State ex rel. Corrigan v. McAllister, 84-1357

• Decision Date: 17 July 1985
• Docket Number: No. 84-1357,84-1357
• Citation: 480 N.E.2d 783,18 Ohio St.3d 239,18 OBR 296
• Parties: , 18 O.B.R. 296 The STATE, ex rel. CORRIGAN, Pros. Atty., et al., Appellants, v. McALLISTER, Judge, Appellee.
• Court: Ohio Supreme Court

Page 239

18 Ohio St.3d 239

480 N.E.2d 783, 18 O.B.R. 296

The STATE, ex rel. CORRIGAN, Pros. Atty., et al., Appellants, v. McALLISTER, Judge, Appellee.

No. 84-1357.

Supreme Court of Ohio.

July 17, 1985.

John T. Corrigan, Pros. Atty., Michael S. Nolan and Gary W. Eisner, Cleveland, for appellants.

Ralph A. McAllister, pro se, and Alan J. Sills, Cleveland, for appellee.

PER CURIAM.

It is well-settled that "[i]n order to grant a writ of mandamus, the court must find that relator has a clear legal right to the relief prayed for, that respondent is under a clear legal duty to perform the requested act, and that relator has no plain and adequate remedy at law." State, ex rel. Heller, v. Miller (1980), 61 Ohio St.2d 6, 399 N.E.2d 66 , paragraph one of the syllabus; State, ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28, 29, 451 N.E.2d 225, certiorari denied (1983), 464 U.S. 1017, 104 S.Ct. 548, 78 L.Ed.2d 723; State, ex rel. Bd. of Commrs., v. Weir (1983), 6 Ohio St.3d 381, 383-384, 453 N.E.2d 676;

On the issue of an adequate remedy at law, we have repeatedly held that the extraordinary writ of mandamus will not lie "where the relator has or had available a clear, plain and adequate remedy in the ordinary course of the law." State, ex rel. Sibarco Corp., v. Berea (1966), 7 Ohio St.2d 85, 88, 218 N.E.2d 428 ; State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, 228 N.E.2d 631 ; State, ex rel. Leis, v. Outcalt (1980), 62 Ohio St.2d 331, 333, 405 N.E.2d 725 . As was recognized in State, ex rel. Cleveland, v. Calandra (1980), 62 Ohio St.2d 121, 122, 403 N.E.2d 989 , where a party seeking a writ of mandamus possesses a direct appeal to the court of appeals, such avenue of review is a sufficiently plain and adequate remedy which will preclude the issuance of the writ. Accord State, ex rel. Berger, v. McMonagle, supra, 6 Ohio St.3d at 30, 451 N.E.2d 225.

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. On the other hand, the limited right of appeal under R.C. 2945.67(A), as well as double-jeopardy considerations, compels us to conclude that appellant Corrigan is without a clear, plain and adequate remedy at law. Thus, as to this appellant, we proceed to resolve the question of whether a clear legal right existed to have a special venire.

At the time of the issuance of the writ in State, ex rel. Corrigan, v. McMonagle, 12 Ohio St.3d 15, 465 N.E.2d 382 (1984), R.C. 2901.02(B) provided that "[a]ggravated murder, and any offense for which death may be imposed as a penalty, is a capital offense." In State v. Henry, supra, we concluded that pursuant to the foregoing language an aggravated murder is a capital offense and hence subject to further protections provided under R.C. Title 29, regardless of whether death may be imposed as a result of the conviction. Included within those further protections is the requirement that a special venire be provided in capital cases.

Appellant Corrigan first suggests that a special venire is required in the cause pending below on the authority of State, ex rel. Corrigan, v. McMonagle, supra. According to appellant, the legislative amendment to R.C. 2901.02(B) was in place as of the date of the decision in State, ex rel. Corrigan, in July 1984, an amendment of which this court was aware as evinced in the footnote appearing at 12 Ohio St.3d at 16, 465 N.E.2d 382. Appellant therefore suggests that we have interpreted the amendment so as to apply only to capital trials where the crime has been committed subsequent to the legislative amendment to R.C. 2901.02(B). We disagree.

In State, ex rel. Corrigan, this court was confronted with the issue of whether an accused was entitled to a special venire when the trial was scheduled to commence prior to the effective date of the amendment to R.C. 2901.02(B), whereas in the case at bar the issue is whether the accused is entitled to a special venire in a trial scheduled subsequent to the effective date of the amendment. This distinction alone serves to significantly distinguish our holding in State, ex rel. Corrigan, from the instant cause.

Alternatively, appellant maintains that to deny the accused a special venire by virtue of the April 1984 amendment to R.C. 2901.02(B) would contravene the ex post facto prohibition contained under Section 10, Article I of the United States Constitution.

On numerous occasions the United States Supreme Court has addressed the parameters of the ex post facto prohibition. As stated by Justice Marshall in the majority opinion in Weaver v. Graham (1981), 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17: " * * * [T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it."

In Beazell v. Ohio (1925), 269 U.S. 167, 169-170, 46 S.Ct. 68, 69, 70 L.Ed. 216, Justice Stone summarized the following elements which characterize ex post facto legislation:

"It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto."

Thus, in Beazell, the court rejected an ex post facto contention when an Ohio law, formerly providing for separate trials when two or more persons were jointly indicted for a felony, was amended to require a joint trial unless the court for good cause shown ordered separate trials.

In Dobbert v. Florida (1977), 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344, the court examined several ex post facto claims arising under the Florida death-penalty statute. At the time the petitioner committed first-degree murder, the Florida death-penalty scheme provided that a jury recommendation of mercy was binding and hence not reviewable by the trial judge. Prior to petitioner's trial, the statute was amended to provide that notwithstanding a recommendation by the jury, the trial court was empowered to enter a sentence of either life imprisonment or death. At the conclusion of petitioner's sentencing hearing the jury recommended by a ten to two majority that a sentence of life imprisonment be imposed. Pursuant to his newly granted authority under the Florida statute, the trial judge overruled this recommendation in favor of the death sentence.

In rejecting petitioner's ex post facto claim, Justice Rehnquist stated for the majority at 293-294, 97 S.Ct. at 2298 as follows:

"It is equally well settled, however, that '[t]he inhibition upon the passage of ex post facto laws does not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed.' Gibson v. Mississippi, 162 U.S. 565, 590 [16 S.Ct. 904, 910, 40 L.Ed. 1075] (1896). '[T]he constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive legislation, see Malloy v. South Carolina [1915], 237 U.S. 180, 183 [35 S.Ct. 507, 508, 59 L.Ed. 905], and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance.' Beazell v. Ohio, supra [269 U.S.], at 171 .

"Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto. For example, in Hopt v. Utah, 110 U.S. 574 [4 S.Ct. 202, 28 L.Ed. 262] (1884), as of the date of the alleged homicide a convicted felon could not have...