[Cite as Starkey v. Shoop, 2021-Ohio-564.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
DONALD STARKEY, :
: Case Nos. 20CA3705
Petitioner-Appellant, :
:
v. : DECISION AND JUDGMENT
: ENTRY
TIMOTHY SHOOP, Warden, :
:
Respondent-Appellee. : RELEASED: 02/26/2021
_____________________________________________________________
APPEARANCES:
Donald Starkey, Appellant, Pro Se.
Jeri Fosnaught, Assistant Attorney General, for Appellee.
____________________________________________________________
Wilkin, J.
{¶1} This is an appeal from a Ross County Court of Common Pleas
judgment entry that dismissed Appellant, Donald Starkey’s, petition seeking a
writ of habeas corpus. After our review of the record and the applicable law, we
affirm the trial court’s judgment.
BACKGROUND
{¶2} On May 29, 2014, the State charged Appellant with six counts of
unlawful sexual conduct with a minor in violation of R.C. 2907.04 and three
counts of sexual imposition in violation of R.C. 2907.06. State v. Starkey, 4th
Dist. Licking No. 14-CA-92, 2015-Ohio-3115, ¶ 1. On September 3, 2014,
Appellant pled guilty to three counts of unlawful sexual conduct and three counts
of sexual imposition involving a thirteen-year-old victim. Three weeks later, he
filed a motion to withdraw his plea arguing that “shortly after his guilty plea, the
Ross App. No. 20CA3705 2
[Appellant], after giving much thought to the situation, decided that he did not
want to proceed with sentencing, and, in the alternative, would like to go to trial,
as he strongly feels he is not guilty to the charges herein.” However, at the
hearing two days later, Appellant decided not to withdraw his guilty plea. During
this hearing, the following exchange occurred:
THE COURT: Good morning. This is Case No.2014 CR 433, the
State of Ohio versus Donald Starkey. The record should reflect
the Defendant is present here in open court represented by
counsel, Mr. Wolfe; counsel for the State is present, Ms.
Sawyers; representative of Adult Court Services is present, Mr.
Burke. I think we're here today scheduled for an oral hearing on
a motion to withdraw a guilty plea, I believe. What's your
pleasure, Mr. Wolfe?
MR. WOLFE: Thank you, Your Honor. At this point, after careful
consideration, Mr. Starkey has determined that he would like to
withdraw his motion to withdraw his guilty plea. He will
participate in a presentence investigation with Adult Court
Services and we're set for sentencing on October 13th. I believe
Mr. Burke from Adult Court Services has indicated that he will
still be able to complete the presentence investigation for the
Court by that date, so then we would be good to stay with
October 13th.
THE COURT: Is that your plan, Mr. Starkey?
DEFENDANT: Yes.
THE COURT: Okay. Well then we'll keep on schedule then.
Starkey, 4th Dist. Licking No. 14-CA-92, 2015-Ohio-3115, ¶ 10.
On October 13th, the trial court imposed an aggregate nine-year prison term.
{¶3} On appeal, Appellant raised two assignments of error: (1) “the trial
court committed harmful error in failing to fully inquire into Defendant-Appellant’s
request to withdraw his previously entered guilty pleas,” and (2) “the sentencing
Ross App. No. 20CA3705 3
of Appellant was in error.” Id. at ¶ 6,7. With regard to Appellant’s first
assignment of error, the court of appeals stated:
During the hearing, appellant was represented by counsel who
indicated appellant wished to withdraw his motion and proceed
with the presentence investigation. When specifically asked,
appellant agreed that was his plan. Appellant then cooperated
with the presentence investigation, and during the over two week
period through sentencing, did not deny his guilt. Id., ¶ 11.
The court of appeals then concluded: “Upon review, we do not find that the trial
court failed to fully inquire.” Id., ¶ 12. The court of appeals also overruled
Appellant’s second assignment of error, and, on July 31, 2015, issued a
judgment affirming the trial court’s judgment of conviction. Id., ¶ 20, 21.
{¶4} More than four years later, on February 27, 2019, Appellant, acting
pro se, filed a “motion to vacate void plea.” Appellant’s brief stated that he “still
maintains his innocence,” argued that his “counsel and the court failed to
properly advise him of the penalties associated with the guilty plea,” and “the
court did not explain the registration requirements of Tier II sex offenders,”
thereby rendering his plea in violation of Crim.R. 11, i.e. his plea was not
knowingly, voluntarily or intelligently entered. On April 29, 2019, the trial court
dismissed Appellant’s motion, finding it was an untimely filed petition for post-
conviction relief.
