In re Sinclair v. Tibbals , 2012 Ohio 1204 ( 2012 )

[Cite as In re Sinclair v. Tibbals, 2012-Ohio-1204.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97587
IN RE: BRUCE SINCLAIR
PETITIONER
vs.
WARDEN TERRY TIBBALS
RESPONDENT
JUDGMENT:
PETITION DISMISSED
Writ of Habeas Corpus
Motion No. 450624
Order No. 452733
RELEASE DATE: March 19, 2012
FOR PETITIONER
Bruce Sinclair, pro se
5264 Bellview Ave.
Maple Heights, OH 44137
ATTORNEYS FOR RESPONDENT
Mike DeWine
Ohio Attorney General
M. Scott Criss
Assistant Attorney General
Corrections Litigation Section
150 E. Gay Street, 16th Floor
Columbus, OH 43215
LARRY A. JONES, SR.:
{¶1} On November 22, 2011, the petitioner, Bruce Sinclair, commenced this
habeas corpus action against Warden Terry Tibbals to compel his immediate release from
postrelease control because the trial court improperly imposed postrelease control in the
underlying case, State v. Sinclair, Cuyahoga C.P. No. CR-417286. On December 22,
2011, the respondent moved to dismiss. Sinclair never filed a reply. For the following
reasons, this court grants the motion to dismiss.
{¶2} In the underlying case in June 2002, Sinclair was found guilty of drug
trafficking and drug possession with major drug offender specifications and possession of
criminal tools. The trial court sentenced him to a total of ten years in prison The trial
court also ordered the following in the sentencing entry: “Post release control is part of
this prison sentence for the maximum period allowed for the above felony (s) under R.C.
2967.28.” Additionally, the trial court did not inform Sinclair of postrelease control
during the sentencing hearing.
{¶3} Sinclair finished serving his prison sentence on November 28, 2011, and is
now on postrelease control. He argues that because the trial court did not impose
postrelease control properly, that portion of his sentence is void, and habeas corpus will
lie for his immediate release from postrelease control.
{¶4} Patterson v. Ohio Adult Parole Auth., 120 Ohio St.3d 311, 2008-Ohio-6147,
898 N.E.2d 950, controls. In that case, the trial court convicted Patterson of sexual
battery and unlawful sexual conduct with a minor, and sentenced him to five years in
prison. The sentence also included “up to 5 years of post release control.” Id. at ¶ 2.
When he was released from prison, the Ohio Adult Parole Authority placed Patterson on
five years of postrelease control. Shortly after his release, Patterson filed a petition for
habeas corpus in the court of appeals to compel the termination of his postrelease control,
because the trial court had failed to notify him that he might be subject to postrelease
control. The court of appeals dismissed the petition. Patterson v. Ohio Adult Parole
Auth., 5th Dist. No. 08-CA-33, 2008-Ohio-2620.
{¶5} On appeal, the supreme court ruled that Patterson is not entitled to the writ of
habeas corpus, because the writ is not available when there is an adequate remedy at law.
He “had an adequate remedy by way of direct appeal from his sentence to raise his claim
that he did not receive proper notification about his postrelease control at his sentencing
hearing.” Id. at ¶ 8. The court concluded that claims concerning improper notification
of postrelease control cannot “be raised by extraordinary writ when the sentencing entry
includes postrelease control, however inartfully it might be phrased.” Id.
{¶6} Sinclair’s claim is indistinguishable from Patterson. Both claimed that the
trial court did not notify them of postrelease control at their sentencing hearing, yet their
sentencing entries imposed postrelease control, but not with the now standard language.
The Supreme Court of Ohio ruled that habeas corpus will not lie in such cases to
terminate postrelease control.
{¶7} Accordingly, this court dismisses the petition for a writ of habeas corpus.
This court directs the Clerk of the Eighth District Court of Appeals to serve upon
the parties notice of this judgment and its date of entry upon the journal. Civ.R. 58(B).
Petitioner to pay costs.
LARRY A. JONES, SR., JUDGE
PATRICIA A. BLACKMON, A.J., and
COLLEEN CONWAY COONEY, J., CONCUR