[Cite as Humphrey v. Eppinger, 2020-Ohio-6915.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
LAVELLE HUMPHREY, : PER CURIAM OPINION
: CASE NO. 2020-T-0019
- vs -
WARDEN LASHANN EPPINGER,
Original Action for Writ of Habeas Corpus.
Judgment: Petition dismissed.
Lavelle Humphrey, pro se, #A624-409, Trumbull Correctional Institution, 5701 Burnett
Road, P.O. Box 901, Leavittsburg, Ohio 44430 (Petitioner).
Dave Yost, Ohio Attorney General, State Office Tower, 30 East Broad Street, 16th Floor,
Columbus, Ohio 43215, and Daniel Jacob Benoit, Assistant Attorney General, 150 East
Gay Street, 16th Floor, Columbus, Ohio 43215 (For Respondent).
¶1 Petitioner, Lavelle Humphrey (“Mr. Humphrey”), petitions pro se this court
to issue a writ of habeas corpus to respondent, Lashann Eppinger, Warden of Trumbull
Correctional Institution (“Mr. Eppinger”). Mr. Humphrey contends that his 1984 conviction
in the Cuyahoga County Court of Common Pleas is void for the reason that the trial court
lacked subject matter jurisdiction to try and convict him. He asserts that: the state never
brought a complaint for delinquency for the commission of any offense in juvenile court,
and the state failed to provide him with a proper bindover hearing.
¶2 Mr. Eppinger, in turn, filed a motion for summary judgment, arguing that a
proper complaint was filed in juvenile court, and further, that Mr. Humphrey was subjected
to bindover proceedings. Thus, Mr. Eppinger asserts he is entitled to judgment as a
matter of law and Mr. Humphrey’s petition should be dismissed. Mr. Eppinger further
contends that Mr. Humphrey’s claims of error in his bindover proceedings are not entitled
to habeas corpus relief since he had an alternative remedy at law via the direct appeal of
his conviction and sentence and because his maximum sentence is not expired. A
certified copy of the Cuyahoga County Juvenile Court record for Mr. Humphrey’s 1984
conviction was attached to Mr. Eppinger’s motion for summary judgment.
¶3 A review of Mr. Humphrey’s case history reveals Mr. Eppinger’s assertions
are correct. The records of the Cuyahoga County Common Pleas Court, Juvenile
Division, case at issue reflect a properly filed complaint, which was read to Mr. Humphrey
in open court and further reveal that Mr. Humphrey was subjected to proper bindover
procedures before he was bound over to the Cuyahoga County Common Pleas Court,
General Division. Thus, finding Mr. Eppinger’s motion for summary judgment well-taken
and that he is entitled to judgment as a matter of law, we grant the motion and dismiss
Mr. Humphrey’s petition.
¶4 In 1984, in Cuyahoga County Common Pleas case no. CR-84-190524-ZA,
Mr. Humphrey pleaded guilty to counts of aggravated burglary and aggravated robbery.
He was sentenced to concurrent prison terms of four to 25 years as to aggravated
burglary and five years as to aggravated robbery. Mr. Humphrey did not appeal his
convictions. It is this first case that is the subject of the instant petition.
¶5 In a second Cuyahoga County Court of Common Pleas case, case no. 88-
229774-ZA, Mr. Humphrey also pleaded guilty to kidnapping with specifications,
aggravated robbery with specifications, and grand theft motor vehicles with a
specification. He was sentenced to serve concurrent prison terms of 10 to 25 years on
the counts of kidnapping and aggravated robbery, concurrent to an 18-month prison term
on the count of grand theft.
