v. Loucks , 28 Ohio App.2d 77, 274 N.E.2d 773 (4 th Dist.1971).Pickaway App. No. 2 2 CA 1 0 9

1. Subject

- Matter Jurisdiction {¶ 19 } “Subject

- ma tter jurisdiction refers to the constitutional or statutory power of a court to adjudicate a particular class or type of case. ” State v. Harper , 160 Ohio St. 3d 480, 2020

- Ohio

- 2913, 159 N.E.3d 248, ¶ 23 , citing Pratts v. Hurley , 102 Ohio St.3d 81, 2004

- Oh io

- 1980, 806 N.E.2d 992, ¶ 11

- 12, 34

. “[C] ourts of common pleas * * * are created by the Ohio Constitution and have statewide subject

- matter jurisdiction” pursuant to Section s 4(A) and (B), Article IV, Ohio Constitution. Cheap Escape Co. v. Haddox, LLC , 1 20 Ohio St. 3d 493,
2008

- Ohio

- 6323, 900 N.E.2d 601, ¶ 7. Pursuant to R.C. 2901.11(A)(1), “ [t] he State of Ohio has subject

- matter jurisdiction over a crime if any element of the offense, under the laws of this state, takes place in Ohio .” State v. Cayavec , 7th Dist. Mahoning No. 19 MA 0069, 2020

- Ohio

- 3610, ¶ 28

. {¶2 0 } “[Subject

- matter jurisdiction] is a ‘condition precedent to the court's ability to hear the case. If a court acts without jurisdiction, then any proclamation by that court is void.’ ” Hu rley at ¶ 11, quoting State ex rel. Tubbs Jones v. Suster , 84 Ohio St.3d 70, 75, 701 N.E.2d 1002 (1984). “When subject

- matter is lacking it can be raised at any time , it is not barred by the doctrine of res judicata , and it renders a judgment void as oppo sed to voidable.” State v. Mitchell , 2021

- Ohio

- 4386, 181 N.E.3d 550, ¶ 11 (4th Dist.), citing State v. Helms , 7th Dist. Mahoning No. 14MA96, 2015

- Ohio

- 1708, ¶ 15; State v. Lomax, 96 Ohio St.3d 318, 2002

- Ohio

- 4453, 774 N.E.2d 249, ¶ 17; State v. Wilson , 73 Ohio St.3d 40, 45, 652 N.E.2d 196 (1995), fn. 6

. S ee also State v. Perry , 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraphs six and nine of the syllabus.Pickaway App. No. 2 2 CA 1 0 10

2. Venue {¶ 21 } If a court has subject

- matter jurisdiction over a criminal case, venue must also be determined, i.e. , where precisely in Ohio should the case be entertained. The Ohio Constitution provides that venue “ ‘ is the proper place [within Ohio] to try a criminal matter [

. ]’ ” State v. Hampton , 134 Ohio St. 3d 447,
2012

- Ohio

- 5688, 983 N.E.2d 324, ¶ 19, quoting State v. Headley, 6 Ohio St.3d 475, 477, 453 N.E.2d 716 (1983). Specifically, “[v]enue is established under Article I, Section 10 of the Ohio Constitution, which requires criminal trials to be held in the ‘ county in which the offense is all eged to have been committed.’ ” (Emphasis added.) State v. Moore , __ Ohio St.3d __, 2022

- Ohio

- 1460, __ N.E.3d__, ¶ 11 , quoting Article I, Section 10 of the Ohio Constitution

. {¶2 2 } “ ‘Although it is not a material element of the offense charged,

ven ue is a fact which must be proved in criminal prosecutions unless it is waived by the defendant.’ ” State v. Billman , 7th Dist. Monroe Nos. 12MO3 and 12MO5,
2013

- Ohio

- 5774, ¶ 11, quoting Headley, 6 Ohio St.3d 475, 477, 453 N.E.2d 716 (1983). “ I rregularit ies in venue, when a court has jurisdiction over the subject matter, generally make the judgment merely voidable rather than void.” State v. Barnes , 7 Ohio App. 3d 83, 85, 454 N.E.2d 572 (3d Dist.1982). “[I] f a judgment
is voidable , the doctrine of res j udicata bars a party from raising and litigating in any proceeding, except a direct appeal.” State v. Henderson , 161 Ohio St. 3d 285, 2020

