[Cite as State ex rel. Parker v. Black, 2021-Ohio-2739.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE EX REL. DONELL PARKER : JUDGES:
:
: Hon. Patricia A. Delaney, A.J.
Petitioner : Hon. W. Scott Gwin, J.
: Hon. William B. Hoffman, J.
-vs- :
: Case No. 2021 CA 0038
:
KENNETH BLACK, WARDEN :
:
:
Respondent : OPINION
CHARACTER OF PROCEEDING: Writ of Habeas Corpus
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: August 9, 2021
APPEARANCES:
For Petitioner: For Respondent:
Donell Parker, A330-319 Terri L. Fosnaught
Richland Correctional Institution Assistant Attorney General
1001 Olivesburg Road Criminal Justice Section
Mansfield, Ohio 44905 150 East Gay Street, 16th Floor
Columbus, Ohio 43215
Richland County, Case No. 2021 CA 0038 2
Delaney, J.
{¶1} On May 12, 2021, Petitioner, Donell Parker, filed a Petition for Writ of
Habeas Corpus. Mr. Parker challenges juvenile transfer proceedings that occurred in the
Cuyahoga County Juvenile Court. He asserts the juvenile transfer order was never filed
and docketed to institute proceedings in the Cuyahoga County Common Pleas Court and
the juvenile transfer order did not comply with former R.C. 2151.26 and Juv.R. 30. Mr.
Parker also claims certain indictments do not comply with Crim.R. 6(F). Therefore, he
concludes the Cuyahoga County Common Pleas Court lacked jurisdiction and he should
be immediately released from prison. The Ohio Attorney General, on behalf of
Respondent, Warden Kenneth Black, moved to dismiss Mr. Parker’s petition under Civ.R.
12(B)(6).
FACTS AND PROCEDURAL HISTORY
{¶2} On February 1, 1996, a juvenile court complaint charged Mr. Parker with
delinquency in connection with the 1987 shooting death of Robert Letson. On March 21,
1996, Mr. Parker, then 26 years old, appeared before the Cuyahoga County Juvenile
Court for proceedings related to the state’s motion to transfer the proceedings to the
general division. Mr. Parker waived the amenability hearing and mental and physical
examination and on April 4, 1996, the juvenile court found probable cause and granted
the state’s motion to transfer. [Memo. in Support of Petition, Exh. 1]
{¶3} On April 16, 1996, the Cuyahoga County Grand Jury indicted Mr. Parker on
one count of aggravated murder by prior calculation and design, one count of aggravated
murder in connection with aggravated robbery, both with felony murder and firearm
Richland County, Case No. 2021 CA 0038 3
specifications, and one count of aggravated robbery, with a firearm specification. The
matter eventually proceeded to a jury trial. The state dismissed the charge of aggravated
murder by prior calculation and design. The jury found Mr. Parker guilty on the remaining
two counts. The trial court sentenced Mr. Parker to a term of thirty years to life, for
aggravated murder, plus three years for the firearm specification, and a consecutive term
of ten to twenty-five years, for aggravated robbery, plus three years for the firearm
specification.
{¶4} The Eighth District Court of Appeals affirmed Mr. Parker’s convictions on
direct appeal. State v. Parker, 8th Dist. Cuyahoga No. 71474, 1998 WL 166170 (Apr. 9,
1998).
ANALYSIS
A. Civ.R. 12(B)(6) standard and habeas corpus elements
{¶5} Respondent, Kenneth Black asks us to dismiss Mr. Parker’s petition on the
theory of res judicata which he raises in his Motion to Dismiss under Civ.R. 12(B)(6). We
will address this argument under Civ.R. 12 even though res judicata is usually not a proper
basis for dismissal under this rule. See Jones v. Wainwright, 162 Ohio St.3d 491, 2020-
Ohio-4870, 165 N.E.3d 1253, ¶ 5. The Supreme Court recently explained in Jones that it
would address a res judicata argument under Civ.R. 12(B)(6) because the defense did
not depend on documents outside the pleadings. Id.
