Opinion
No. 90-794
Submitted June 26, 1991 —
Decided October 9, 1991.
APPEAL from the Court of Appeals for Coshocton County, No. 90-CA-4.
On April 17, 1989, appellant, Daniel Everett Fyffe, Jr., was bound over from the Coshocton County Juvenile Court to the General Division of the Coshocton County Common Pleas Court to be tried as an adult. On April 19, 1989, he was indicted by a Coshocton County Grand Jury for aggravated murder with three death penalty specifications — aggravated robbery, aggravated burglary and kidnapping.
Appellant's counsel filed a motion with appellee, Richard I. Evans, judge of the Court of Common Pleas of Coshocton County, to have two attorneys appointed for appellant pursuant to C.P.Sup.R. 65 and to afford him procedures under R.C. 2929.021 (notice to Supreme Court required when aggravated murder with specifications is charged), 2929.022 (special procedures when the aggravated circumstance of a prior conviction is charged), and 2929.024 (investigation and expert for an indigent defendant). Judge Evans heard the motion as an ancillary action for declaratory judgment, found that it was "incomprehensible" that Fyffe would not raise the issue of his minority at trial since the prosecutor had conceded the issue, and held that since Fyffe did not face the possibility of death, the criminal justice system was relieved of the burden and expense of affording the special procedures available to an adult capital defendant, citing State, ex rel. Corrigan, v. McMonagle (1984), 12 Ohio St.3d 15, 12 OBR 13, 465 N.E.2d 382.
Fyffe appealed, but the court of appeals dismissed the case for lack of jurisdiction, finding no final appealable order. Fyffe then appealed to this court, which denied leave to appeal because no substantial constitutional question existed. ( 48 Ohio St.3d 710, 550 N.E.2d 480.)
Fyffe then filed a complaint in mandamus in the court of appeals, again seeking "appointment of two (2) qualified counsel under Rule 65 of the Rules of Superintendence for Courts of Common Pleas as well as the other protections, practices and procedures enunciated in Chapter [ sic] 29 of the Ohio Revised Code which accompany a person accused of a capital offense defined in § 2901.02(B) of the Ohio Revised Code."
The court of appeals dismissed the complaint on substantially the same basis that Judge Evans had dismissed the declaratory judgment action — that Fyffe was not entitled to the special procedures of C.P.Sup.R. 65 or the Revised Code because he could not be executed.
Fyffe appeals to this court as a matter of right.
Kincaid, Cultice Geyer and Peter N. Cultice, for appellant.
Susan A. Metz, Assistant Prosecuting Attorney, for appellee.
We affirm the decision of the court of appeals on the basis of our decision in State, ex rel. Corrigan, v. McAllister (1985), 18 Ohio St.3d 239, 18 OBR 296, 480 N.E.2d 783. In that case, the court of appeals denied a writ of mandamus requested by a defendant in an aggravated murder case who had requested that a special venire be impaneled pursuant to R.C. 2945.18 and 2945.19. We affirmed, stating:
"Appellant Fencl, if convicted, possesses an adequate remedy in the ordinary course of the law in the form of a discretionary right of appeal to the court of appeals whereby he can obtain review of appellee's decision to deny a special venire. Thus, as to this appellant, the writ should have been denied on the basis of the existence of an adequate remedy at law." Id. at 240, 18 OBR at 297, 480 N.E.2d at 785.
We apply the same reasoning to the other special procedures sought by appellant Fyffe in the court of appeals. Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.
I agree with the opinion of the majority, but I would deny the writ on the merits.