Law and Analysis
¶6 A writ of habeas corpus is a civil action under Ohio law. Fuqua v. Williams,
100 Ohio St. 3d 211
, 2003-Ohio-5533, ¶7. Therefore, “[t]he Civil Rules may apply to
habeas cases where not ‘clearly inapplicable’ by their nature.” Gaskins v. Shiplevy,
74 Ohio St. 3d 149
, 150 (1995) (“Gaskins I”), quoting Pegan v. Crawmer,
73 Ohio St. 3d 607
¶7 On summary judgment, we are required to determine whether any genuine
issues of material fact exist and whether [Respondent] is entitled to judgment as a matter
of law. Henry v. Kohl’s Dept. Stores, Inc., 11th Dist. Lake No. 2018-L-113, 2019-Ohio-
¶8 “Since summary judgment denies the party his or her ‘day in court’ it is not
to be viewed lightly as docket control or as a ‘little trial’. The jurisprudence of summary
judgment standards has placed burdens on both the moving and the nonmoving party.
In Dresher v. Burt [
75 Ohio St. 3d 280
(1996)], the Supreme Court of Ohio held that the
moving party seeking summary judgment bears the initial burden of informing the trial
court of the basis for the motion and identifying those portions of the record before the
trial court that demonstrate the absence of a genuine issue of fact on a material element
of the nonmoving party's claim. The evidence must be in the record or the motion cannot
succeed. The moving party cannot discharge its initial burden under Civ.R. 56 simply by
making a conclusory assertion that the nonmoving party has no evidence to prove its
case but must be able to specifically point to some evidence of the type listed in Civ.R.
56(C) that affirmatively demonstrates that the nonmoving party has no evidence to
support the nonmoving party's claims.”
Id. at ¶17,
quoting Welch v. Ziccarelli, 11th Dist.
Lake No. 2006-L-229, 2007-Ohio-4374, ¶40.
¶9 “If the moving party fails to satisfy its initial burden, the motion for summary
judgment must be denied. If the moving party has satisfied its initial burden, the
nonmoving party has a reciprocal burden outlined in the last sentence of Civ.R. 56(E) to
set forth specific facts showing there is a genuine issue for trial. If the nonmoving party
fails to do so, summary judgment, if appropriate shall be entered against the nonmoving
party based on the principles that have been firmly established in Ohio for quite some
time in Mitseff v. Wheeler (1988),
38 Ohio St. 3d 112
Id. at ¶18,
quoting Welch at ¶40.
¶10 A writ of habeas corpus is necessary in certain exceptional circumstances
where there is an unlawful restraint of an individual's liberty. Johnson v. Timmerman–
93 Ohio St. 3d 614
, 616 (2001). Habeas corpus relief, like other extraordinary
writ actions, is generally not available to a petitioner where there is or was an adequate
remedy at law. State ex rel. Fryerson v. Tate,
84 Ohio St. 3d 481
, 485 (1999) (“Fryerson
II”), citing Gaskins v. Shiplevy,
76 Ohio St. 3d 380
, 383 (1996) (“Gaskins II ”). The
Supreme Court has, however, “carved out a limited exception to this general rule, to apply
when the habeas petitioner is challenging the jurisdiction of the court that sentenced him.”
Id. “Accordingly, if a
prisoner fails to present a jurisdictional error committed by the trial
court in the underlying action, his habeas corpus claim will be subject to dismissal for
failure to raise a viable claim for relief.” Snitzky v. Wilson, 11th Dist. Trumbull No. 2003-
T-0095, 2004-Ohio-7229, ¶12, citing Novak v. Gansheimer, 11th Dist. Ashtabula No.
2003-A-0023, 2003-Ohio-5428, ¶5, citing R.C. 2725.05.
¶11 When alleging a trial court lacked subject matter jurisdiction, the habeas
corpus petitioner must establish the lack of jurisdiction was “patent and unambiguous.”
Ross v. Saros,
99 Ohio St. 3d 412
, 2003-Ohio-4128, ¶14, citing Agee v. Russell, 92 Ohio
St.3d 540, 544 (2001).