{¶6} Similarly, here, Mr. Parker attached documents to his Memorandum in
Support of his Petition for Habeas Corpus that are pertinent to Respondent Black’s res
judicata argument. Under Civ.R. 10(C), these documents are considered a part of the
Richland County, Case No. 2021 CA 0038 4
habeas corpus pleadings for all purposes. Therefore, we will proceed to address this
matter as a Civ.R. 12(B)(6) dismissal motion.
{¶7} The purpose of a Civ.R. 12(B)(6) motion is to test the sufficiency of the
complaint. State ex rel. Boggs v. Springfield Loc. School Dist. Bd. of Edn., 72 Ohio St.3d
94, 95, 647 N.E.2d 788 (1995). In order for a case to be dismissed for failure to state a
claim, it must appear beyond doubt that, even assuming all factual allegations in the
complaint are true, the nonmoving party can prove no set of facts that would entitle that
party to the relief requested. Keith v. Bobby, 117 Ohio St.3d 470, 2008-Ohio-1443, 884
N.E.2d 1067, ¶ 10. If a petition does not satisfy the requirements for a properly filed
petition for writ of habeas corpus or does not present a facially viable claim, it may be
dismissed on motion by the respondent or sua sponte by the court. Flora v. State, 7th
Dist. Belmont No. 04 BE 51, 2005-Ohio-2383, ¶ 5.
{¶8} “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.” State ex rel. Whitt v. Harris, 157 Ohio St.3d 384, 2019-Ohio-4113,
137 N.E.3d 71, ¶ 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. Habeas corpus is not available when an
adequate remedy at law exists. Billiter v. Banks, 135 Ohio St.3d 426, 2013-Ohio-1719,
988 N.E.2d 556, ¶ 8.
B. Petitioner’s arguments in support of habeas relief
{¶9} First, Mr. Parker asserts the Cuyahoga County Common Pleas Court,
General Division, never acquired subject matter jurisdiction from the juvenile court
Richland County, Case No. 2021 CA 0038 5
because the juvenile transfer order was never filed and docketed to institute proceedings
in the general division. Attached to Mr. Parker’s Memorandum in Support, as Exhibit 2, is
a copy of the bindover order that indicates it was filed in the Cuyahoga County Common
Pleas Court, Juvenile Division, on April 8, 1996. This order states, in part:
The court, upon due consideration, grants the motion to transfer
jurisdiction of the child’s case to the general trial division of Cuyahoga
County Common Pleas Court for criminal prosecution of the case. It is,
therefore, ordered, adjudged, and decreed that pursuant to Ohio Juvenile
Rule 30 and Ohio Revised Code Section 2151.26, the matter herein is
transfered (sic) to the general trial division of the Cuyahoga County
Common Pleas Court for further proceedings pursuant to law.
{¶10} Mr. Parker claims the docket for the general division does not contain the
bindover order. He is correct because the bindover order was filed in the juvenile division,
not the general division. The bindover order indicates such in its caption. Mr. Parker also
maintains his case was instituted and docketed at his arraignment on April 19, 1996,
seventeen days after the juvenile case was allegedly transferred. Again, based on the
bindover order, filed on April 8, 1996, in the juvenile division, his case was instituted in
the general division before his first appearance on April 19, 1996. Because the bindover
order was properly filed and docketed the general division acquired jurisdiction from the
juvenile division and therefore, had jurisdiction to address the charges against Mr. Parker.
{¶11} Second, Mr. Parker contends the bindover order did not comply with former
R.C. 2151.26 and Juv.R. 30. He cites State v. Newton, 6th Dist. Fulton No. C.A. No. F-
82-17, 1983 WL 6836 (June 10, 1983), for the proposition that a juvenile court must state
Richland County, Case No. 2021 CA 0038 6
with reasonable specificity the factual basis underlying its order to transfer a juvenile to
the common pleas court for prosecution as an adult. Id. at *4.