- Ohio

- 4784, 162 N.E.3d 776, ¶ 19 citing State v. Perry , 10 Ohio St.2d 175, 178

- 179, 226 N.E.2d 104 (1967) , p aragraph nine of the syllabus

.Pickaway App. No. 2 2 CA 1 0 11

ANALYSIS {¶ 2 3 } Before we address Billman’s assignments of error, we address the
state ’s claim that the trial court’s judgment of dismissal can be affirmed solely because Billman did not attach his commitment papers to his habeas p etition. The respondent is correct that “[a] petitioner's failure to attach all pertinent commitment papers renders the petition fatally defective [,] ” which warrant s the petition’s dismissal

. Nedea v. Cook , 4th Dist. Hocking No. 15CA12, 2015

- Ohio

3668, ¶ 9, citing Tucker v. McAninch, 82 Ohio St.3d 423, 1998

- Ohio

- 220, 696 N.E.2d 595 . However , the record appears to show that Billman attached his 2012 sentencing entry to his petition herein. Ther efore, we find that the state’s argument lacks merit. ASSIGNM ENTS OF ERROR II and III {¶ 2 4 } Billman’s second and third assignments of error both address the trial court’s dismissal of his petition on procedural grounds . Therefore, we will address them together , and prior to address ing his first assignment of error

. {¶ 2 5 } In his second assignment of error, Billman alleges that the trial court erred in concluding that his petition failed to set forth a cognizable habeas claim

. I n his third assignment of error, Billman contends that the trial court erred in
holdi ng that its consideration of his petition was barred by res judicata. Billman argues that unlike his prior two habeas petitions , in which he claimed that the state failed to prove venue, his petition herein attacked the subject

- matter jurisdiction of the Monroe County Court of Common P leas regarding his 2012 convictions for rape and GSI . This, he argues, means that his petition is at leastPickaway App. No. 2 2 CA 1 0 12

cognizable as a habeas action because it attacks the trial court’s jurisdiction,
and , therefore , is also not preclude d from consideration by res judicata

. {¶ 2 6 } Contrary to the trial court ’s determination that Billman’s petition
herein challenged venue, a review of t h at pleading reveals that he challenge d the subject

- matter jurisdiction of the Monroe County Court of Com mon Pleas by arguing that the events that resulted in his conviction s occurred in Oregon, not Ohio , which, if true, would render his 2012 convictions void

. Hurley , 102 Ohio St.3d 81, 2004

- Ohio

- 1980, 806 N.E.2d 992, ¶ 11. Therefore, we find that the trial court erred in determining that his petition was precluded by res judicata. Mitchell , 2021

- Ohio

- 4386, 181 N.E.3d 550, ¶ 11 (4th Dist.) Consequently, we sustain Billman’s second and third assignments of error to the extent that res judicata do es not prev ent consideration of a challenge to a court’s subject

- matter jurisdiction , i.e. , he has set out a cognizable habeas claim

. {¶2 7 } However, it is important to note that fi nding that Billm a n has set out

a cognizable habeas action merely means his petition for a writ of habeas co r pus is a proper method to challenge subject

- matter jurisdiction ; it does not mean the petition has merit

. See generally F.D.I.C. v. Meyer , 510 U.S. 471, 476, 114 S. Ct. 996, 1001, 127 L. Ed. 2d 308 (1994) , q uoting Black's Law Dict ionary 259 (6th ed. 1990) ( “ Cognizable ordinarily means ‘ [ c ] apable of being tried or examined before a designated tribunal [

. ] ’ ” (Emphasis added.) T o determine whether Billman has set forth a successful petition, we must address his first assignment of e rror.Pickaway App. No. 2 2 CA 1 0 13

