[Cite as Rouse v. Davis, 2024-Ohio-915.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
RONALD ROUSE, JR., :
:
Petitioner-Appellant, : Case No. 22CA4008
:
v. :
:
CYNTHIA DAVIS, WARDEN, : DECISION AND JUDGMENT
1
Southern Ohio Correctional Facility, : ENTRY
:
Respondent-Appellee. : RELEASED 3/07/2024
_____________________________________________________________
APPEARANCES:
Ronald Rouse, Jr., Lucasville, Ohio, Petitioner-Appellant Pro Se.
Ohio Attorney General Dave Yost, and Katherine E. Mullen, Senior
Assistant Attorney General, Columbus, Ohio, for Respondent-Appellee.
_____________________________________________________________
Smith, P.J.:
{¶1} This is an appeal from a Scioto County Court of Common Pleas
judgment entry that dismissed Petitioner-Appellant Ronald Rouse, Jr.’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.
1
In Rouse’s Habeas Petition, he named Ronald Erdos as Warden of the Southern Ohio Correctional
Facility. The Scioto County Docket Sheet for Case No. 22CIH64, the underlying proceeding, denotes that
on May 2, 2023, Ronald Erdos was dismissed as defendant and Cynthia Davis has been substituted as the
Warden of the Southern Ohio Correctional Facility. Respondent-Appellee’s brief notes that pursuant to
Civ.R. 25(D)(1), “a public officer’s successor is automatically substituted as a party” when the named
public officer no longer holds office.
Scioto No. 22CA4008 2
BACKGROUND
{¶2} Rouse, who has felony convictions from Muskingum and Ross
Counties in Ohio, is currently imprisoned at the Southern Ohio Correctional
Facility (SOCF) in Scioto County. He is currently in the custody of Cynthia
Davis, the Warden of SOCF. Rouse filed a Writ of Habeas Petition in the
Scioto County Court of Common Pleas on April 11, 2022. We set forth the
following chronology leading to the filing of Rouse’s petition.
{¶3} In 2007, Rouse was convicted in the Muskingum County Court
of Common Pleas for one count of Aggravated Burglary, in violation of R.C.
2911.11(A)(1), a felony of the first degree; one count of Violation of a
Protection Order, in violation of R.C. 2919.27(A)(1), a felony of the third
degree; and one count of Domestic Violence, in violation of R.C.
2919.25(A), a misdemeanor of the first degree. See State v. Rouse, 5th Dist.
Muskingum No CT2007-0036, 2008-Ohio-2975, at ¶ 1, “Rouse I.” On May
20, 2007, the trial court sentenced Rouse to a stated prison term of ten (10)
years on Count One, and to a stated prison term of five (5) years on Count
Two, said sentences to be served consecutive to one another for an aggregate
prison sentence of fifteen (15) years. Id. at ¶6. In addition, Rouse received
a sentence of six (6) months on Count Three, to be served concurrent to the
other charges. Id. The Fifth District affirmed his convictions in Rouse I.
Scioto No. 22CA4008 3
For clarity, we will reference this set of felony convictions from Muskingum
County, with an underlying case number of CR2007-0012, as “Case 1.”
{¶4} Rouse was also convicted upon a plea of guilty to one count of
Assault on a Peace Officer, Muskingum County Common Pleas Case
Number CR2007-0110. We will reference this conviction as “Case 2.” In
October of 2007, the trial court sentenced Rouse to six months, to be served
concurrently with his sentence in Case 1.
{¶5} While serving the above prison sentences in Ross County in
2011, Rouse was indicted by the Ross County Court of Common Pleas on
one count of Felonious Assault and one count of Possession of a Deadly
Weapon While Under Detention. Ross County Common Pleas Court
assigned this as Case Number CR2011-543 and we will reference it as “Case
3.” Rouse later entered guilty pleas to both counts. On January 26, 2012,
the trial court sentenced Rouse, stating as follows: “I’m going to impose
three years on count one and three years on count two. Those run concurrent
to each other. But the net three years runs consecutive to the sentence that
he’s currently serving.”
