STATE, EX REL. HADLOCK, v. MCMACKIN, 61 Ohio St.3d 433 (1991)

575 N.E.2d 184

THE STATE, EX REL. HADLOCK, APPELLANT, v. MCMACKIN, WARDEN, APPELLEE.

No. 90-1919Supreme Court of Ohio.Submitted April 16, 1991 —
Decided August 14, 1991.

APPEAL from the Court of Appeals for Marion County, No. 9-90-42.

On February 8, 1985, appellant, Wes Hadlock, was sentenced by the Court of Common Pleas of Cuyahoga County to a term of ten to twenty-five years for kidnapping and a consecutive term of five to ten years for extortion. He is now in the custody of the Marion Correctional Institution, where appellee is the warden.

Appellant filed a complaint for a writ of habeas corpus in the Court of Appeals for Marion County. His complaint asserted that the government authorities committed forgery and fraud and fabricated public records to fraudulently create jurisdiction in Cuyahoga County, Ohio, and that the indictment as “demonstrated” by the bill of particulars listed Daniel Hadlock, Elmer Hadlock and John Olsavsky, but not Wes Hadlock. The court of appeals dismissed the complaint, holding that habeas corpus was not the proper remedy since the appellant had been convicted and sentenced by a court of competent jurisdiction.

On September 5, 1990, appellant filed a notice of appeal in the court of appeals. He filed a copy in this court on October 9, 1990, which was thirty-four days after the filing in Marion County.

The cause is before this court upon an appeal as of right.

Wes Hadlock, pro se.
Lee I. Fisher, Attorney General, and John J. Gideon, for appellee.

Per Curiam.

We affirm the decision of the court of appeals.

Appellee argues that appellant’s appeal should be dismissed on the ground that the notice of appeal was filed in this court thirty-four days after it was filed in the court of appeals. Section 1(B), Rule I of Supreme Court Rules of Practice provides in part:

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“A copy of that notice of appeal must be filed or offered for filing in the Supreme Court not later than thirty days after the filing of such notice in the Court of Appeals. * * *”

The failure to comply with the thirty-day time limit in the rule renders the appeal subject to dismissal. See Bazell v. Cincinnati (1968), 13 Ohio St.2d 63, 42 O.O.2d 137, 233 N.E.2d 864; State, ex rel. Durkin, v. Ungaro (1988), 39 Ohio St.3d 191, 529 N.E.2d 1268.

Appellant asserts that the filing was in the possession and control of appellee on October 4, 1990, which if filed then, would have come within the boundaries of the rule. Although appellant has submitted no evidence to support his allegations, we exercise our discretion under Section 1, Rule II of the Supreme Court Rules of Practice and proceed to the merits.

Appellant’s petition challenges the sufficiency of his indictment on the ground that it was fraudulently obtained. However, a challenge to the sufficiency of an indictment on the ground that it was fraudulently obtained does not go to the issue of jurisdiction and is not grounds for issuance of a writ of habeas corpus. A defendant may challenge the sufficiency of the indictment only by a direct appeal, and not through habeas corpus. State v. Wozniak (1961), 172 Ohio St. 517, 522-523, 18 O.O.2d 58, 61, 178 N.E.2d 800, 804.

Appellant also alleges fraud and numerous irregularities surrounding his conviction and sentencing. In a case in which a prisoner alleged similar claims, State, ex rel. Justice, v. McMackin (1990), 53 Ohio St.3d 72, 73, 558 N.E.2d 1183, 1183-1184, we held that a petition in habeas corpus does not challenge the jurisdiction of the sentencing court where it alleges fraud on the part of the authorities involved in the prosecution.

Accordingly, we affirm the judgment of the court of appeals.

Judgment affirmed.

MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.

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