Cochrane v. D'Apolito

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[Cite as Cochrane v. D'Apolito, 2022-Ohio-1128.] IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY DESMOND COCHRANE, Petitioner, v. HONORABLE JUDGE ANTHONY M. D’APOLITO et al., Respondents. OPINION AND JUDGMENT ENTRY Case No. 21 MA 0040 Writ of Habeas Corpus BEFORE: Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges. JUDGMENT: Respondents’ motion to dismiss Petitioner’s petition sustained. Petition for writ of habeas corpus dismissed. Atty. Ross T. Smith, Huntington Bank Building, 26 Market Street, Suite 610, Youngstown, Ohio 44503, for Petitioner and Atty. Ralph M. Rivera, Assistant Chief, Criminal Division, Office of the Mahoning County Prosecutor, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Respondents. –2– Dated: January 14, 2022 PER CURIAM. {¶1} Petitioner Desmond Cochrane has filed a petition for a writ of habeas corpus seeking immediate release from the Mahoning County Jail, where he previously was incarcerated awaiting trial. The petition names three respondents: the Honorable Judge Anthony M. D’Apolito, the Honorable Judge John M. Durkin, Mahoning County Sheriff Jerry Green, and Mahoning County Prosecutor, Paul J. Gains. Respondents have filed a joint motion to dismiss. {¶2} Pursuant to a Crim.R. 11(F) negotiated plea agreement, Petitioner pleaded guilty in February 2018 to improper handling of a firearm in a motor vehicle in violation of R.C. 2923.16(B), a fourth-degree felony. State v. Cochrane, Mahoning C.P. No. 2017 CR 01210 (Feb. 27, 2018). Petitioner faced anywhere from six to eighteen months in prison. R.C. 2929.14(A)(4). The trial court sentenced Petitioner to two years of community control. In its judgment entry of sentence, the court cautioned a “[v]iolation of this sentence may lead to a longer or more restrictive sanction for Defendant, up to and including a prison term of up to Eighteen (18) Months followed by an optional post-release control period of three (3) years to be monitored by the Adult Parole Authority.” Petitioner did not pursue an appeal of his conviction and sentence. {¶3} Meanwhile, on September 25, 2019, Petitioner was arrested and charged with felonious assault in violation of R.C. 2903.11(A)(1), a second-degree felony. State v. Cochrane, Youngstown M.C. No. 19CRA01515Y (Sept. 25, 2019). The court set bond at $20,000.00 cash/surety. {¶4} The following day, the State moved to revoke Petitioner’s community control in the 2018 case. State v. Cochrane, Mahoning C.P. No. 2017 CR 01210 (Sept. 26, 2019). Petitioner waived his right to a probable cause hearing on the community-control violation, stipulated to probable cause, and the court ordered him held without bond. {¶5} In the municipal court case, Petitioner waived his right to a preliminary hearing and agreed to be bound over to the grand jury resulting in a two-count indictment. State v. Cochrane, Mahoning C.P. No. 2019 CR 00844 (Oct. 17, 2019). Count one was for felonious assault in violation of R.C. 2903.11(A)(2), a second-degree felony, R.C. Case No. 21 MA 0040 –3– 2903.11(D)(1)(a), with an attendant three-year firearm specification in violation of R.C. 2941.145(A). Count two was for conspiracy to commit murder/aggravated murder in violation of R.C. 2923.01(A)(1), a first-degree felony, R.C. 2923.01(J)(1). Petitioner pleaded not guilty at arraignment and the court continued the bond at $20,000 cash/surety. {¶6} The case proceeded to discovery and other pretrial matters. A superseding indictment was issued on July 9, 2020, charging Petitioner with the same offenses. At his arraignment on the superseding indictment, the court again continued the bond. The matter continued with further discovery and other pretrial matters, including a motion filed by the State on March 15, 2021, to modify Petitioner’s bond. The trial court granted the motion and modified Petitioner’s bond to $150,000 cash/surety. {¶7} On April 28, 2021, Petitioner filed the present petition for a writ of habeas corpus arguing that the $150,000 bond was excessive. Petitioner then pleaded guilty to felonious assault with a firearm specification. The trial court sentenced Petitioner to an indefinite term of two to three years for the felonious assault offense and three years for the firearm specification to be served consecutive but prior to the felonious assault sentence. {¶8} Due to his plea and sentence, Petitioner has already been convicted in the underlying case rendering his excessive-bail argument moot. Turner v. Coulson, 11th Dist. Lake No. 2015-L-087, 2015-Ohio-5341, ¶ 15; State ex rel. Zayed v. McFaul, 8th Dist. Cuyahoga No. 87110, 2005-Ohio-6974, ¶ 4-5. {¶9} Additionally, the Court has been divested of jurisdiction to consider the petition. R.C. 2725.02 grants to a court of appeals the ability to authorize writs of habeas corpus. However, R.C. 2725.03 requires that actions in habeas corpus be filed in the county where an inmate or prisoner is confined: If a person restrained of his liberty is an inmate of a state benevolent or correctional institution, the location of which is fixed by statute and at the time is in the custody of the officers of the institution, no court or judge other than the courts or judges of the county in which the institution is located has jurisdiction to issue or determine a writ of habeas corpus for his production or discharge. Any writ issued by a court or judge of another county to an Case No. 21 MA 0040 –4– officer or person in charge at the state institution to compel the production or discharge of an inmate thereof is void. (Emphasis added.) {¶10} Shortly after the filing of his petition and his conviction and sentence, Petitioner was transferred from the Mahoning County Jail into the custody of the Ohio Department of Rehabilitation and Correction and placed at the Lake Erie Correctional Institution, located in Conneaut, Ashtabula County, Ohio, beyond this Court’s territorial jurisdiction. {¶11} Accordingly, the Court sustains Respondents’ motion to dismiss the petition. Petition dismissed. {¶12} Final order. Clerk to serve notice as provided by the Rules of Civil Procedure. Costs taxed to Petitioner. JUDGE CAROL ANN ROBB JUDGE GENE DONOFRIO JUDGE CHERYL L. WAITE Case No. 21 MA 0040

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