{¶5} On December 17, 2019, Appellant filed a petition in the Ross County
Court of Common Pleas for a writ of habeas corpus to compel the Appellee,
Timothy Shoop, the Warden, to release him from prison. Appellee filed a Civ.R.
12(B)(6) motion to dismiss Appellant’s petition.
Ross App. No. 20CA3705 4
{¶6} On February 4, 2020, the trial court issued a judgment granting
Appellee’s motion, dismissing Appellant’s petition. The trial court reasoned that
habeas corpus was not cognizable because: (1) Appellant had a remedy in the
ordinary course of the law, (2) Appellant was not entitled to immediate release
from prison, (3) Appellant failed to comply with R.C. 2969.25(A), and (4)
Appellant failed to comply with R.C. 2969.25(C)(1). It is from this judgment that
Appellant appeals, asserting four “issues,” which we will treat as assignments of
error. Because each “assignment” is resolved on the same or similar grounds,
we will address all four assignments of error together.
ASSIGNMENTS OF ERROR
I. IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL COURT
TO RULE AGAINST PRECEDENT
II. IT WAS AN ABUSE OF DISCRETION FOR THE TRIAL COURT
TO NOT GIVE A COMPLETE REVIEW OF PETITION
III. THE TRIAL COURT COMMITTED PLAIN ERROR IN DENYING
PETITIONER’S PETITION
IV. THE PETITIONER WAS DENIED EQUAL TREATMENT &
PROTECTION UNDER THE LAW IN VIOLATION OF HIS RIGHTS
UNDER THE 5TH, 6TH, & 14TH AMENDMENTS OF THE UNITED
STATES CONSTITIUTION WHEN THE TRIAL COURT IGNORED
HIS MOTION FOR EXTENSION OF TIME
{¶7} In his first assignment of error, Appellant argues the trial court
abused its discretion by not following precedent that required the trial court to
inform him regarding sexual offender registration obligations, which he alleges
violated Crim.R. 11, i.e. his plea was not knowing, intelligent, or voluntary. In his
second assignment of error, Appellant alleges that the trial court abused its
discretion by failing to fully consider his motion to withdraw his guilty plea. In his
Ross App. No. 20CA3705 5
third assignment of error, he asserts that the trial court committed plain error by
not granting his petition because he is factually innocent. Lastly, Appellant
alleges that he was denied his right to equal protection when the trial court
denied his motion for an extension of time to reply to the Appellee’s motion to
dismiss.
{¶8} In response, the Appellee argues that Appellant’s claims are not
cognizable in a habeas action because he had an adequate remedy in the
ordinary course of the law, Appellant is not entitled to immediate release from
prison, Appellant failed to comply with R.C. 29269.25 when he filed his habeas
action, and the trial court’s decision denying his motion for an extension of time
to respond is within the trial court’s discretion. Therefore, the Appellee argues
because Appellant’s claims are not cognizable in a habeas action, the trial court’s
judgment should be affirmed.
LAW
1. Standard of Review
{¶9} A court may dismiss a habeas action under Civ.R.
12(B)(6) for failure to state a claim upon which relief can be
granted “if, after all factual allegations are presumed true and all
reasonable inferences are made in [the petitioner's] favor, it
appears beyond doubt that he could prove no set of facts
entitling him to the requested extraordinary relief in habeas
corpus.” Smith v. Sheldon, 157 Ohio St. 3d 1, 2019-Ohio-1677,
131 N.E.3d 1, ¶ 5, quoting Keith v. Bobby, 117 Ohio St.3d 470,
2008-Ohio-1443, 884 N.E.2d 1067, ¶ 10.
Appellate review of a dismissal for failure to state a claim is de novo. Hammond
v. Perry, 4th Dist. Hocking No. 12CA27, 2013-Ohio-3683, ¶ 11, citing Allen v.
Bryan, 4th Dist. Hocking No. 12CA15, 2013-Ohio-1917, ¶ 7. This means the
Ross App. No. 20CA3705 6
reviewing court “affords no deference to a trial court's decision and, instead,
applies its own, independent review to determine if the Civ.R. 12(B)(6)
requirements were satisfied.” Id., citing McDill v. Sunbridge Care Ents., Inc., 4th
Dist. Pickaway No. 12CA8, 2013-Ohio-1618, at ¶ 10.
2. Habeas Corpus
{¶10} “Habeas corpus petitions are governed by R.C. [Chapter] 2725.”
