State ex rel. Anton I. Billings v. Carolyn B. Friedland, Judge, Court of Common Pleas, Cuyahoga County, Ohio, Case, 99-LW-4090

• Decision Date: 16 September 1999
• Docket Number: 99-LW-4090,76597
• Parties: STATE OF OHIO ex rel. ANTON I. BILLINGS, Relator v. CAROLYN B. FRIEDLAND, JUDGE, COURT OF COMMON PLEAS, CUYAHOGA COUNTY, OHIO, Respondent CASE
• Court: Ohio Court of Appeals

STATE OF OHIO ex rel. ANTON I. BILLINGS Relator v. CAROLYN B. FRIEDLAND, JUDGE, COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO, Respondent

No. 76597.

99-LW-4090 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

September 16, 1999

PETITION FOR WRIT OF MANDAMUS

MOTION NO. 9724

For relator: ANTON I. BILLINGS, pro se, #A283-729, Post Office Box 789, Mansfield, Ohio 44901-0788.

For respondent: WILLIAM D. MASON, Cuyahoga County Prosecutor LISA REITZ WILLIAMSON, Assistant, Justice Center, Courts Tower, 1200 Ontario Street, Cleveland, Ohio 44113.

OPINION

JAMES M. PORTER, A.J.

Anton I. Billings, relator, is seeking a writ of mandamus to compel respondent, Judge Carolyn B. Friedland, to vacate his criminal convictions and sentence adjudicated in Cuyahoga County C.P. Case No. CR-288250 entitled State v Billings. Relator claims respondent lacked jurisdiction to try him because his written jury waiver form was not file-stamped by the clerk of court and therefore not "filed in said cause and made a part of the record thereof" as required in R.C. 2945.05 and State v. Pless (1996), 74 Ohio St.3d 333, 658 N.E.2d 766. Both parties moved for summary judgment and, for the reasons that follow, we grant respondent's motion for summary judgment and deny relator's motion for summary judgment.

I. BACKGROUND

A. TRIAL

Relator was indicted on charges of aggravated arson, improper discharge of a firearm and two counts of felonious assault with specifications. Prior to trial, relator waived his right to be tried by a jury as follows:

Anton Billings was present in court with counsel and the trial judge carefully examined him, explained his rights and determined his action in seeking the waiver was knowingly, intelligently and voluntarily entered. This is recorded in a certified copy of the proceedings. Next, our examination of the file shows that the waiver is contained in and made a part of the record in this case. It is the original document and bears the signature of the defendant which is attested (sic) and witnessed by trial counsel in this case. * * * [T]he clerk's docket sheet verifies that the knowledgeable trial judge entered a journal entry contemporaneous with the signing of the waiver which was journalized and is part of the docket sheet in this file.

State v. Billings (1995), 103 Ohio App.3d 343, 348, 659 N.E.2d 799. The waiver form itself apparently did not contain the file stamp of the clerk of court. On January 6, 1994, following trial to the bench, the court convicted relator of the charged offenses.^[1]

B. DIRECT APPEAL

Relator appealed his conviction and sentence to this court and argued as one of his assignments of error that he was denied his right to a jury trial because he was not informed on the record that the jury's verdict had to be unanimous. During the pendency of relator's appeal, the Supreme Court of Ohio decided the habeas corpus action entitled State ex rel. Jackson v. Dallman (1994), 70 Ohio St.3d 261, 638 N.E.2d 563. In Jackson, despite the fact that Mr. Jackson had appealed his conviction and sentence without contesting the jurisdiction of the trial court, see State v. Jackson (Aug. 12, 1993), Cuyahoga App. No. 63535, unreported, the Ohio Supreme Court granted the writ of habeas corpus, discharged Mr. Jackson from prison (with the opportunity for retrial), and held that there was "no evidence that the written waiver form was ever filed and made a part of the record in Jackson's criminal case. Therefore, the common pleas court did not comply with R.C. 2945.05, and it lacked jurisdiction to subsequently try and convict Jackson." Jackson, 70 Ohio St.3d at 262. The Court went on the state that:

The writ of habeas corpus will lie in certain extraordinary circumstances where there is an unlawful restraint of a person's liberty and there is no adequate legal remedy. State ex rel. Pirman v. Money (1994), 69 Ohio St.3d 591, 593, 635 N.E.2d 26, 29. By far the most common situation in which habeas corpus relief is available is when the sentencing court patently and unambiguously lacked jurisdiction. R.C. 2725.05. This is the situation here.

Id. at 263.

Relator moved for and was granted permission to supplement his appeal with the Jackson authority. Relator, relying upon Jackson, thus contended that the failure of the trial court to comply with R.C. 2945.05 deprived the trial court of jurisdiction to try him. This court, however, distinguished the facts in relator's case from the facts in Jackson and affirmed relator's convictions. State v. Billings, 103 Ohio App.3d 343, 659 N.E.2d 799. Relator's motion for reconsideration was denied on April 17, 1995, and relator's motion to certify a conflict was denied on May 9, 1995.