ASSIGNMENT OF ERROR I {¶ 2 8 } In his first assignment of error , Billman maintains that an Ohio c ourt of c ommon p leas lacked jurisdiction to try and convict him of the 2012 rape and GSI charges. He claims that “jurisdiction [for these charges] belo ngs to the state of Oregon, not in the state of Ohio.” Therefore, he asserts, his underlying rape and GSI convictions are void because they occurred in Oregon , but were tried in Ohio, which , if true, w ould s upport a writ of habeas corpus. Wolfe , 92 Ohio St. 3d 549, 552, 2001

- Ohio

- 1281, 751 N.E.2d 1051. {¶ 29 } Initially we recognize that Billman relies on transcripts of the testimony from his criminal trial to support his petition . Typically, in deciding a Civ.R. 12(B)(6) motion to dismiss, a court cannot consider materials beyond the complaint, or in this case Billman’s petition. Alexander, 79 Ohio St.3d 206, 207, 680 N.E.2d 985 (1997). However, in his habeas petition Billman incorporated by reference testimony from his criminal trial transcripts to sup port his argument that the trial court lacked subject

- matter jurisdiction. Therefore, in our de novo review of the trial court’s judgment of dismissal, our consideration of the trial transcripts is permissible. D'Apolito , 2018

- Ohio

- 5135, 156 Ohio St. 3d 77, 80, 123 N.E.3d
947. See also , Southgate Dev. Corp. v. Columbia Gas Transm. Corp. , 48 Ohio St.2d 211, 358 N.E.2d 526 (1976), paragraph one of the syllabus. {¶ 3 0 } During Billman’s 2012 cr i minal trial , both Child X and Y occasionally offered testim ony that they were sexually abused by their biological father, who lived in Oregon

. However, the state of Ohio brought GSI and rape charges against Billman in 2012, for acts that he committed against Child X and Y thatPickaway App. No. 2 2 CA 1 0 14

occurred in 2011, which was six year s after the children moved from Oregon to Monroe County, Ohio, to live with Billman and his wife. B oth children offered testimony at Billman’s trial that specifically identified Billman as the perpetrator of GSI and rape against them , including testimony from Child Y acknowledging Billman put his penis in her mouth

. In other words, the state charged Billman
with , and he was convicted of , committing GSI and rape in Ohio

. Therefore, we find that Billman has failed his burden as a habeas petitioner to prove that t he Monroe County Court of C ommon P leas of Ohio lacked subject

- matter jurisdiction over him regarding his 2012 GSI and rape convictions as required by Vore , 91 Ohio St. 3d 323, 325, 2001

- Ohio

- 49, 744 N.E.2d 76

. CONCLUSION {¶ 3 1 } Pursuant to our de n ovo review, we sustain Billman’s second and third assignments of error because the trial court erred in finding that it was procedurally barred by res judicata from considering Billman’s petition since it raised subject

- matter jurisdiction . However, we ov errule Billman’s first assignment of error b ecause he can show no set of facts that he is “being unlawfully restrained of his liberty and that he is entitled to immediate release from prison or confinement

. ” Haviland , 162 Ohio St.3d 150, 2020

- Ohio

- 4785, 16 4 N.E.2d 415, ¶ 6. Rather, Billman is currently serving a valid prison sentence from his 2012 convictions for GSI and rape in the Monroe County Court of Common Pleas, which had subject matter juris di ction to try , and did, convict him of these offenses.Pickaway App. No. 2 2 CA 1 0 15
{¶3 2 } Therefore, we ultimately find that the trial court did not err in granting the state’s Civ.R. 12(B)(6) motion to dismiss Billman’s petition for failure to state a claim upon which relief can be granted. Accordingly , we affirm the trial court’s judgm ent granting the respondent ’s motion dismissing Billman’s petition for a writ of habeas corpus

. JUDGMENT AFFIRMED

.Pickaway App. No. 2 2 CA 1 0 16

JUDGMENT ENTRY It is ordered that the JUDGMENT IS AFFIRMED and appellant shall pay the costs. The Court finds there were rea sonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Pickaway County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant t o Rule 27 of the Rules of Appellate Procedure. P.J., Smith and J., Abele : Concur in Judgment and Opinion. For the Court,

BY:

_________________________ Kristy S. Wilkin, Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.