Steele v. Jenkins, 4th Dist. Ross No. 18CA3630, 2018-Ohio-4103, ¶ 9. “A
habeas corpus petition is available to any person who is ‘unlawfully restrained of
his liberty * * * to inquire into the cause of such imprisonment, restraint, or
deprivation.’ ” Hinton v. Shoop, 4th Dist. Ross No. 17CA3619, 2018-Ohio-3647, ¶
11, quoting R.C. 2725.01. “[T]he petitioner has the burden of establishing his
right to release.” Id. ¶ 12, citing Halleck v. Koloski, 4 Ohio St.2d 76, 77, 212
N.E.2d 601 (1965); Yarbrough v. Maxwell, 174 Ohio St. 287, 288, 189 N.E.2d
136 (1963). “[I]f the petition states a claim for which habeas corpus relief cannot
be granted, the court should not allow the writ and should dismiss the petition.”
Id., citing Pegan v. Crawmer, 73 Ohio St.3d 607, 609, 653 N.E.2d 659 (1995).
{¶11} “ ‘ “Like other extraordinary-writ actions, habeas corpus is not
available when there is an adequate remedy in the ordinary course of law.” ’ ”
Lloyd v. Robinson, 4th Dist. Ross No. 14CA3462, 2015-Ohio-1331, ¶ 19, quoting
Billiter v. Banks, 135 Ohio St.3d 426, 2013-Ohio-1719, 988 N.E.2d 556, ¶ 8,
quoting In re Complaint for Writ of Habeas Corpus for Goeller, 103 Ohio St.3d
427, 2004-Ohio-5579, 816 N.E.2d 594, ¶ 6. “ ‘An appeal is generally considered
an adequate remedy in the ordinary course of law sufficient to preclude a writ.’
Ross App. No. 20CA3705 7
” State v. Bradford, 4th Dist. Ross No. 17CA3613, 2018-Ohio-1907, ¶ 10, quoting
Shoop v. State, 144 Ohio St.3d 374, 2015-Ohio-2068, 43 N.E.3d 432, ¶ 8.
“The fact that a direct appeal may no longer be available to [a petitioner] does not
render the legal remedy inadequate or thereby entitle [the petitioner] to the
extraordinary writ of habeas corpus.” State v. Jenkins 4th Dist. Ross No.,
18CA3630, 2018-Ohio-4103, ¶ 10, citing Jackson v. Wilson, 100 Ohio St.3d 315,
2003-Ohio-6112, 798 N.E.2d 1086, ¶ 9.
{¶12} A successful habeas “petitioner must be able to establish that his
present incarceration is illegal because the trial court that rendered the conviction
lacked jurisdiction over the criminal case.” Jenkins, at ¶ 9, citing R.C. 2725.05.
But, “habeas corpus is not the proper mode of redress where the petitioner has
been convicted of a criminal offense and sentenced to imprisonment therefor by
a court of competent jurisdiction.” Pollock v. Morris, 35 Ohio St. 3d 117, 117-
118, 518 N.E.2d 1205 (1988). If “the petitioner asserts that the trial court
committed non-jurisdictional errors in the underlying case, the errors can be
adequately reviewed in a direct appeal of the conviction and the habeas corpus
petition is subject to dismissal.” Jenkins 4th Dist. Ross No., 18CA3630, 2018-
Ohio-4103, ¶ 9, citing State ex rel. Harsh v. Sheets, 132 Ohio St.3d 198, 2012-
Ohio-2368, 970 N.E.2d 926; State ex rel. Shackleford v. Moore, 116 Ohio St. 3d
310, 2007-Ohio-6462, 878 N.E.2d 1035. For example, “the issue of whether [a
petitioner] made an intelligent, knowing, and voluntary guilty plea is a matter to
be resolved by motion to withdraw the guilty plea, direct appeal, or postconviction
proceedings, rather than in habeas corpus.” Douglas v. Money, 85 Ohio St. 3d
Ross App. No. 20CA3705 8
348, 349, 1999-Ohio-381, 708 N.E.2d 697 (1999), citing Morris, 35 Ohio St.3d at
117-118, 518 N.E.2d 1205 (1988). Therefore, “allegations concerning the validity
of [a petitioner’s] plea are not legally sufficient to delineate a feasible claim for a
writ of habeas corpus.” Lopez v. Gansheimer,11th Dist. Ashtabula No. 2006-A-
0014, 2007-Ohio-472, ¶ 7.