{¶6} Based upon the above facts, Rouse alleged in his petition that he
is unlawfully restrained because he has served his maximum sentence of 15
years imposed by the trial court in Muskingum County in Case 1, which
Scioto No. 22CA4008 4
expired in December 2021, and since that time, he has been held in custody
unlawfully. Rouse challenges the validity of the sentencing entry from Ross
County, which purports to impose an additional three years to be served
consecutively, for two reasons. First, he argues the language indicating that
his sentence is to run consecutive to “the sentence that he’s currently
serving,” is ambiguous in that it does not set forth a specific case number.
Second, Rouse alleges that the judgment entry of sentence erroneously sets
forth the name of the offense he pled to as “Possession of a Deadly Weapon
While Under Disability.” Rouse contends that Crim.R. 43 was violated in
that he was never in the presence of the trial court as required to enter his
plea. Due to these irregularities, Rouse concludes that upon the expiration
of his maximum 15 year sentence on December 26, 2021, he is no longer
lawfully in custody. Rouse supported his petition with the following
documents:
1. Exhibit A: Three Count Indictment, Muskingum
County, filed Jan. 11, 2007;
2. Exhibit B: Entry, Muskingum Case No CR2007-
0012, filed May 10, 2007;
3. Exhibit C: One Count Indictment, Muskingum
County, filed April 18, 2007;
4. Exhibit D: Entry, Muskingum Case No. CR2007-
0010, filed October 31, 2007;
Scioto No. 22CA4008 5
5. Exhibit E: Two Count Indictment, Ross No.
11CR543, filed October 7, 2011;
6. Exhibit F: Judgment Entry of Sentence, Ross No.
11CR543, filed January 26, 2012;
7. Exhibit G: Plea of Guilty, Ross No. 11CR543,
filed December 6, 2011;
8. Exhibit H: Case Docket Sheet, Ross No.
11CR543;
9. Exhibit I: Appears to be printout from Southern
Ohio Correctional Facility with sentencing
information, dated December 17, 2021;
10. Exhibit J: Appears to be offender information
from the Ohio Department of Corrections showing
expected release date 12/26/24;
11. Exhibit K: Notice of Commitment and
Calculation of Sentence, Ohio Department of
Rehabilitation and Correction, dated May 17,
2007, showing calculated release date of
12/29/2021;
12. Exhibit L: Transcript of Dispositional Hearing,
Ross No. 11CR543;
13. Exhibit M: Transcript of Plea Hearing, Ross No.
11CR543.
Rouse requested an evidentiary hearing or, in the alternative, an order for his
immediate discharge.
{¶7} On July 1, 2022, Rouse filed a Motion for Summary Judgment
in the Scioto County Common Pleas Court. On July 6, 2022, Respondent
Scioto No. 22CA4008 6
filed a Motion to Dismiss. Also on that date, the trial court filed a judgment
entry scheduling a non-oral hearing on July 29, 2022. On July 14, 2022,
Rouse filed Petitioner’s Reply to Respondent’s Motion to Dismiss.
{¶8} On October 20, 2022, Rouse filed a Motion to Compel Ruling.
On November 8, 2022, the trial court filed a Judgment Entry on Motion to
Dismiss, granting Respondent’s motion. The trial court reasoned that: (1)
Rouse had an adequate legal remedy via direct appeal, postconviction
petition, or even delayed appeal because the errors he claims are obvious on
the face of the entry; (2) res judicata is also applicable; and (3) Rouse did not
sustain his burden of proving that he was illegally detained.
{¶9} Rouse thereafter filed a timely appeal.
ASSIGNMENTS OF ERROR2
I. ABUSE OF DISCRETION. TRIAL COURT ERRED
WHEN AN INMATE’S MAXIMUM SENTENCE HAS
EXPIRED A WRIT OF HABEAS IS THE PROPER
REMEDY TO CHALLENGE THE ILLEGALITY OF
THE INMATE’S CONTINUED INCARCERATION.
II. ABUSE OF DISCRETION. TRIAL COURT ERRED
FOR AN AMBIGUITY WITH BASE COUNT (2)
BEING IMPOSED IN DEFENDANTS PRESENCE IN
ACCORDANCE TO CRIM.R. 43(A).
2
The assignments of error are set forth verbatim from Rouse’s brief.
Scioto No. 22CA4008 7
III. TRIAL COURT ABUSED IT DISCRETION BY
FAILING TO ANSWER SUMMARY JUDGMENT
MOTION.
