Opinion
No. 109080
12-06-2019
STATE EX REL. ROBERT L. THOMAS, Relator, v. DANIEL GAUL, JUDGE, Respondent.
Appearances: Robert L. Thomas, pro se, relator. Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for respondent.
JOURNAL ENTRY AND OPINION JUDGMENT: WRIT DENIED Writ of Mandamus
Motion No. 533014
Order No. 533804 Appearances: Robert L. Thomas, pro se, relator. Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for respondent. MARY J. BOYLE, P.J.:
{¶ 1} Relator, Robert L. Thomas, seeks a writ of mandamus directing respondent, Judge Daniel Gaul, to vacate Thomas's convictions in State v. Thomas, Cuyahoga C.P. No. CR-13-579375-A. Respondent's motion for summary judgment is granted, and Thomas's request for writ of mandamus is denied.
I. Background
{¶ 2} On October 4, 2019, Thomas filed a complaint for a writ of mandamus. According to the complaint, he was charged with several counts of rape, kidnapping, and disseminating matter harmful to juveniles in State v. Thomas, Cuyahoga C.P. No. CR-13-571292. That case was later dismissed without prejudice during the pretrial phase. Thomas was indicted in CR-13-579375-A and charged with substantially similar crimes based on the same factual allegations as the previously dismissed case. Thomas was found guilty of numerous charges and received two consecutive prison sentences of 25 years to life.
{¶ 3} Thomas claims that the dismissal of CR-13-571292 was premised on the denial of his right to a speedy trial under R.C. 2945.72. However, the journal entry dismissing this case, attached to Thomas's complaint, provides that this case was dismissed without prejudice pursuant to a motion by the prosecutor. The journal entry does not dismiss the case with prejudice or mention speedy trial. Thomas goes on to assert that double jeopardy and collateral estoppel prevent his reindictment and conviction in CR-13-579375-A. Finally, Thomas argues that he is entitled to relief in mandamus because the judgment of conviction in CR-13-579375-A is void and he possesses no adequate remedy in the ordinary course of law to address the void judgment. He claims his judgment of conviction is a void judgment that is not a final, appealable order capable of invoking appellate review.
{¶ 4} Respondent filed a motion for summary judgment on October 22, 2019, to which Thomas filed an untimely response. There, respondent asserted that relief in mandamus was precluded because mandamus is not an appropriate means to address speedy trial or double jeopardy claims, and Thomas has or had an adequate remedy of law by way of appeal; which he in fact exercised by filing two prior appeals.
II. Summary Judgment
{¶ 5} The matter is before the court on respondent's motion for summary judgment. "'Summary judgment is appropriate when an examination of all relevant materials filed in the action reveals that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."'" State ex rel. Parker v. Russo, Slip Opinion No. 2019-Ohio-4420, ¶ 5, quoting Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12, quoting Civ.R. 56(C).
III. Request to Vacate a Void Judgment of Conviction
{¶ 6} Entitlement to relief in mandamus is only appropriate where: (1) the relator shows that they have a clear legal right to the requested relief, (2) the respondent has a clear legal duty to perform the requested relief, and (3) there is no adequate remedy at law. State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914 (1987). Outside of limited exception not applicable here, if the relator possesses an adequate remedy at law, whether used or not, relief in mandamus is unavailable. State ex rel. Kerns v. Simmers, 153 Ohio St.3d 103, 2018-Ohio-256, 101 N.E.3d 430.
{¶ 7} First, Thomas's action ultimately seeks release from prison through the vacation of his convictions and sentences — something that may be accomplished through habeas corpus, not mandamus. State ex rel. Lemmon v. Ohio Adult Parole Auth., 78 Ohio St.3d 186, 677 N.E.2d 347 (1997); State ex rel. Elko v. Suster, 110 Ohio St.3d 212, 2006-Ohio-4248, 852 N.E.2d 731. Thomas's complaint for mandamus is denied for this reason.
{¶ 8} Even if Thomas's claim was appropriate for mandamus, he possesses an adequate remedy at law precluding relief in mandamus.
{¶ 9} Thomas claims he lacks an adequate remedy at law because his judgment of conviction is void in that respondent acted without authority to enter convictions in CR-13-579375-A.