3. R.C. 2969.25
{¶13} R.C. 2969.25(A) requires an inmate who files a civil action to “file
with the court an affidavit that contains a description of each civil action or appeal
of a civil action that the inmate has filed in the previous five years in any state or
federal court.” And if the inmate “seeks a waiver of the prepayment of the full
filing” * * * the inmate shall file * * * an affidavit that the inmate is seeking a waiver
of the prepayment of the court's full filing fees and an affidavit of indigency”
pursuant to R.C. 2969.25(C). “ ‘The requirements of R.C. 2969.25 are
mandatory, and failure to comply with them subjects an inmate's action to
dismissal.’ ” Ohio Atty. Gen. v. Brock, 4th Dist. Hocking No. 14CA19, 015-Ohio-
4173, ¶ 17, quoting Boles v. Knab, 129 Ohio St.3d 222, 2011-Ohio-2859, 951
N.E.2d 389, ¶ 1. A petition seeking a writ of habeas corpus is a civil action to
which R.C. 2969.25(A) applies. Fuqua v. Williams, 100 Ohio St.3d 211, 2003-
Ohio-5533, 797 N.E.2d 982, ¶ 6.
ANALYSIS
1. R.C. 2969.25
{¶14} We begin our analysis by considering the procedural requirements
of R.C. 2969.25. Appellant did not comply with either requirement of R.C.
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2969.25 in filing his petition in the trial court. This alone justified the trial court’s
dismissal of his petition. Brock, 4th Dist. Hocking No. 14CA19, 015-Ohio-4173, ¶
17.
2.Habeas Corpus
{¶15} First, it is axiomatic that a common pleas court has original
jurisdiction in felony cases. Click v. Eckle, 174 Ohio St. 88, 89, 186 N.E.2d 731
(1962), citing R.C. 2931.03. Consequently, the trial court had jurisdiction to deny
Appellant’s request for an extension of time, accept Appellant’s plea, find him
guilty, and impose sentence. Accordingly, Appellant’s petition for a writ of
habeas was not cognizable because the trial court had jurisdiction over his
criminal case. Morris, 35 Ohio St. 3d at 117-118, 518 N.E.2d 1205 (1988).
{¶16} Second, Appellant had remedies in the ordinary course of the law in
which he raised, or could have raised, the issues that he asserts in his
assignments of error. Appellant did raise the issue of whether the trial court
properly reviewed his motion to withdraw his guilty plea in the direct appeal.
Starkey, 4th Dist. Licking No. 14-CA-92, 2015-Ohio-3115. Appellant could have
raised an actual innocence claim in the trial court. State v. Turner, 4th Dist.
Scioto No. 01CA2786, 2001-Ohio-2636 (“Actual innocence is normally contested
at trial and direct appeal on the basis of the weight or sufficiency of admissible
evidence.”). Therefore, because Appellant had a remedy in the ordinary course
of the law by way of a direct appeal in which he raised, or could have raised,
these arguments, his habeas petition was not cognizable. Robinson, 4th Dist.
Ross No. 14CA3462, 2015-Ohio-1331, ¶ 19.
Ross App. No. 20CA3705 10
{¶17} Third, with regard to his assignment of error regarding his request
for an extension of time, such a decision is typically within a trial court’s
discretion. See e.g. State v. Toliver, 4th Dist. Athens No. 19CA3, 2019-Ohio-
3669, ¶ 22. Even assuming arguendo that the trial court abused its discretion in
denying Appellant’s motion for extension of time, it would not render Appellant’s
imprisonment unlawful. Consequently, Appellant’s petition for a writ of habeas
corpus fails to state a claim upon which relief could be granted justifying its
dismissal. Shoop, 4th Dist. Ross No. 17CA3619, 2018-Ohio-3647, ¶ 11.
{¶18} Finally, we have recognized that a claim of ineffective assistance of
counsel is not cognizable in habeas corpus. See Shuster v. Jenkins, 4th Dist.
Ross No. 2016-Ohio-4676, ¶ 11, citing Bozsik v. Hudson, 110 Ohio St.3d 245,
2006–Ohio–4356, 852 N.E.2d 1200, ¶ 7.
CONCLUSION
{¶19} Because the trial court had jurisdiction to entertain Appellant’s case,
Appellant had a remedy in the ordinary course of the law by way of an appeal to
address the issues that he raises here, and because he is not entitled to
immediate release from prison, we find that there is no set of facts that entitled
Appellant to the extraordinary relief of a writ of habeas corpus. Therefore, we
affirm the trial court’s judgment that dismissed Appellant’s petition.
JUDGMENT AFFIRMED.
Ross App. No. 20CA3705 11
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed
to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Ross County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Smith, P.J. and Abele, J.: 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.
Starkey v. Shoop
Combined Opinion