Opinion
No. 70-595
Decided July 7, 1971.
Habeas corpus — Appeal — Judgment affirmed, when — In absence of record — Court of Appeals — Judicial power of judge — Not personal to him.
APPEAL from the Court of Appeals for Cuyahoga County.
On July 23, 1970, appellant filed a petition for a writ of habeas corpus in the Court of Appeals, alleging that the sheriff of Cuyahoga County is holding him imprisoned and restrained of his liberty without any legal authority, in violation of R.C. 2967.15 and his rights under the due process clause of the Fourteenth Amendment, and contrary to the constitution and statutes of the state of Ohio and of the federal government. The writ was served on the sheriff by the county coroner on July 24, 1970. The record does not indicate that the sheriff made a return of the writ pursuant to R.C. 2725.14. On August 3, 1970, the writ was allowed and the defendant ordered released from the jurisdiction of the parole authority.
Subsequently, on August 5, 1970, the Attorney General, on behalf of the Adult Parole Authority, filed a motion to reconsider the court's judgment on the petition for writ of habeas corpus, and moved the court to vacate its entry of August 3, 1970. On August 10, 1970, the motion to reconsider was granted. The Court of Appeals then issued the following order:
"Upon the rehearing of the petition for habeas corpus writ denied."
Appellant argues that the Court of Appeals issuing this order was composed of two of the judges who rendered the judgment of August 3, 1970, allowing the writ, and one other member who had not.
There is no indication in the record that petitioner or his counsel was present in court or that a hearing was held on August 10, 1970.
Pursuant to appellant's notice of appeal, the cause is now before this court on appeal as a matter of right.
Messrs. Gill, Keenan Corrigan, for appellant.
Mr. William J. Brown, attorney general, and Mr. William E. Dunlap, Jr., for appellee.
Appellee, in his brief, relates the following facts which are completely extraneous to the record: That appellant, while on parole, was arrested on May 9, 1970, and charged with armed robbery; that the Adult Parole Authority placed a detainer on appellant who was then in the custody of the sheriff; and that on June 1, 1970, the appellant was declared a parole violator by the parole authority.
A review of this cause can only be based upon facts contained in the original pleadings and transcript of journal entries. Upon the state of the record which is before this court appellant neither demonstrates the Court of Appeals' lack of jurisdiction to enter the orders set forth above, nor that his imprisonment is unlawful. In this case, the fact that the parties state facts not in the record will not satisfactorily present legal issues for our review.
Appellant complains that one judge who was not one of the three-judge panel which entered the order of August 3, 1970, was a member of the court panel which entered the order of August 10, 1970. This change of membership does not serve to deprive the court of jurisdiction to enter the August 10, 1970, order. The judicial power of a member of the Court of Appeals is not personal to him and may be exercised by another member of the Court of Appeals. See State v. White (1971), 27 Ohio St.2d 73.
In the absence of a record, obviously there is nothing that even suggests that the Court of Appeals, as constituted, which entered the August 10, 1970 order, unlawfully acted to appellant's prejudice.
Judgment affirmed.
O'NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN, CORRIGAN, STERN and LEACH, JJ., concur.