{¶12} The statute and juvenile rule at issue require the juvenile court to consider
certain factors in making a bindover determination. Mr. Parker asserts the juvenile court
failed to comply with the statute and rule for the following reasons: (1) a hearing never
occurred on April 2, 1996; (2) the March 21, 1996 hearing transcript contains no mention
of waiver of physical and mental examination and amenability; (3) the March 21, 1996
hearing contains no appointment of counsel; and (4) he did not receive appointed counsel
until April 19, 1996, following his transfer to the general division.
{¶13} The exhibits attached to Mr. Parker’s Memorandum in Support do not bear
out his arguments. For example, Exhibit 2, the bindover order specifically indicates the
matter was before the juvenile court for a hearing on April 2, 1996. The lack of a transcript
does not prove that a hearing did not occur. We also note the bindover order states:
“Subject, through counsel, waives amendability (sic) phase of this hearing and a mental
and physical examination of said subject made by a duly qualified person(s).” Thus, Mr.
Parker not only appears to have had counsel at the bindover hearing, but he also waived,
through counsel, physical and mental examinations and the amenability phase of the
hearing.
{¶14} Third, Mr. Parker contends Crim.R. 6(F) provides a strict procedure for filing
and returning an indictment and Counts Two and Three were never “returned.” The rule
requires the indictment be returned by the foreperson or deputy foreperson “to a judge of
the court of common pleas and filed with the clerk who shall endorse thereon the date of
filing and enter each case upon the appearance and trial dockets.”
Richland County, Case No. 2021 CA 0038 7
{¶15} Exhibit 6, attached to Mr. Parker’s Memorandum in Support, contains three
True Bill Indictments filed with the Clerk of Courts on April 16, 1996. The indictments were
Count One for aggravated murder, R.C. 2903.01; Count Two for aggravated murder, R.C.
2903.01; and Count Three for aggravated robbery, R.C. 2911.01. A time stamp does not
appear on Counts Two and Three; however, it appears the indictments were filed as one
document, with Count One being the first page containing a time stamp from the Clerk of
Courts. Further, the printout of the Common Pleas Court’s docket, attached as Exhibit 3
to Mr. Parker’s Memorandum in Support, indicates the three pending charges on page 1.
{¶16} Our review of the exhibits submitted by Mr. Parker establishes his
arguments lack merit and therefore, he is not entitled to habeas relief. Further, all of the
arguments raised by Mr. Parker in his Petition for Habeas Corpus concern arguments he
could have pursued in his direct appeal. As long as a petitioner had adequate legal
remedies for the issues of which he complains by either direct appeal or post-conviction
relief, the issues may not be addressed in habeas corpus. Cornell v. Schotten, 69 Ohio
St.3d 466, 467, 633 N.E.2d 1111 (1994). Rather, res judicata applies barring a convicted
defendant from litigating, in a collateral proceeding, any claim that either was raised or
could have been raised at his trial or in his direct appeal. State v. Perry, 10 Ohio St.2d
175, 180, 226 N.E.2d 104 (1967); State v. Szefcyk, 77 Ohio St.3d 93, 96, 1996-Ohio-337,
671 N.E.2d 233.
{¶17} The claims Mr. Parker raises here are claims that could have been
addressed in his direct appeal. See Moore v. Wainwright, 160 Ohio St.3d 103, 2020-Ohio-
846, 154 N.E.3d 22, ¶ 7 (Claims challenging the validity of the bindover proceedings could
be raised on direct review.); State ex rel. Arroyo v. Sloan, 142 Ohio St.3d 541, 2015-Ohio-
Richland County, Case No. 2021 CA 0038 8
2081, 33 N.E.3d 56, ¶ 5, quoting McGee v. Sheldon, 132 Ohio St.3d 89, 2012-Ohio-2217,
969 N.E.2d 262, ¶ 1 (“Habeas corpus is not available to challenge the validity of a
charging instrument.”).
CONCLUSION
For the foregoing reasons, we grant Respondent Black’s Motion to Dismiss.
MOTION GRANTED.
CAUSE DISMISSED.
COSTS TO PETITIONER.
IT IS SO ORDERED.
By: Delaney, J.,
Gwin, J. and
Hoffman, J., concur.
State ex rel. Parker v. Black
Combined Opinion