State ex rel. Spirko v. Judges of Court of Appeals, Third Appellate Dist., 85-1784

• Decision Date: 26 November 1986
• Docket Number: No. 85-1784,85-1784
• Parties: , 27 O.B.R. 432 The STATE, ex rel. SPIRKO, v. JUDGES OF the COURT OF APPEALS, THIRD APPELLATE DISTRICT, et al.
• Court: Ohio Supreme Court

Page 13

27 Ohio St.3d 13

501 N.E.2d 625, 27 O.B.R. 432

The STATE, ex rel. SPIRKO, v. JUDGES OF the COURT OF APPEALS, THIRD APPELLATE DISTRICT, et al.

No. 85-1784.

Supreme Court of Ohio.

Nov. 26, 1986.

This action in mandamus originates in this court.

The respondents are Judges J. Thomas Guernsey, Ralph D. Cole, Jr., and Edgar L. Miller, all currently serving on the Court of Appeals of Ohio, Third Appellate District, and Arlene R. Keysor, Clerk of Courts of Van Wert County.

The relator, John G. Spirko, Jr., is a defendant in a capital murder proceeding. He was convicted in the Court of Common Pleas of Van Wert County and sentenced to death on September 17, 1984.

Since Ohio law provides for appeals as of right in capital cases to both the court of appeals and this court (R.C. 2929.05), a review of relator's conviction and sentence is now pending in the court of appeals.

Contemporaneously with filing the appeal, relator's counsel requested from the court of common pleas a complete record, including transcripts of the arraignment, all pretrial motions, hearings on those motions, voir dire, opening statements, evidence, final arguments, instructions to the jury, and all motions made during and after trial. The trial court provided most of the record but overruled relator's motion for clarification which requested production of certain transcripts which were excluded.

Relator's attorney then filed a motion with the court of appeals for supplementation of the record of those parts which had been withheld by the court of common pleas. Some of the missing transcripts were then provided by the court reporter. On October 3, 1985, counsel for relator entered a second motion before the court of appeals for supplementation of the record, specifically requesting all nontranscribed pretrial hearings, including the arraignment. By order of the court, relator's attorney itemized the various hearings for which transcripts were requested. The court of appeals subsequently docketed an entry which read in relevant part as follows:

"Upon consideration the Court find[s] that it appearing that the pretrial hearing occurring on September 21, 1983 on rules governing the conduct of the trial, etc., having possible pertinent relation to the appeal, it is ORDERED that the record be supplemented with a transcription of that pretrial hearing.

"The Court further find[s], it appearing that the appellant has made an insufficient showing of the pertinency of the arraignment occuring on February 27, 1983 and the hearings on motions occurring on November 9, 1983, December 19, 1983, February 8, 1984, March 13, 1984, April 23, 1984, May 15, 1984, June 1, 1984, and June 18, 1984 to any claims of error made on the appeal, it is ORDERED that the motion as it pertains to said arraignment and said hearings should be, and the same hereby is, OVERRULED."

Relator thereafter commenced the present action in mandamus on November 18, 1985. Respondent Keysor requested, and was granted, three extensions of time in which to file an answer to the complaint. On January 23 of this year, she moved to dismiss the action. That motion was overruled by this court, and a new date of June 11, 1986 was set for Keysor's answer. ¹ The three judges of the court of appeals have never responded in any way to this proceeding.

Acting under Civ.R. 55, relator has moved for default judgment. ² We now consider the issues raised by the complaint pursuant to that motion.

Randall M. Dana, Public Defender, and Michael W. Gleespen, Columbus, for relator.

Stephen E. Keister, Pros. Atty., and Charles F. Koch, Van Wert, for respondent Keysor.

PER CURIAM.

A proceeding for a writ of mandamus is a civil action. State ex rel. Wilson v. Preston (1962), 173 Ohio St. 203, 181 N.E.2d 31 , paragraph one of the syllabus. Consequently, mandamus actions are governed by the Ohio Rules of Civil Procedure. Cf. State ex rel. Madison v. Cotner (1981), 66 Ohio St.2d 448, 423 N.E.2d 72 [20 O.O.3d 381]. ³ Relator's motion for default judgment therefore can be entertained by the court under Civ.R. 55.

In a mandamus proceeding to coerce a public official to do an act which allegedly is enjoined upon him by law, all the facts necessary to put him in default must be shown. A relator in mandamus must plead and prove the existence of all requisite facts. Unless a demonstration is made that there is a clear legal duty to perform as requested, a writ of mandamus will not issue. See State ex rel. Temke v. Outcalt (1977), 49 Ohio St.2d 189, 190, 360 N.E.2d 701 .

