In re Frederick , 2017 Ohio 8122 ( 2017 )

[Cite as In re Frederick, 2017-Ohio-8122.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
In re Thomas Frederick Court of Appeals No. S-17-037
DECISION AND JUDGMENT
Decided: October 4, 2017
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Christopher P. Fiegl, for petitioner.
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PIETRYKOWSKI, J.
{¶ 1} This matter is before the court on the petition of Thomas Frederick for a writ
of habeas corpus. For the reasons that follow, we find that the petition fails to satisfy the
requirements of R.C. 2725.04, and is therefore fatally defective and must be denied.
{¶ 2} In his petition, Frederick, through counsel, states that he is imprisoned based
upon a felony indictment in case No. 17-CR-282. However, on September 20, 2017, the
trial court found Frederick to be incompetent to stand trial and not subject to being
restored to competency within a one-year period of time. Thus, the trial court dismissed
the indictment, and ordered that “jurisdiction over [Frederick] is transferred to the
Sandusky County Court of Common Pleas, Probate Division for further proceeding
pursuant to Ohio Revised Code 5122 or 5123.” However, Frederick states that no civil
commitment proceedings have been initiated against him in the probate court. Therefore,
Frederick argues that he is wrongfully being held in custody, and demands that a writ of
habeas corpus issue immediately against his illegal imprisonment by the Sandusky
County Sheriff and the state of Ohio.
{¶ 3} R.C. 2725.04 provides the requirements for an application for a writ of
habeas corpus:
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:
(A) That the person in whose behalf the application is made is
imprisoned, or restrained of his liberty;
(B) The officer, or name of the person by whom the prisoner is so
confined or restrained; or, if both are unknown or uncertain, such officer or
person may be described by an assumed appellation and the person who is
served with the writ is deemed the person intended;
2.
(C) The place where the prisoner is so imprisoned or restrained, if
known;
(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.
{¶ 4} Here, we primarily note that the application is not “verified.” “‘Verification’
means a ‘formal declaration made in the presence of an authorized officer, such as a
notary public, by which one swears to the truth of the statements in the document.’”
(Emphasis added.) Chari v. Vore, 91 Ohio St.3d 323, 327, 744 N.E.2d 763 (2001),
quoting Garner, Black’s Law Dictionary, 1556 (7 Ed.1999). Where an application is not
verified, it must be dismissed. Id. at 328 (application should have been dismissed
because neither the petitioner nor his attorney expressly swore to the truth of the facts
contained therein).
{¶ 5} In addition to the lack of verification, we further note that the application
does not expressly name the person by whom Frederick is confined, and upon whom the
writ should be served, although it does intimate that the person is the Sandusky County
Sheriff. R.C. 2725.04(B). Similarly, the application does not state where the petitioner is
imprisoned. R.C. 2725.04(C).
3.
{¶ 6} Accordingly, upon due consideration, Frederick’s petition for a writ of
habeas corpus is hereby denied without prejudice at petitioner’s costs. Frederick may
refile his petition to cure the foregoing deficiencies.
{¶ 7} To the Clerk: Manner of Service.
{¶ 8} Serve upon all parties in a manner prescribed by Civ.R. 5(B) notice of the
judgment and its date of entry upon the journal.
Writ denied.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
4.