IV. TRIAL COURT ABUSED ITS DISCRETION ON
PETITIONER’S REPLY TO RESPONDENT’S LATE
MOTION TO DISMISS.
V. TRIAL COURT ABUSED ITS DISCRETION FOR
FAILURE TO GRANT MOTION TO COMPEL TO
NON-ORAL HEARING IN HIS FAVOR.
A. LAW
1. Standard of Review
{¶10} Respondent filed a motion to dismiss Rouse’s petition
for failure to state a claim.3 “ ‘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.” ’ ” Starkey v. Shoop, 4th Dist. Ross No. 20CA3705,
2021-Ohio-564, at ¶ 9, quoting 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.
3
The record reveals the underlying motion was filed pursuant to Civ.R. 12(B)(3) but we perceive this to be
a scrivener’s error.
Scioto No. 22CA4008 8
{¶11} Appellate review of a dismissal for failure to state a
claim is de novo. See 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 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
{¶12} “ ‘Habeas corpus petitions are governed by R.C.
[Chapter] 2725.’ ” Starkey v. Shoop, supra, at ¶10, quoting 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
Scioto No. 22CA4008 9
and should dismiss the petition.” Id., citing Pegan v. Crawmer, 73 Ohio
St.3d 607, 609, 653 N.E.2d 659 (1995).
{¶13} “ ‘ “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.’ ” 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.
{¶ 14} “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.’ ”
Scioto No. 22CA4008 10
Starkey v. Shoop, at ¶ 12, quoting 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 at ¶ 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, it is well-settled that claims of sentencing
error are not jurisdictional. See Steele v. Jenkins, 4th Dist. Ross No.
18CA3630, 2018-Ohio-4103, at ¶ 10, (internal citations omitted), and State
ex rel. King v. Watson, Slip Opinion No. 2023-0323, 2023-Ohio-4189, - -
N.E.3d - -, at ¶ 18 (internal citations omitted).
B. ANALYSIS
{¶15} For ease of analysis, we consider Rouse’s first and
second assignments of error jointly.
1. First Assignment of Error.
{¶16} On appeal, Rouse again contends that the judgment
Scioto No. 22CA4008 11
entry of sentence in Case 3 contains an ambiguity because the entry is silent
as to whether the sentences in Case 3 had to be served consecutive or
concurrent with the sentences in his first and second cases. Again, Rouse
points to the language of the judgment entry in Case 3 which states: “The
court finds that the defendant has been convicted of the offenses of felonious
assault, O.R.C. 2903.11 and Possession of a Deadly Weapon While Under
[sic] that the offender serve a stated prison term of three (3) years in prison,
for each offense to be served concurrently to one another and consecutively
to the sentence defendant is presently serving.”
2. Second Assignment of Error.
{¶17} Rouse also contends that the judgment entry of
sentence in Case 3 contains an ambiguity as to the identity of the charge in
Count Two, “Possession of a Deadly Weapon While Under Detention.” The
entry reads that Rouse was pleading to “Possession of a Deadly Weapon
While Under Disability.” Rouse argues that he was not sentenced to the
latter charge in the presence of the trial court as required by Crim.R. 43.
{¶18} Respondent concedes the typographical error in the Ross
County sentencing entry wherein the correct code section is cited with the
wrong title. However, Respondent contends that the sentencing entry from
Ross County Case 3 is not ambiguous and argues that the lower court was
Scioto No. 22CA4008 12
not required to refer to specific prior case numbers when he ordered the new
sentence to be served consecutive to the sentence in an earlier case. We
have reviewed the documents attached to Rouse’s petition and on appeal.
Rouse was sentenced by a court of competent jurisdiction. We conclude, as
did the trial court, based on well-established law, that Rouse has asserted
only sentencing errors which are not jurisdictional and thus, habeas review is
not the proper vehicle to seek redress of error or irregularities in an
individual’s sentence or the sentencing proceedings. Rather, direct appeal or
postconviction review is the relief available. Furthermore, both arguments
asserted by Rouse would be barred by res judicata.
