State ex rel. Keenan v. Calabrese

• Decision Date: 25 March 1994
• Docket Number: No. 94-231,94-231
• Citation: 69 Ohio St.3d 176,631 N.E.2d 119
• Parties: The STATE ex rel. KEENAN, Appellant, v. CALABRESE, Judge, Appellee.
• Court: Ohio Supreme Court

Page 176

69 Ohio St.3d 176

631 N.E.2d 119

The STATE ex rel. KEENAN, Appellant, v. CALABRESE, Judge, Appellee.

No. 94-231.

Supreme Court of Ohio.

Submitted March 23, 1994.

Decided March 25, 1994.

Thomas M. Keenan, relator-appellant, appeals from a summary judgment entered by the Cuyahoga County Court of Appeals denying his complaint for a writ of mandamus and/or prohibition to compel Cuyahoga County Common Pleas Court Judge Anthony O. Calabrese, respondent-appellee, to allow attorneys Paul Mancino, Jr. and John Higgins to represent appellant in State v. Keenan, Cuyahoga C.P. No. CR-232189 A, and to prohibit appellee from proceeding in the absence of appellant's requested counsel.

Appellant was convicted of two counts of aggravated murder with death specifications and was sentenced to death. The Cuyahoga County Court of Appeals affirmed the judgment of conviction and sentence, but upon further appeal, this court reversed the judgment based upon prosecutorial misconduct and remanded the cause to the court of common pleas for a new trial. State v. Keenan (1993), 66 Ohio St.3d 402, 613 N.E.2d 203. On remand, appellee was assigned to preside over the new jury trial, and he appointed attorneys Rocco Russo and James Kersey to represent appellant.

After expressing dissatisfaction and an inability to work with the two court-appointed attorneys, appellant subsequently retained two attorneys of his own choice, Paul Mancino, Jr. and John Higgins, to represent him in the new trial. Mancino had previously represented Joe D'Ambrosio, appellant's co-defendant in his original aggravated murder case, in D'Ambrosio's appeal to the Cuyahoga County Court of Appeals. State v. D'Ambrosio (Aug. 30, 1990), Cuyahoga App. No. 57448, unreported, 1990 WL 125453. Higgins had represented D'Ambrosio in his appeal to this court from the court of appeals' affirmance of his conviction and death sentence. State v. D'Ambrosio (1993), 67 Ohio St.3d 185, 616 N.E.2d 909.

On September 23, 1993, in a hearing concerning the representation of appellant in the new trial, the state moved to disqualify Mancino and Higgins as counsel for appellant. The state claimed that potential conflicts existed because of Mancino and Higgins' representation of appellant's prior co-defendant, D'Ambrosio, and because the state might call D'Ambrosio as a witness in appellant's new trial. Appellee granted the state's motion and disqualified Mancino and Higgins as counsel for appellant. Appellee noted that the counsel it had previously appointed, Russo and Kersey, would continue to represent appellant during his new trial.

On October 8, 1993, appellant filed a complaint for a writ of mandamus and/or prohibition in the court of appeals. Appellant sought a writ of mandamus to compel appellee to vacate its order disqualifying Mancino and Higgins and to allow them to represent appellant during the pending criminal proceedings. Appellant also requested a writ of prohibition to prevent appellee from further proceeding in the new trial without his chosen counsel.

Appellee filed a motion to dismiss the complaint, attaching a transcript of the September 23, 1993 proceeding. The court converted the dismissal motion to a motion for summary judgment. Appellant subsequently filed an affidavit which claimed that the September 23, 1993 transcript had been altered. Appellant additionally filed an affidavit by D'Ambrosio in which he stated that his interests were identical to appellant's, that he would testify on behalf of appellant in his new trial, and that he consented to Mancino and Higgins' representing appellant. On January 5, 1994, the court of appeals granted appellee's summary judgment motion and dismissed the complaint.

This cause is before the court upon an appeal as of right.

Paul Mancino, Jr., Cleveland, and John Higgins, Parma Heights, for appellant.

Stephanie Tubbs Jones, Cuyahoga County Pros. Atty., and L. Christopher Frey, Asst. Pros. Atty., for appellee.

PER CURIAM.

Appellant asserts in his first proposition of law that an order of a trial court in a criminal case disqualifying counsel who had been hired by a criminal defendant is subject to mandamus and/or prohibition since any appeal after judgment and sentence is not an adequate legal remedy. The court of appeals determined that appellant possessed an adequate remedy at law through appeal which precluded both prohibition and mandamus relief. In so holding, the court of appeals opined that the granting of the motion to disqualify counsel constituted a final appealable order. Nevertheless, a different panel of the same court of appeals dismissed appellant's direct appeal from the disqualification order on the basis that it was not a final appealable order. State v. Keenan (Jan. 14, 1994), Cuyahoga App. No. 66264, unreported, 1994 WL 24257.

