State ex rel. Richard v. Seidner

[This opinion has been published in Ohio Official Reports at 

76 Ohio St.3d 149

.]




 THE STATE EX REL. RICHARD, APPELLANT, v. SEIDNER, WARDEN, APPELLEE.
             [Cite as State ex rel. Richard v. Seidner, 

1996-Ohio-54

.]
Civil procedure—Motion for relief from judgment—Court of appeals does not
        abuse its discretion in overruling a Civ.R. 60(B) motion without
        conducting an evidentiary hearing, when.
          (No. 96-383—Submitted June 4, 1996—Decided July 24, 1996.)
     APPEAL from the Court of Appeals for Lorain County, No. 95CA006193.
                                  __________________
        {¶ 1} In February 1987, the Cuyahoga County Grand Jury indicted
appellant, Donald L. Richard, Sr., on one count of aggravated murder, one count of
having a weapon while under disability, and various specifications. At the
commencement of the trial, the prosecutor amended the aggravated murder count
to charge the lesser included offense of murder. The trial court convicted Richard
of murder, having a weapon while under disability, and two firearms specifications,
and sentenced him accordingly. On appeal, the judgment was affirmed. State v.
Richard (Oct. 20, 1988), Cuyahoga App. No. 54228, unreported, 

1988 WL 112872

.
        {¶ 2} In July 1995, Richard filed a petition for a writ of habeas corpus in
the Court of Appeals for Lorain County. Richard claimed entitlement to habeas
corpus relief based on his allegations that the trial court acted without jurisdiction
in (1) amending the indictment charge of aggravated murder to murder, and (2)
conducting a bench trial on the charge of having a weapon while under disability
without strictly complying with the jury trial waiver requirements of R.C. 2945.05.
        {¶ 3} The court of appeals dismissed the petition. It held that the trial court
was authorized to amend the indictment because a defendant may be found guilty
of a lesser included offense even if the lesser offense is not included in the
indictment. White v. Maxwell (1963), 

174 Ohio St. 186

, 

22 O.O.2d 140

, 187 N.E.2d
                                  SUPREME COURT OF OHIO




878; R.C. 2945.74. The court of appeals further determined that since Richard’s
challenge of his murder conviction was meritless, he was not entitled to habeas
corpus relief on his remaining claim attacking his conviction for having a weapon
while under disability. See, e.g., Swiger v. Seidner (1996), 

74 Ohio St.3d 685, 687

,

660 N.E.2d 1214, 1216

 (“Where a petitioner is incarcerated for several crimes, the
fact that the sentencing court may have lacked jurisdiction to sentence him on one
of the crimes does not warrant his release in habeas corpus.”).
         {¶ 4} Richard subsequently filed a motion for relief from judgment pursuant
to Civ.R. 60(B)(1) and (5), and also requested an evidentiary hearing on his motion.
Richard argued, inter alia, that the court of appeals erred in denying the writ
because he could not have been convicted of the lesser included offense of murder
absent a jury instruction on the lesser offense.1 The court of appeals overruled the
motion.
         {¶ 5} The cause is now before this court upon an appeal as of right.
                                  ____________________
         Donald L. Richard, Sr., pro se.
         Betty D. Montgomery, Attorney General, and Charles L. Wille, Assistant
Attorney General, for appellee.
                                ___________________
         Per Curiam.
         {¶ 6} Richard asserts in his sole proposition of law that the court of appeals
erred in overruling his Civ.R. 60(B) motion for relief from judgment without
conducting an evidentiary hearing, because a genuine material dispute appears in
the record.




1. Richard also contended in his Civ.R. 60(B) motion that if he had been permitted full discovery,
he would have amended his petition to include another claim. However, since Richard does not
claim any error by the court of appeals as to this Civ.R. 60(B) contention, we need not address it.




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                                  January Term, 1996




        {¶ 7} In an appeal from a Civ.R. 60(B) determination, a reviewing court
must determine whether the trial court abused its discretion. Rose Chevrolet, Inc.
v. Adams (1988), 

36 Ohio St.3d 17, 20

, 

520 N.E.2d 564, 566

. An abuse of
discretion connotes conduct which is unreasonable, arbitrary, or unconscionable.
State ex rel. Edwards v. Toledo City School Dist. Bd. of Edn. (1995), 

72 Ohio St.3d 106, 107

, 

647 N.E.2d 799

, 801.
        {¶ 8} In order to prevail on a Civ.R. 60(B) motion for relief from judgment,
the movant must establish that “(1) the party has a meritorious defense or claim to
present if relief is granted; (2) the party is entitled to relief under one of the grounds
stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a
reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3),
not more than one year after the judgment, order or proceeding was entered or
taken.” GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 

47 Ohio St.2d 146

, 

1 O.O.3d 86

, 

351 N.E.2d 113

, paragraph two of the syllabus. Civ.R. 60(B)
relief is improper if any one of the foregoing requirements is not satisfied. Strack
v. Pelton (1994), 

70 Ohio St.3d 172, 174

, 

637 N.E.2d 914, 915

.
        {¶ 9} In addition, if the Civ.R. 60(B) motion contains allegations of
operative facts which would warrant relief from judgment, the trial court should
grant a hearing to take evidence to verify those facts before it rules on the motion.
Coulson v. Coulson (1983), 

5 Ohio St.3d 12, 16

, 5 OBR 73, 77, 

448 N.E.2d 809, 812

. Conversely, an evidentiary hearing is not required where the motion and
attached evidentiary material do not contain allegations of operative facts which
would warrant relief under Civ.R. 60(B). S. Ohio Coal Co. v. Kidney (1995), 

100 Ohio App.3d 661, 667

, 

654 N.E.2d 1017, 1021

.
        {¶ 10} The court of appeals properly dismissed Richard’s petition for a writ
of habeas corpus, since, as to his murder conviction, he alleged that the sentencing
court lacked authority to amend the original indictment. Richard essentially
challenged the validity of his amended indictment, a claim which is not cognizable




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                             SUPREME COURT OF OHIO




in habeas corpus. Luna v. Russell (1994), 

70 Ohio St.3d 561, 562

, 

639 N.E.2d 1168, 1169

 (Habeas corpus is not available to challenge either the validity or the
sufficiency of an indictment.).
       {¶ 11} Richard contends on appeal that he is entitled to relief from the
dismissal of his habeas corpus petition because that dismissal was inconsistent with
the facts in his criminal trial, i.e., it ignored his claims that the jury was not
instructed on the lesser included offense of murder. Richard apparently asserts that
even assuming the propriety of the amended indictment or the ability of the jury to
return a guilty verdict on a lesser included offense not charged in the indictment,
he could not be convicted of the lesser included offense of murder without a jury
instruction on that offense. Richard’s assertion fails because any claim of an
improper instruction could have been raised in his direct appeal from his conviction
and sentence and consequently does not warrant habeas corpus relief. Flora v.
Rogers (1993), 

67 Ohio St.3d 441, 442

, 

619 N.E.2d 690

; see, also, Porter v. Ohio
Parole Bd. (Mar. 8, 1995), Lorain App. Nos. 94CA005878 and 94CA005899,
unreported, 

1995 WL 92147

.
       {¶ 12} Based on the foregoing, we find that Richard’s Civ.R. 60(B) motion
did not allege operative facts which would warrant relief from judgment. The court
of appeals did not abuse its discretion in overruling his Civ.R. 60(B) motion without
conducting an evidentiary hearing. We affirm the judgment of the court of appeals.
                                                                Judgment affirmed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
STRATTON, JJ., concur.
                              __________________




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