State Ex Rel. Mays v. McFaul, Unpublished Decision (3-18-1999) ( 1999 )

OPINION Petitioner is the defendant in State v. Mays, Cuyahoga County Court of Common Pleas Case No. CR-329183. Petitioner pled guilty to drug abuse and the court of common pleas imposed a sentence of one year as well as a fine and suspension of petitioner's driver's license. Petitioner complains that the trial court erred by imposing sentence in accordance with Am.Sub.S.B. 2 because the offense occurred prior to the effective date of Am.Sub.S.B. 2.

Respondent has filed a motion to dismiss. Petitioner has not filed a response. Respondent observes that petitioner is incarcerated outside Cuyahoga County. It is well-established that a party may not maintain a petition for habeas corpus if the petition is filed in a county other that in which the petitioner is incarcerated. R.C. 2725.03. See, e.g., State ex rel. Elliott v.McFaul (Apr. 16, 1998). Cuyahoga App. No. 74020, unreported, at 3.

Likewise, respondent argues that appeal not habeas corpus is the proper remedy for purported errors in sentencing. We agree. See Smith v. Walker (1998), 83 Ohio St.3d 431, 700 N.E.2d 592, rehearing denied 84 Ohio St.3d 1429; Childers v. Wingard (1998),83 Ohio St.3d 427, 700 N.E.2d 588.

Accordingly, respondent's motion to dismiss — which is unopposed — is granted. Petitioner to pay costs.

Writ dismissed.

ANN DYKE, J., CONCURS.

JAMES M. PORTER, ADMINISTRATIVE JUDGE.