In order for a writ of mandamus to issue, a relator must demonstrate that: (1) relator has a clear legal right to the relief prayed for, (2) respondent is under a corresponding legal duty to perform the requested act, and (3) relator has no plain and adequate legal remedy. State ex rel. Glass, Molders, Pottery, Plastics & Allied Workers Internatl. Union, Local 333, AFL-CIO, CLC v. State Emp. Relations Bd. (1993), 66 Ohio St.3d 157, 158, 609 N.E.2d 1266, 1267. In order to obtain a writ of prohibition, relator must prove: (1) that the court or officer against whom the writ is sought is about to exercise judicial or quasi-judicial power, (2) that the exercise of that power is unauthorized by law, and (3) that denying a writ will result in injury for which no other adequate remedy exists in the ordinary course of law. State ex rel. Ruessman v. Flanagan (1992), 65 Ohio St.3d 464, 465, 605 N.E.2d 31, 33.

While neither mandamus nor prohibition may be employed as a substitute for appeal from an interlocutory order, an appeal is inadequate if not complete in its nature, beneficial and speedy. See, e.g., State ex rel. Horwitz v. Cuyahoga Cty. Court of Common Pleas, Probate Div. (1992), 65 Ohio St.3d 323, 328, 603 N.E.2d 1005, 1009, citing, inter alia, State ex rel. Daggett v. Gessaman (1973), 34 Ohio St.2d 55, 63 O.O.2d 88, 295 N.E.2d 659, paragraph three of the syllabus, and State ex rel. Liberty Mills, Inc. v. Locker (1986), 22 Ohio St.3d 102, 104, 22 OBR 136, 137, 488 N.E.2d 883, 885-886.

In initially considering whether an order granting a motion to disqualify counsel in a criminal case constitutes an interlocutory order, we have previously held that the granting of a motion to disqualify counsel in a civil action is a final appealable order pursuant to R.C. 2505.02. Russell v. Mercy Hosp. (1984), 15 Ohio St.3d 37, 15 OBR 136, 472 N.E.2d 695, syllabus. Russell applied the balancing test set forth in Amato v. Gen. Motors Corp. (1981), 67 Ohio St.2d 253, 21 O.O.3d 158, 423 N.E.2d 452, to determine if the order was made in a special proceeding. This court emphasized in Russell that an order disqualifying counsel in a civil case could not be effectively reviewed after final judgment. 15 Ohio St.3d at 39-40, 15 OBR at 138, 472 N.E.2d at 697. In a subsequent case, this court stated in dictum that "it would appear that the legitimate interest implicated, i.e., the right to counsel of one's choice, would compel a similar standard in a criminal context." State v. Murphy (1990), 49 Ohio St.3d 293, 294, 551 N.E.2d 1292, 1294, fn. 1.

However, in Polikoff v. Adam (1993), 67 Ohio St.3d 100, 616 N.E.2d 213, syllabus, we overruled Amato and held that orders that are entered in actions that are recognized at common law or in equity and were not specially created by statute are not orders entered in special proceedings pursuant to R.C. 2505.02. Pursuant to Polikoff, it is apparent that the pretrial order granting a disqualification motion in a criminal case is not a final appealable order. But, cf., Stevens v. Grandview Hosp. & Med. Ctr. (Oct. 20, 1993), Montgomery App. No. 14042, unreported, 1993 WL 420127 (despite Polikoff, Russell remains valid).

In that an immediate appeal from the order disqualifying appellant's counsel of choice is not available, the court must determine whether an appeal following a judgment of conviction and sentence is an adequate remedy so as to preclude the requested extraordinary relief. We have recently held that while a decision of a trial court denying a motion to dismiss on the ground of double jeopardy is not a final appealable order, relief through any extraordinary writ is also precluded since an appeal at the conclusion of the trial court proceedings is an adequate remedy in the ordinary course of law. Wenzel v. Enright (1993), 68 Ohio St.3d 63, 66, 623 N.E.2d 69, 71-72. Similarly, appeal is an adequate remedy here. An appeal following conviction and sentence would be neither impractical nor ineffective since any error in granting the motion would, in certain circumstances, be presumptively prejudicial. Flanagan v. United States (1984), 465 U.S. 259, 268, 104 S.Ct. 1051, 1056, 79 L.Ed.2d 288, 296. This court recognized and distinguished granting motions to disqualify counsel in criminal and civil cases in Russell, 15 Ohio St.3d at 42-43, 15...