COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72982 STATE OF OHIO : : ACCELERATED DOCKET Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION NEIL KLOSTERMEYER : : PER CURIAM Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION APRIL 9, 1998 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE CR-177990 JUDGMENT: APPEAL DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES CUYAHOGA COUNTY PROSECUTOR ARTHUR A. ELKINS (#0061094) Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: NEIL R. KLOSTERMEYER, pro se (#184-438) Mansfield Correctional Inst. P.O. Box 788 Mansfield, Ohio 44901 PER CURIAM: This is an appeal of a judgment from the Court of Common Pleas, Cuyahoga County, overruling defendant-appellant, Neil -2- Klostermeyer's ( appellant ), Request for Judgment on Motion on Termination of Imprisonment, a Declaratory Judgment. The limited but pertinent facts upon which this appeal rests are that appellant was convicted and sentenced in two separate cases which have been consolidated for the purpose of this appeal. In the first case, CR-177990, appellant was issued a two-count indictment on December 16, 1982. Count I of the indictment charged appellant with carrying a concealed weapon in violation of R.C. 2923.12. Count II charged appellant with having a weapon while under disability in violation of R.C. 2923.13, with a furthermore clause. On January 26, 1983, appellant entered into a plea agreement and pled guilty to Count I, carrying a concealed weapon, while Count II of the indictment was dismissed. Appellant was thereafter sentenced to an indefinite term of one (1) to ten (10) years imprisonment. On November 23, 1984, appellant was issued a two-count indictment in case, CR-194751. Count I of the indictment charged appellant with aggravated robbery in violation of R.C. 2911.01 with an aggravated felony specification. Count II of the indictment charged appellant with felonious assault in violation of R.C. 2903.11, also with an aggravated felony specification. On April 16, 1985, appellant again entered into a plea agreement and pled guilty to aggravated robbery with a violence specification. Count II of the indictment was dismissed. Appellant was thereafter sentenced to an indefinite sentence term -3- of eight (8) to fifteen (15) years of imprisonment. Appellant did not directly appeal from either of his convictions. However, in 1996, after the new felony sentencing guidelines were adopted, appellant, on July 8, 1996, filed a post- conviction relief petition seeking to vacate and modify his sentence. In his petition, appellant argued that failure to make the new sentencing scheme retroactive violated equal protection and substantive due process law. On September 6, 1996, the trial court denied appellant's petition for post-conviction relief and petition to vacate sentence. Subsequently, two separate findings of facts and conclusions of law were submitted by the trial court. On March 24, 1997, the trial court submitted its findings of fact and conclusions of law with regard to case, CR-194751, and on March 25, 1997, the trial court submitted its findings of fact and conclusions of law regarding case, CR-177990. On April 21, 1997, appellant appealed from both decisions. These decisions have been consolidated by this court for purposes of appellant's appeal, Case Nos. 72385 and 72386, and are still pending in this court. On April 11, 1997, appellant filed a request for judgment on motion on termination of imprisonment, a declaratory judgment, asking the trial court to retroactively apply the new sentencing guidelines and terminate his incarceration. On July 30, 1997, the trial court overruled appellant's motion on termination of imprisonment-declaratory judgment and stated: This court finds that this is not the proper forum to challenge the constitutionality of Senate Bill 2 Sentencing. This court also finds that Senate Bill 2 is -4- constitutional because the legislature intended that Senate Bill 2 would not be retroactive. This court further finds that defendant failed to meet his burden of establishing the unconstitutionality of Senate Bill 2 in his action for declaratory judgment. See Central Motors Corp. v. Peper [sic] Pike (1979), 63 Ohio App.2d 34. It is from this order which appellant currently appeals. For the following reasons, we find that the appeal in the present case should be dismissed. In the case sub judice, appellant challenges the constitutionality of the new criminal felony sentencing statutes which became effective on July 1, 1996. In particular, appellant claims Senate Bill 2 violates the 5th, 8th and 14th Amendments to the United States Constitution, and Article I of the Ohio Constitution. Appellant further asserts Senate Bill 2 should be retroactively applied. Thus, appellant concludes that because he has been denied equal protection and due process, the remaining period of his incarceration should be terminated immediately. Initially, we note that the proper means for bringing about a constitutional challenge regarding a criminal conviction is through a petition for postconviction relief. See R.C. 2953.21. In the present case, appellant, in compliance with R.C. 2953.21, did, in fact, file a petition for postconviction relief and petition to vacate sentence with the trial court. Following the denial of his postconviction petition, appellant properly filed an appeal with this court. Appellant's appeal is currently before this court, Case Nos. 72385 & 72386. Next, we note, and the Ohio Supreme Court has held that -5- habeas corpus is the appropriate action for persons claiming entitlement to immediate release from prison. See State ex rel. Lemmon v. Ohio Adult Parole Authority (1997), 78 Ohio St.3d 186, syllabusat three. Thus, we find appellant's use of a motion for declaratory judgment both to challenge the constitutionality of Senate Bill 2, as well as to seek immediate termination of his remaining prison sentence, was improper. Therefore, we decline to rule on appellant's assignments of error. Accordingly, appellant's appeal is not well taken and is dismissed. Appeal dismissed. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. It is ordered that a special mandate issue out of this court directing the Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DIANE KARPINSKI, PRESIDING JUDGE LEO M. SPELLACY, JUDGE -6- MICHAEL J. CORRIGAN, JUDGE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuantto App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .