[Cite as Cervenak v. Miller, 2010-Ohio-5415.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
ROBERT CERVENAK, )
)
PETITIONER, )
)
VS. ) CASE NO. 10-BE-14
)
MICHELE MILLER, WARDEN, ) OPINION
BELMONT CORRECTIONAL ) AND
INSTITUTION, ) JUDGMENT ENTRY
)
RESPONDENT. )
CHARACTER OF PROCEEDINGS: Petition for Writ of Habeas Corpus
JUDGMENT: Dismissed
APPEARANCES:
For Petitioner Robert L. Cervenak, pro-se
Belmont Correctional Institution
68518 Bannock Road
S.R. 331
St. Clairsville, Ohio 43950
For Respondent Richard Cordray
Ohio Attorney General
M. Scott Criss
Assistant Attorney General
Criminal Justice Section
150 E. Gay Street, 16th Floor
Columbus, Ohio 43215
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Dated: November 2, 2010
[Cite as Cervenak v. Miller, 2010-Ohio-5415.]
PER CURIAM.
{¶1} Petitioner Robert Cervenak has filed a pro se petition for writ of habeas
corpus against Respondent Michele Miller, Warden of the Belmont Correctional
Institution. Respondent has filed a motion to dismiss the petition.
{¶2} The facts and circumstances leading to Petitioner’s current
incarceration at the Belmont Correctional Institution are difficult to discern from the
petition. Apparently, the Lorain County Common Pleas court sentenced Petitioner to
prison in case no. 03-CR-063978. Petitioner alleges that he had served that entire
prison term when the Adult Parole Authority “attempted” to impose post-release
control upon him. He argues that he was never notified about post-release control at
the sentencing hearing or in the sentencing entry.
{¶3} Respondent argues that Petitioner failed to attach a copy of his
commitment papers to his petition for writ of habeas corpus. R.C. 2725.04 states
that:
{¶4} “Application for the writ of habeas corpus shall be by petition, signed
and verified either by the party for whose relief it is intended, or by some person for
him, and shall specify:
{¶5} “***
{¶6} “(D) A copy of the commitment or cause of detention of such person
shall be exhibited, if it can be procured without impairing the efficiency of the remedy;
or, if the imprisonment or detention is without legal authority, such fact must appear.”
{¶7} Failure to attach copies of commitment papers, such as the judgment
entry of sentence, as part of the original filing of the petition for habeas corpus
requires the dismissal of the petition. Bloss v. Rogers (1992), 65 Ohio St.3d 145, 146,
602 N .E.2d 602. Attaching only some of the paperwork is insufficient, the petitioner
must attach all of the relevant commitment papers or the petition is defective. See
State ex rel. Johnson v. Ohio Dept. of Rehab. & Corr., 95 Ohio St.3d 70, 2002-Ohio-
1629, 765 N.E.2d 356. As the Ohio Supreme Court explained:
{¶8} “These commitment papers are necessary for a complete
understanding of the petition. Without them, the petition is fatally defective. When a
petition is presented to a court that does not comply with R.C. 2725.04(D), there is no
-2-
showing of how the commitment was procured and there is nothing before the court
on which to make a determined judgment except, of course, the bare allegations of
petitioner’s application.” Bloss, supra.
{¶9} Here, Petitioner has failed to attach his commitment papers to his
petition. The reason they are required to be attached to the petition is especially
apparent in this case. In other words, as the Ohio Supreme Court observed, they are
necessary for a complete understanding of the petition. Consequently, the petition is
fatally defective and must be dismissed.
{¶10} Furthermore, sentencing errors are not jurisdictional and are not
cognizable in habeas corpus. Majoros v. Collins (1992), 64 Ohio St.3d 442, 443, 596
N.E.2d 1038, 1039. See, also, State ex rel. Marini v. Tate (May 19, 1998), 7th Dist.
No. 97 BA 59 (refusing to hear petitioner’s claim in habeas that he should have been
sentenced under post-Senate Bill 2 law). Petitioner has or had adequate remedies at
law by appeal or postconviction relief to review the alleged sentencing error. State ex
rel. Massie v. Rogers (1997), 77 Ohio St.3d 449, 450, 674 N.E.2d 1383, 1383.
{¶11} For the foregoing reasons, Respondent’s motion to dismiss is granted
and Petitioner’s petition for writ of habeas corpus is hereby dismissed.
{¶12} Costs taxed against Petitioner. Final order. Clerk to serve notice on
the parties as required by the Ohio Rules of Civil Procedure.
Donofrio, J. concurs.
Vukovich, P.J. concurs.
Waite, J. Concurs.