Childers v. Wingard - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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CHILDERS, APPELLANT, v. WINGARD, WARDEN, APPELLEE.
[Cite as Childers v. Wingard (1998), ___ Ohio St.3d ___.]
Habeas corpus to compel warden to release petitioner from prison -- Petition
properly dismissed by court of appeals, when.
(No. 98-1405 -- Submitted September 29, 1998 -- Decided October 28, 1998.)
APPEAL from the Court of Appeals for Madison County, No. CA98-03-016.

In 1994, appellant, Thomas J. Childers, was convicted of six counts of
receiving stolen property and one count of having weapons while under disability,
and of accompanying firearm specifications. Before sentencing, Childers entered
into an agreement with the state in which he agreed to assist law enforcement
officials and to waive his right to appeal in return for the state's recommendation
that he receive a certain sentence. The common pleas court sentenced him to an
aggregate indefinite prison term of eight to twenty years to be served
consecutively to an aggregate three-year term of actual incarceration for the
firearm specifications. The court ordered that some of the indefinite terms for the
receiving stolen property convictions would be served consecutively to each other.
Despite the agreement, Childers appealed his convictions, claiming, among other
things, that the trial court should have merged his receiving stolen property
convictions when it sentenced him. The court of appeals affirmed the judgment of
the trial court.

In 1998, Childers filed a petition in the Court of Appeals for Madison
County for a writ of habeas corpus to compel appellee, Warden Curtis Wingard, to
release him from prison. Childers contended that his sentence was illegal because
the state had misled and deceived him into signing the presentence agreement
when the state knew that his convictions should have been merged. The court of
appeals granted Wingard's Civ.R. 12(B)(6) motion and dismissed the petition.

__________________

Thomas J. Childers, pro se.
__________________

Per Curiam. Childers asserts that the court of appeals erred in dismissing
his petition. For the following reasons, however, the court of appeals properly
dismissed the habeas corpus petition.

First, Childers has or had adequate remedies at law by appeal or
postconviction relief to review the alleged sentencing error. State ex rel. Massie v.
Rogers (1997), 77 Ohio St.3d 449, 450, 674 N.E.2d 1383, 1383. Sentencing errors
are not jurisdictional and are not cognizable in habeas corpus. Majoros v. Collins
(1992), 64 Ohio St.3d 442, 443, 596 N.E.2d 1038, 1039.

Second, Childers has already raised an analogous claim of sentencing error
in his direct appeal. Where a plain and adequate remedy at law has been
unsuccessfully invoked, extraordinary relief is not available to relitigate the same
issue. See State ex rel. Sampson v. Parrott (1998), 82 Ohio St.3d 92, 93, 694
N.E.2d 463.
Finally,
res judicata barred Childers from filing successive habeas corpus
petitions. State ex rel. Brantley v. Ghee (1997), 80 Ohio St.3d 287, 288, 685
N.E.2d 1243, 1244. Childers's previous habeas corpus petition had been
dismissed by the court of appeals. See VanBuskirk v. Wingard (1997), 80 Ohio
St.3d 659, 687 N.E.2d 776, where we affirmed the dismissal of Childers's petition.

Based on the foregoing, we affirm the judgment of the court of appeals.
Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.

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