¶12 This court has previously explained the concept of a “patent and
unambiguous” lack of jurisdiction:
¶13 “[I]f there [is] no set of facts under which a trial court * * * could have
jurisdiction over a particular case, the alleged jurisdictional defect will always be
considered patent and unambiguous. On the other hand, if the court * * * generally has
subject matter jurisdiction over the type of case in question and [its] authority to hear that
specific action [depends] on the specific facts before [it], the jurisdictional defect is not
obvious and the [trial court] should be allowed to decide the jurisdictional issue.” Johnson
v. Sloan, 11th Dist. Ashtabula No. 2016-A-0009, 2016-Ohio-5375, ¶10, quoting State ex
rel. The Leatherworks Partnership v. Stuard, 11th Dist. Trumbull No. 2002-T-0017, 2002-
¶14 “These requirements have been applied to habeas corpus petitions that
allege unlawful restraint due to an improper bindover.”
Id. at ¶11;
see, e.g., Gaskins
I, 5 supra
; State ex rel. Harris v. Anderson,
76 Ohio St. 3d 193
re Baker v. Stewart,
116 Ohio App. 3d 580
(10th Dist.1996); and
habeas corpus may lie only when the challenged bindover procedure is void, such that
the trial court patently and unambiguously lacked jurisdiction.
Id., citing In re
7th Dist. Belmont No. 97-BA-38,
1997 WL 728564
, *3-4 (Oct. 24, 1997) (“Fryerson I”);
Stallings v. Mitchell, 11th Dist. Trumbull No. 97-T-0010,
1997 WL 665978
, *4 (Oct. 10,
1997), citing Gaskins
(“[t]he Supreme Court of Ohio has held that such a writ will
not lie when the bindover judgment shows that the juvenile court followed the correct
¶15 Here, the juvenile court issued its bindover judgments in 1984. At that time,
R.C. 2151.26 and Juv.R. 30 required the court to conduct an investigation prior to
bindover, including a mental and physical examination. Following the investigation, the
juvenile court was required to hold a hearing to determine whether the case should be
transferred to the general division for the juvenile to be tried as an adult. See former R.C.
2151.26(A)(1)(c). Johnson at ¶12.
¶16 Attached to Mr. Eppinger’s motion for summary judgment were certified
copies of the juvenile court records from Mr. Humphrey’s 1984 case, which included a
copy of the complaint charging Mr. Humphrey with aggravated robbery, and a journal
entry indicating that the complaint of delinquency was read in open court. The entry noted
that Mr. Humphrey, his mother, and his counsel waived a probable cause hearing
pursuant to Juv.R. 30. The court set the matter for psychological and psychiatric tests
and an amenability hearing pursuant to Juv.R. 30. Mr. Humphrey was also placed on
¶17 In April of 1984, a bindover hearing was held, in which the juvenile court
found that: Mr. Humphrey was 17 years of age at the time of the conduct charged; there
was probable cause to believe that he committed the acts alleged in the complaint; and
such acts if committed by an adult, constituted a felony. After a full investigation, including
a mental and physical examination, the court further found that Mr. Humphrey was not
amenable to care or rehabilitation in any facility designed for the care, supervision, and
rehabilitation of delinquent children, and that the safety of the community required him to
be placed under legal restraint for a period extending the age of majority. Thus, upon
due consideration, the court granted the state’s motion to transfer jurisdiction to the
General Division of the Cuyahoga County Common Pleas Court for criminal prosecution.
¶18 Thus, it is clear that there is no merit in Mr. Humphrey’s contentions. A
complaint of delinquency was filed against Mr. Humphrey in juvenile court. Furthermore,
the bindover judgments, on their faces, reflect that the requirements for a proper bindover
were met; therefore any alleged lack of jurisdiction was not “patent and unambiguous.”
Mr. Humphrey possessed an adequate remedy at law to raise these issues in a direct
appeal, which he did not do. Even if we presumed these allegations as true, Mr.
Humphrey can prove no set of facts that would entitle him to relief by means of a writ of
¶19 Since Mr. Humphrey raised no genuine issue of material fact to support his
claim that the challenged bindover procedure is void, such that the trial court patently and
unambiguously lacked jurisdiction, Mr. Eppinger’s motion for summary judgment is
granted, and Mr. Humphrey’s petition is dismissed.
TIMOTHY P. CANNON, P.J., CYNTHIA WESTCOTT RICE, J., MARY JANE TRAPP, J.,