State ex rel. Parker v. Russo

• Decision Date: 30 October 2019
• Docket Number: 2019-0108,Nos. 2019-0032,s. 2019-0032
• Citation: 158 Ohio St.3d 123,140 N.E.3d 602,2019 Ohio 4420
• Parties: The STATE EX REL. PARKER, Appellant, v. RUSSO, Judge, Appellee. Parker Bey, Appellant, v. Harris, Warden, Appellee.
• Court: Ohio Supreme Court

158 Ohio St.3d 123

140 N.E.3d 602

2019 Ohio 4420

The STATE EX REL. PARKER, Appellant,

v.RUSSO, Judge, Appellee.

Parker Bey, Appellant,

v.Harris, Warden,¹ Appellee.

Nos. 2019-0032

2019-0108

Supreme Court of Ohio.

Submitted July 9, 2019

Decided October 30, 2019.

Vincent A. Parker, pro se.

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for appellee Judge Russo.

Dave Yost, Attorney General, and Stephanie L. Watson, Assistant Attorney General, for appellee Warden Harris.

Per Curiam.

{¶ 1} These two appeals, which we consolidate for decision, arise out of the same underlying criminal case. In case No. 2019-0032, appellant, Vincent A. Parker, a.k.a. Vincent El Alan Parker Bey, appeals the denial of his requested writ of mandamus. And in case No. 2019-0108, he appeals the dismissal of his complaint for a writ of habeas corpus. We affirm both judgments.

Criminal-Case Background

{¶ 2} In January 2003, Parker pleaded guilty to murder before a three-judge panel. However, the sentencing entry incorrectly stated that Parker had pleaded guilty to aggravated murder. Parker appealed on March 3, 2003. On April 30, 2003, while Parker's appeal was pending, the presiding judge, appellee Judge Nancy Russo, journalized a nunc pro tunc sentencing entry to clarify that Parker had pleaded guilty to murder, rather than aggravated murder. In 2004, the court of appeals affirmed Parker's murder conviction and sentence. State v. Parker , 8th Dist. Cuyahoga No. 82687, 2004-Ohio-2976, 2004 WL 1277243.

Mandamus Case (No. 2019-0032)

Procedural History

{¶ 3} In September 2018, Parker filed a complaint for a writ of mandamus in the Eighth District Court of Appeals, claiming that the trial court lacked jurisdiction to issue the 2003 nunc pro tunc entry while his direct appeal was pending. He sought an order compelling the trial court to issue a new sentencing entry. In December 2018, the court of appeals granted Judge Russo's motion for summary judgment, holding that Parker's claim was barred by res judicata and that he had an adequate remedy at law. State ex rel. Parker v. Russo , 2018-Ohio-4903, 2018 WL 6433730, ¶ 5. Parker filed a timely appeal.

Analysis

{¶ 4} To be entitled to a writ of mandamus, Parker was required to show (1) a clear legal right to the requested relief, (2) a clear legal duty on Judge Russo's part to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth , 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6.

{¶ 5} "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.’ " Smith v. McBride , 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12, quoting Civ.R. 56(C). We review a decision granting summary judgment de novo. Id.

{¶ 6} On appeal, Parker seeks reversal of the court of appeals' decision granting summary judgment.

Compliance with Civ.R. 56

{¶ 7} Parker claims that the court of appeals erred in granting summary judgment without giving notice of a non-oral-hearing date and because it relied on evidence that did not comport with Civ.R. 56.

{¶ 8} Parker's notice argument fails because he is apparently relying on a former version of Civ.R. 56(C) that required that a motion for summary judgment "be served at least fourteen days before the time fixed for hearing," 86 Ohio St.3d xc, xciii. Civ.R. 56(C) was amended in July 2015 to remove the reference to a hearing. 142 Ohio St.3d ci, cxvi (staff note). The current version of the rule permits the court to grant a summary-judgment motion upon the completion of briefing and does not require the court to hold an oral or non-oral hearing. Accordingly, this argument is not well-taken.

{¶ 9} Parker's next argument—that the appeals court relied on improper evidence to grant summary judgment—has merit, but it does not require reversal of the court of appeals' judgment. In her motion for summary judgment, Judge Russo argued that Parker's arguments were barred by res judicata. In support, she attached time-stamped copies of documents relating to Supreme Court case No. 2018-0147, a prior mandamus action that Parker had filed in this court, including Parker's complaint, the respondent's motion to dismiss, the respondent's notice of judicial action (with exhibits), Parker's memorandum in opposition to the respondent's motion to dismiss, and this court's announcement of the dismissal of the action. Judge Russo did not attach an affidavit authenticating the attachments.