{¶19} Even if we were to entertain Rouse’s claim regarding the
alleged ambiguity of the Ross County judgment entry of sentence, we would
find it to be without merit. Respondent directs our attention to the Tenth
District’s decision in State ex rel. Crowley v. Ohio Department of
Rehabilitation and Correction, 10th Dist. Franklin No. 17AP-198, 2018-
Ohio- 2526.4 In Crowley, a mandamus action decided by a magistrate upon
independent review of the evidence and objections, the Tenth District
overruled the objections and adopted the magistrate’s decision which stated:
4
Respondent also cites our own decision in State v. Mitchell, 4th Dist. Meigs No. 13CA13, 2015-Ohio-
5042, but we decline to discuss it because the similar language utilized by the trial court in Mitchell was not
the basis of appellant’s challenge.
Scioto No. 22CA4008 13
“There is no requirement that the sentencing entries in Case Nos. 06-CR-102
and 06CR23350 that imposed definite sentences reference Case No. 92CR-
632, that imposed the indefinite sentence.” (Emphasis added.) Relator’s
request for writ of mandamus was denied.
{¶20} Similarly, were we to entertain Rouse’s argument regarding
the typographical error and the alleged Crim.R. 43(A) violation, we would
again find no merit. The Ross County indictment reflects that Count Two is
Possession of A Deadly Weapon While Under Detention, R.C. 2923.131.
The judgment entry of sentence reflects the charge of Possession of a Deadly
Weapon While Under Disability, but cites the code section as set forth in the
indictment. The Plea of Guilty Rouse signed lists the correct code section
and the correct charge. The trial court docket reflects the date of the filing
of the judgment entry of sentence, along with the incorrect charge. Rouse’s
Exhibit I, a printout from ODRC, lists his incarceration for Possession Of A
Deadly Weapon While Under Detention, R.C. 2923.131.
{¶21} Rouse also attached transcripts of his plea hearing in Ross
County, dated November 23, 2011. At the hearing, the trial court references
the weapons charge correctly and then engages with Rouse in the typical
Crim.R. 11 colloquy regarding the nature of his charges as follows:
The Court: Count two it says on the same date, in
Ross County, that you were under detention at a
Scioto No. 22CA4008 14
correctional facility or detention facility, and that you
knowingly possessed a deadly weapon, specifically a
homemade shank and that you were under detention for
aggravated burglary, a first degree felony and you were
sentenced out of the Court of Common Pleas of
Muskingum County, Ohio on May 10, 2007. Do you
understand that charge:
Defendant: Yes.
{¶22} In our view, Rouse was well aware of the charge to which he
pled and he has provided us with no authority supporting the conclusion that
this typographical error in the sentencing entry renders his conviction or
sentence void. See State v. Bradford, 2017-Ohio-3003, 91 N.E.3d 10, at ¶
22 (4th Dist.). See also State v. Cooper, 5th Dist. Stark No. 2022CA00091,
2023-Ohio-2897, at fn. 2, citing State ex rel. Bradford v. Dinkelacker, 146
Ohio St.3d 219, 2016-Ohio-2916, 54 N..E.3d 1216, in the context of a
mandamus action, (“We are reassured in our decision by the fact that * * *
the Supreme Court of Ohio has reviewed Appellant's Hamilton County
convictions in the course of a mandamus appeal, acknowledged the
discrepancy [in Revised Code sections] between the verdict form and the
sentencing entry, yet failed to sua sponte recognize that the error rendered
either the conviction or sentence void or contrary to law.”). Furthermore, in
Steele v. Jenkins, cited earlier in this opinion, we found that Steele’s
assertion that the trial court failed to comply with Crim.R. 43(A) constituted
Scioto No. 22CA4008 15
a sentencing error that should have been raised on appeal and not by habeas
corpus. Id. at ¶2.
{¶23} Based on the foregoing, the trial court correctly concluded that
Rouse was unable to establish that his present incarceration is illegal, that
Rouse had an adequate remedy at law in the form of a direct appeal, and that
he was not entitled to habeas corpus. The sentencing errors Rouse has
asserted are not jurisdictional and thus are not cognizable grounds for habeas
relief. Accordingly, we overrule Rouse’s first and second assignments of
error. Having overruled the first and second assignments of error, we find
the third, fourth, and fifth assignments of error are necessarily rendered
moot. The judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
Scioto No. 22CA4008 16
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and Appellant shall
pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Scioto 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.
Hess, J., & Wilkin, J.: Concur in Judgment and Opinion.
For the Court,
BY: _________________________
Jason P. Smith,
Presiding 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.