{¶ 10} In general, a void order "is one that has been imposed by a court that lacks subject-matter jurisdiction over the case or the authority to act." State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 12. Thomas cites to double jeopardy and collateral estoppel as the basis for his assertion that his convictions are void, but also states in his complaint that a judgment of acquittal is necessary to trigger these concepts. Thomas has failed to show that there is a judgment of acquittal that precludes his convictions in CR-13-579375-A.
{¶ 11} The certified entry dismissing CR-13-571292, attached to respondent's motion for summary judgment and also attached to Thomas's complaint, indicates that dismissal was without prejudice. On the face of the entry, the dismissal was not premised on a violation of speedy trial rights as Thomas claims. Therefore, R.C. 2945.72, the statute codifying Ohio's speedy trial rights, does not bar retrial. This also means Thomas has not established that there is a judgment of acquittal that would trigger protections afforded by double jeopardy or collateral estoppel.
{¶ 12} In his brief in opposition to summary judgment, Thomas asserted a new argument — that CR-13-571292 was dismissed for want of sufficient evidence. This was not alleged in the complaint, contradicts the allegations in the complaint, and contradicts the journal entry attached to the complaint. Even if this claim were considered, the journal entry of dismissal without prejudice in CR-13-571292 does not support Thomas's claim.
{¶ 13} Additionally, protections afforded by the Double Jeopardy Clause of the United States and Ohio Constitutions are matters that must be addressed on appeal. State ex rel. Martin v. Russo, 8th Dist. Cuyahoga No. 96328, 2011-Ohio-3268, ¶ 7-8 ("appeal, and not mandamus, is the proper remedy for addressing issues of double jeopardy"), citing State ex rel. Nash v. McMonagle, 8th Dist. Cuyahoga No. 72357, 1997 Ohio App. LEXIS 2998 (July 10, 1997). See also State ex rel. Hawk v. Athens Cty., 106 Ohio St.3d 183, 2005-Ohio-4383, 833 N.E.2d 296, ¶ 6 ("Hawk's double-jeopardy claim is not cognizable in mandamus"); State ex rel. Dix v. McAllister, 81 Ohio St.3d 107, 108, 689 N.E.2d 561 (1998) ("Dix's double jeopardy claim is not cognizable in mandamus"). The same is true for claimed violation of speedy trial. State ex rel. Nash v. Fuerst, 8th Dist. Cuyahoga No. 87966, 2006-Ohio-5261, ¶ 8 ("Speedy trial issues can be addressed only through direct appeal."), citing State ex rel. Dix v. Angelotta, 18 Ohio St.3d 115, 480 N.E.2d 407 (1985). Based on these and other cases that hold the same, appeal is an adequate remedy to address these claims.
{¶ 14} Thomas's void argument also fails in light of the fact that he appealed his convictions in CR-13-579375-A. Thomas filed a direct appeal where this court affirmed his convictions, but remanded for resentencing. State v. Thomas, 8th Dist. Cuyahoga No. 101797, 2015-Ohio-3225. Thomas affirmatively availed himself of the adequate remedy at law that he possessed.
{¶ 15} Finally, Ohio's Postconviction relief statute also provides the relief Thomas now seeks in mandamus:
Any person who has been convicted of a criminal offense * * * and who claims that there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States * * * may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief.R.C. 2953.21(A)(1)(a). If Thomas's claim relies on information outside of the appellate record, which may not be argued on appeal, a petition for postconviction relief also provides an adequate remedy to raise the claims Thomas now advances.
Thomas filed a petition for postconviction relief where he argued, among other things, violations of his right to a speedy trial. This petition was denied. State v. Thomas, 8th Dist. Cuyahoga No. 103784, 2016-Ohio-3327. --------
{¶ 16} Thomas possesses or possessed an adequate remedy at law through timely appeal or postconviction petition to raise claims of speedy trial, double jeopardy, or collateral estoppel. This precludes mandamus relief and is determinative of this action.
{¶ 17} For all of the foregoing reasons, respondent's motion for summary judgment is granted. Relator to pay costs. Costs waived. The clerk of courts is directed to serve notice of this judgment upon all parties as provided in Civ.R. 58(B).
{¶ 18} Writ denied. /s/_________
MARY J. BOYLE, PRESIDING JUDGE ANITA LASTER MAYS, J., and
KATHLEEN ANN KEOUGH, J., CONCUR