{¶ 10} Because granting summary judgment under Civ.R. 56(C) terminates litigation without a trial on the merits, "[t]he requirements of the rule must be strictly enforced." Murphy v. Reynoldsburg , 65 Ohio St.3d 356, 360, 604 N.E.2d 138 (1992). Civ.R. 56(C) sets forth the types of evidence that may be considered in granting a motion for summary judgment—namely, "pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact." When deciding a summary-judgment motion, it is generally error for a court to rely on other types of evidence that has not been authenticated by way of an attached affidavit. State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn. , 72 Ohio St.3d 94, 97, 647 N.E.2d 788 (1995) ; Rogoff v. King , 91 Ohio App.3d 438, 446, 632 N.E.2d 977 (8th Dist.1993) ("The proper procedure for the introduction of evidentiary matter not specifically authorized by Civ.R. 56(C) is to incorporate the material by reference into a properly framed affidavit").

{¶ 11} The only document relating to Supreme Court case No. 2018-0147 that Judge Russo attached to her summary-judgment motion and that is arguably a type of evidence listed in Civ.R. 56(C) is Parker's complaint; it is a "pleading" under Civ.R. 7(A). In that complaint, Parker asserted the same claim that he asserts in this case—that Judge Russo lacked jurisdiction to issue a nunc pro tunc entry after his notice of appeal was filed. But a complaint alone does not prove that Parker's claim is barred, because res judicata requires a final judgment on the merits. State ex rel. Jackson v. Ambrose , 151 Ohio St.3d 536, 2017-Ohio-8784, 90 N.E.3d 922, ¶ 13. None of the other documents attached to Judge Russo's summary-judgment motion are incorporated by reference in an affidavit or certified as required by Civ.R. 56(E). "An unauthenticated document, including uncertified court records, may not support a motion for summary judgment." Trebnick Sys., Inc. v. Chalmers , 12th Dist. Warren No. CA2012-10-097, 2013-Ohio-2642, 2013 WL 3227279, ¶ 15 ; accord Nicely v. Kline , 10th Dist. Franklin No. 05AP-825, 2006-Ohio-951, 2006 WL 496004, ¶ 21. Therefore, the court of appeals erred when it relied on the evidence attached to Judge Russo's motion to grant summary judgment based on res judicata.

{¶ 12} Parker is not entitled to reversal on this basis, however, because he possessed an adequate remedy at law to correct an entry that he claims does not comply with Crim.R. 32(C). Parker admits that a "trial court has the jurisdiction to correct [its] sentencing entries at any time pursuant to criminal rule 36." Crim.R. 36 states that "[c]lerical mistakes in judgments, orders, or other parts of the record, and errors in the record arising from oversight or omission, may be corrected by the court at any time." Parker even lists the ways that he has sought to correct the sentencing entry, including filing motions for clarification, to impose a valid sentence, and to issue a revised journal entry. But he also could have appealed the denials of his various motions to correct the sentencing entry. See State ex rel. Daniels v. Russo , 156 Ohio St.3d 143, 2018-Ohio-5194, 123 N.E.3d 1011, ¶ 11-12 (mandamus relief denied because the relator could have appealed the denial of his motion for a new sentencing entry that complies with Crim.R. 32(C) ); State ex rel. Henley v. Langer , 156 Ohio St.3d 149, 2018-Ohio-5204, 123 N.E.3d 1016, ¶ 6 (same).

Jurisdiction to issue a nunc pro tunc entry after appeal was filed

{¶ 13} Parker contends that Judge Russo lacked jurisdiction to issue a nunc pro tunc entry to correct a clerical mistake because Parker had already appealed.

{¶ 14} Crim.R. 32(C) requires that a judgment of conviction "set forth the fact of conviction and the sentence." "This court has consistently regarded Crim.R. 32(C) errors as clerical mistakes subject to nunc pro tunc correction." State ex rel. Snead v. Ferenc , 138 Ohio St.3d 136, 2014-Ohio-43, 4 N.E.3d 1013, ¶ 10. Here, although Parker pleaded guilty to murder, his initial sentencing entry incorrectly stated that he had been convicted of aggravated murder. Parker does not contend that a trial court may not use a nunc pro tunc entry to correct this type of error.

{¶ 15} Instead, Parker contends that Judge Russo lacked jurisdiction to correct the clerical mistake because he had already appealed. We need not reach that issue, because Parker had an adequate remedy at law to raise this argument in his direct appeal, in which the court of appeals considered both the original sentencing entry and the nunc pro tunc entry. See State v. Parker , 2004-Ohio-2976, at ¶ 8, 33.

Motion regarding certification of the record

{¶ 16} Finally, Parker filed a motion claiming that the county clerk of courts failed to submit a certified copy of the criminal appearance and docket. The record, however, includes a signed certification, an index, and a copy of the docket. Parker's motion is denied.

Habeas Case (No. 2019-0108)

Procedural History

{¶ 17} In October 2018, Parker filed a complaint for a writ of habeas corpus in the Eleventh District Court of Appeals, naming Charmaine Bracy, then warden of the Trumbull Correctional Institution, as the respondent. Parker argued that the three-judge panel lacked...