Gaskins v. Shiplevy

[This opinion has been published in Ohio Official Reports at 

74 Ohio St.3d 149

.]




            GASKINS, APPELLANT, v. SHIPLEVY, WARDEN, APPELLEE.
                    [Cite as Gaskins v. Shiplevy, 

1995-Ohio-262

.]
Petition for writ of habeas corpus seeking release from Lima Correctional
        Institution—Writ allowed when petition states potentially good cause of
        action alleging that court of common pleas lacked jurisdiction over
        juvenile petitioner because of improper bindover procedure—Juvenile
        law—Without proper bindover procedure under R.C. 2151.26, juvenile
        court’s jurisdiction is exclusive and cannot be waived.
   (No. 95-879—Submitted September 12, 1995—Decided December 6, 1995.)
     APPEAL from the Court of Appeals for Allen County, No. CA95030015.
                                  __________________
        {¶ 1} On March 29, 1995, appellant, Keith A. Gaskins, filed a petition for a
writ of habeas corpus in the Court of Appeals for Allen County, alleging that he
was unlawfully restrained by appellee, Carol Shiplevy, Warden of the Lima
Correctional Institution, by reason of being placed twice in jeopardy in his 1983
conviction for burglary. He claimed he was fifteen at the time of conviction and
that jeopardy had attached in juvenile court before he was bound over for trial as
an adult. He attached a 1983 journal entry from the Court of Common Pleas of
Seneca County, showing that he had pled guilty to burglary and was sentenced to
an indeterminate term of two to fifteen years.
        {¶ 2} On April 12, 1995, appellant moved to amend the petition to add a
claim of improper bindover from the Seneca County Juvenile Court, which, he
alleged, prevented the Seneca County Common Pleas Court from acquiring
jurisdiction. On April 19, 1995, without ruling on petitioner’s motion to amend,
the court of appeals dismissed the petition under authority of Wenzel v. Enright
(1993), 

68 Ohio St. 3d 63

, 

623 N.E. 2d 69

, which held that double jeopardy claims
                             SUPREME COURT OF OHIO




do not state a cause of action in habeas corpus. Appellant appeals from this
judgment.
                              __________________
        Keith A. Gaskins, pro se.
                              __________________
        Per Curiam.
        {¶ 3} We reverse the judgment of the court of appeals and remand the cause.
        {¶ 4} Insofar as the court of appeals held that appellant’s double jeopardy
claim did not state a cause of action in habeas corpus, we agree. Wenzel v. 

Enright, supra.

 However, the court of appeals disregarded appellant’s motion to add the
improper bindover claim. Civ. R. 15 (A) states in part:
        “A party may amend his pleading once as a matter of course at any time
before a responsive pleading is served * * *.”
        {¶ 5} The Civil Rules may apply to habeas cases where not “clearly
inapplicable” by their nature. Pegan v. Crawmer (1995), 

73 Ohio St. 3d 607, 608

,

653 N.E. 2d 659, 660

. We do not find Civ. R. 15 (A) clearly inapplicable to habeas
cases. Therefore, we hold that the court of appeals should have allowed the motion
to amend and considered the bindover issue.
        {¶ 6} On appeal, appellant argues that improper bindover deprived the
common pleas court of jurisdiction. This issue was not considered by the court of
appeals and appears to have facial merit. Appellant states, among other things, that
in November 1983 he was unrepresented by counsel at a juvenile adjudication
hearing, which the court converted into a bindover hearing. Juv. R. 3 stated in
1983:
        “A child’s right to be represented by counsel at a hearing to determine
whether the juvenile court shall relinquish its jurisdiction for purposes of criminal
prosecution may not be waived.”




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                                  January Term, 1995




        {¶ 7} Appellant also claims that he was given no mental and physical
examination, as required by R.C. 2151.26. In the last half of 1983, R.C. 2151.26
stated in part (and still states in substance):
        “After a complaint has been filed alleging that a child is a delinquent child
by reason of having committed an act that would constitute a felony if committed
by an adult, the court at a hearing may transfer the case for criminal prosecution to
the appropriate court having jurisdiction of the offense, after making the following
determinations:
        “* * *
        “(3) After an investigation, including a mental and physical examination of
the child made by a public or private agency, or a person qualified to make the
examination, that there are reasonable grounds to believe that:
        “(a)     He is not amenable to care or rehabilitation or further care or
rehabilitation in any facility designed for the care, supervision, and rehabilitation
of delinquent children;
        “(b) The safety of the community may require that he be placed under legal
restraint, including, if necessary, for the period extending beyond his majority.”
(140 Ohio Laws, Part I, 585-586.)
        {¶ 8} In State v. Wilson (1995), 

73 Ohio St. 3d 40

, 

652 N.E. 2d 196

, we held
that, without a proper bindover procedure under R.C. 2151.26, a juvenile court’s
jurisdiction is exclusive and cannot be waived. 

Id.

 at paragraphs one and two of
the syllabus. Accordingly, we hold that appellant’s amended petition stated a
potentially good cause of action in habeas corpus, alleging, as it did, that the court
of common pleas lacked jurisdiction over appellant because of improper bindover.
Therefore, we reverse the judgment of the court of appeals and remand the cause
for the court of appeals to allow the writ, require appellee to make a return, and
determine whether the bindover was improper. See Hammond v. Dallman (1992),

63 Ohio St. 3d 666, 668

, 

590 N.E. 2d 744, 746, fn. 7

.




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       {¶ 9} We are aware that Wilson was not a habeas case and that we have
stated that habeas will not lie when there is an adequate remedy at law. State ex
rel. Pirman v. Money (1994), 

69 Ohio St. 3d 591, 593-594

, 

635 N.E. 2d 26, 29

.
Nevertheless, when a court’s judgment is void because it lacked jurisdiction,
habeas is still an appropriate remedy despite the availability of appeal. In re
Lockhart (1952), 

157 Ohio St. 192

, 195, 

47 O.O. 129

, 131, 

105 N.E. 2d 35

, 37,
and paragraph three of the syllabus.
                                                              Judgment reversed
                                                           and cause remanded.
       MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and
COOK, JJ., CONCUR.
                             __________________




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