C. OHIO SUPREME COURT APPEAL

On July 19, 1995, the Supreme Court of Ohio granted relator's motion for leave to file a delayed appeal. Billings, 73 Ohio St.3d 1412, 651 N.E.2d 1310. During the pendency of relator's appeal, the Ohio Supreme Court decided the habeas corpus action entitled State ex rel. Larkins v. Baker (1995), 73 Ohio St.3d 658, 653 N.E.2d 701. In Larkins, where Mr. Larkins, signed jury waiver form was in the court's case file but was not file-stamped, the court denied habeas relief and held that "[t]he failure to strictly comply with R.C. 2945.05 under the circumstances here is neither a jurisdictional defect nor an error for which no adequate remedy at law exists. Larkins could have raised the error in his direct appeal." Larkins, 73 Ohio St.3d at 660. The Court continued and stated that:

Of greater import is the express language of R.C. 2945.06, which conditions the trial judge's authority to proceed with a bench trial in those cases that `a defendant waives his right to trial by jury and elects to be tried by the court under section 2945.05 of the Revised Code.' Larkins fulfilled this condition to the common pleas court's authority to hold a bench trial, (sic) by executing a written waiver of his right to a jury trial and electing to be tried by the court. The failure to strictly comply with R.C. 2945.05 by not filing the executed written waiver was not the result of Larkins's (sic) failure to properly waive his right to be tried by a jury and elect to be tried by the court. The evidence is uncontroverted that he did so. Instead, the failure to comply with R.C. 2945.05 was the result of an error on the part of the trial court to formally file the executed written waiver.

Based on the foregoing, the failure to strictly comply with R.C. 2945.05 by failing to file a properly executed written jury trial waiver under these unique circumstances is not a jurisdictional defect and did not affect the trial court's authority to proceed with a bench trial. Dallman is particularly distinguishable from the instant case since the written waiver was not physically placed in the record in that case, and since Dallman did not stipulate that he had waived his right to a jury trial but instead disputed whether the waiver had been made. Tate [1979), 59 Ohio St.2d 50, 391 N.E.2d 7381 addressed the general issue of compliance with R.C. 2945.05 only in the context of a direct appeal In addition, to the extent that they are inconsistent with our holding, we limit the holdings of Dallman and Tate.

Id. at 661.

On November 15, 1995, the Supreme Court of Ohio disallowed relator's discretionary appeal. Billings, 74 Ohio St.3d 1455, 656 N.E.2d 950.

D. CASE LAW POST-APPEALS

On January 17, 1996, the Supreme Court of Ohio decided State v. Pless (1996), 74 Ohio St.3d 333, 658 N.E.2d 766. In Pless, the defendant had signed a jury waiver form and the court had issued a journal entry to that effect, but the jury waiver form had not been made a part of the record. The Ohio Supreme Court reversed the judgment of the appellate court affirming the convictions, vacated the judgment of the trial court, remanded the case to the trial court for a new trial, and held as follows:

1.

In a criminal case where the defendant elects to waive the right to trial by jury, R.C. 2945.05 mandates that the waiver must be in writing, signed by the defendant, filed in the criminal action and made part of the record thereof. Absent strict compliance with the requirements of R.C. 2945.05, a trial court lacks jurisdiction to try the defendant without a jury. (State v. Tate * * *, and State ex rel. Jackson v. Dallman * * *, construed and applied.)

2.

The failure to comply with R.C. 2945.05 may be remedied only in a direct appeal from a criminal conviction (State v. Tate * * *, State ex rel. Jackson v. Dallman * * *; and State ex rel. Larkins v. Baker * * *, harmonized.)

Pless, 74 Ohio St.3d at 333-34, syllabus.

Relying on the holding in Pless, Mr. Larkins, who had been denied habeas relief, filed a mandamus action in this court on March 10, 1998, seeking to vacate his 1986 convictions because the trial court failed to comply with R.C. 2945.05. Mr. Larkins also relied on State ex rel. Ballard v. O'Donnell (1990), 50 Ohio St.3d 182, 553 N.E.2d 650. In Ballard, the trial court had rendered a judgment in a civil case against a person who was not served with summons, did not appear, and was not a party in the court proceedings. Mr Ballard moved to vacate the judgment, claiming the court lacked jurisdiction over him, and also commenced a mandamus action on the same grounds. The trial court denied the motion to vacate and this court denied the writ of mandamus. Mr. Ballard appealed the denial of the writ of mandamus to the Supreme Court of Ohio, which reversed the judgment of this court, issued the writ of mandamus, and held as follows:

1.

A trial court is without jurisdiction to render judgment or to make findings against a person who was not served summons, did not appear, and was not a party in the court proceedings

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