COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA GERALD E. FUERST, CLERK OF COURTS NO. 82623 STATE EX REL. HENRY IVEZZY, JR. : : : JOURNAL ENTRY Petitioner : and : OPINION v. : : GERALD T. MCFAUL, : CUYAHOGA COUNTY SHERIFF : : : Respondent : CHARACTER OF PROCEEDING: WRIT OF HABEAS CORPUS JUDGMENT Petition dismissed. DATE OF JOURNALIZATION: APRIL 3, 2003 APPEARANCES: For Petitioner: LARRY W. ZUKERMAN, ESQ. 2000 East Ninth Street Suite 700 Cleveland, Ohio 44115 For Respondent: WILLIAM D. MASON, ESQ. CUYAHOGA COUNTY PROSECUTOR L. CHRISTOPHER FREY, ESQ. Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 -2- KARPINSKI, J.: Henry Ivezzy, Jr., the petitioner, filed an original action on March 14, 2003, seeking the issuance of a writ of habeas corpus pursuant to R.C. 2725.01 et seq. Ivezzy is currently incarcerated in the Cuyahoga County jail as a result of two separate criminal proceedings: 1) arrest and indictment in Cuyahoga County Court of Common Pleas Case No. CR-435220 for the offenses of attempted rape, kidnapping, gross sexual imposition, and sexual battery; and 2) arrest for violation of the terms of the sentence of community control as imposed in CR-417633. Ivezzy argues that he has been unlawfully restrained of his liberty and thus entitled to release from incarceration upon this court's issuance of a writ of habeas corpus. Gerald T. McFaul, Cuyahoga County Sheriff, the respondent, has filed a motion to dismiss. This court will not issue a writ of habeas corpus when the petitioner has been lawfully restrained of his liberty. In re Petition for Mallory (1985), 17 Ohio St.3d 34, 476 N.E.2d 1045; Stahl v. Shoemaker (1977), 50 Ohio St.3d 351, 364 N.E.2d 286; In re Lockhart (1952), 157 Ohio St. 192, 105 N.E.2d 35. In the case at bar, Ivezzy pled guilty to one count of forgery and one count of attempted tampering with records in State v. Ivezzy, Cuyahoga County Court of Common Pleas Case No. CR-417633. On April 8, 2002, the following sentence was imposed by the trial court: Defendant in court with counsel Donald Butler. On a former day of court defendant plead [sic] guilty to -3- forgery R.C. 2913.31 F-5 Senate Bill Two, as charged in count one; attempt (sic) tampering with records R.C. 2923.02/2913.42 F-4 senate Bill Two, as amended in count eight. The court considered all of the required factors of the law. The court finds that a community control sanction will adequately protect the public and will not demean the seriousness of the offense. It is therefore ordered that the defendant is sentenced to two years of community control, under the supervision of the adult probation department with the following condition(s): defendant to abide by the rules and regulations of the probation department; have no new cases; work full-time (provide verification); provide proof of insurance to the probation officer. Violation of the terms and conditions may result in more restrictive sanctions, or a prison term of one year on F-4 and nine months on F-5, counts to run concurrent to each other. The defendant is ordered to report to the Adult Probation Department. Defendant to pay court costs and standard supervision fee. Emphasis added. The sentence of community control imposed by the trial court on April 8, 2002, expressly provided that Ivezzy "have no new cases." On March 19, 2003, Ivezzy was indicted by the Grand Jury of Cuyahoga County for one count of attempted rape, one count of kidnapping, three counts of gross sexual imposition, two counts of sexual battery, and one count of obstructing justice in CR-435220. Clearly, Ivezzy has violated the terms of his sentence of community control, as a result of his indictment for the offenses of attempted rape, kidnapping, gross sexual imposition, sexual -4- battery, and obstructing justice. Pursuant to R.C. 2951.08, the trial court was authorized to issue a warrant for Ivezzy's arrest based upon the violation of the terms of the sentence of community control as imposed in CR-417633. Thus, Ivezzy 's present incarceration for violation of the terms of community control does not constitute an unlawful restraint of his liberty. Under the facts presented to this court, habeas corpus will not issue. Cf. Thornton v. Russell (1998), 82 Ohio St.3d 93, 694 N.E.2d 464; State ex rel. Ranzy v. Coyle (1998), 81 Ohio St.3d 109, 689 N.E.2d 563; Hammond v. Dallman (192), 63 Ohio St.3d 666, 590 N.E.2d 744. It must also be noted that there is no specific period of time during which the trial court is required to conduct a hearing vis- a-vis Ivezzy's arrest for violation of the terms of the sentence of community control. Cf. State ex rel. Taylor v. Ohio Adult Parole Authority (1993), 66 Ohio St.3d 121, 609 N.E.2d 546. Finally, an appeal is the proper remedy should the trial court, following a hearing, vacate the sentence of community control and impose a sentence of incarceration upon Ivezzy. State ex rel. Tucker v. Rogers (1993), 6 Ohio St.3d 36, 607 N.E.2d 461. Accordingly, we grant the motion to dismiss as filed by Gerald T. McFaul, Cuyahoga County Sheriff. It is further ordered that the Clerk of the Eighth District Court of Appeals serve upon all parties notice of this judgment and date of entry as mandated by Civ.R.58(B). Costs to Ivezzy. -5- Petition for writ of habeas corpus dismissed. MICHAEL J. CORRIGAN, P.J. AND TIMOTHY E. MCMONAGLE, J., CONCUR. DIANE KARPINSKI JUDGE .