Where no answer or other appropriate pleading is filed by the respondent, and a motion for default judgment is before the court, the facts as averred in the complaint are accepted as true. State ex rel. Baxter v. Manchester (1944), 143 Ohio St. 48, 53 N.E.2d 912 ; State ex rel. Clifton v. Howard (1929), 121 Ohio St. 607, 608, 172 N.E. 375; see, also, State ex rel. Brown v. Internatl. University (1978), 56 Ohio St.2d 149, 383 N.E.2d 131 ; State ex rel. Wiegel v. Randall (1953), 160 Ohio St. 327, 116 N.E.2d 300 .

The statutes relator emphasizes to impose a duty on the respondents to provide a full transcript for his capital appeal are R.C. 2929.03 and 2929.05. R.C. 2929.03(G) provides:

"Whenever the court or a panel of three judges imposes sentence of death, the clerk of the court in which the judgment is rendered shall deliver the entire record in the case to the appellate court." (Emphasis added.)

Consequently, there is an obvious, clear legal duty--not performed in the present case--upon the clerk to deliver the entire unabridged record to the court of appeals.

R.C. 2929.05 provides a pervasive scheme of review by Ohio's appellate courts in capital cases. The pertinent portion of R.C. 2929.05(A) reads:

"Whenever sentence of death is imposed * * * the court of appeals and the supreme court shall upon appeal review the sentence of death at the same time that they review the other issues in the case. The court of appeals and the supreme court shall review the judgment in the case and the sentence of death imposed by the court or panel of three judges in the same manner that they review other criminal cases, except that they shall review and independently weigh all of the facts and other evidence disclosed in the record in the case and consider the offense and the offender to determine whether the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors in the case, and whether the sentence of death is appropriate. * * * " (Emphasis added.)

R.C. 2929.05 thus places a solemn responsibility on the appellate courts to reweigh the aggravating-mitigating evidence and all other facts and evidence to determine whether death is a fitting punishment. It is clear that a court cannot review all the facts and circumstances of a case if it does not have a complete record from which to conduct such a review.

The court of appeals, in its order, concluded that "the appellant has made an insufficient showing of the pertinency" of some of the requested transcripts. We believe that placing such a burden on a defendant-appellant places unnecessary obstacles in the path to effective appellate scrutiny and that it further is contrary to established precedent in this state. In State v. Arrington (1975), 42 Ohio St.2d 114, 326 N.E.2d 667 , at paragraph four of the syllabus, this court observed that "[o]rdinarily it is assumed that a transcript * * * would be valuable to a defendant without requiring a showing of need tailored to facts of the particular case." At paragraph two of the syllabus, in explicit, unmistakable language, we held: "The burden is on the state to show that a transcript of prior proceedings * * * is not needed for an effective defense or appeal." (Emphasis added.) These principles were followed in State ex rel. Dillard v. Duncan (1976), 45 Ohio St.2d 134, 341 N.E.2d 841 . ⁴ In that case, the indigent defendants in the underlying criminal actions had been convicted of misdemeanors. Despite the state's protests to providing the transcript, this court upheld the ruling that the trial court was required to furnish a record of the proceedings, without charge, to the defendants. If a transcript is necessary to an effective appeal in a misdemeanor case, how much more necessary is it to an effective appeal in a capital case?

Section 16, Article I of the Ohio Constitution provides:

"All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay."

In Thomas v. Mills (1927), 117 Ohio St. 114, 157 N.E. 488, this court had occasion to interpret and apply the foregoing constitutional provision. In that dispute, the warden of the Ohio Penitentiary had refused to allow an attorney to enter the prison for the purpose of conferring with his client. The prisoner was appealing a conviction of first-degree murder. The court found from the record that the attorney had applied for entry only at reasonable times.

Judge Florence E. Allen, author of this court's opinion, framed the issue at 120 with these observations:

"Was Article I, Section 16 of the Constitution of Ohio, violated by the warden's refusal? That section provides that every person shall have justice administered without denial or delay. Surely the right to be represented by counsel in every stage of a criminal proceeding is a right inherent in justice itself, and any person who is denied the right is denied justice."

We think these basic principles also apply in the present case. Just as the right to confer with an attorney "is a right inherent in justice itself," so too is the right to an unabridged transcript. If consultation with one's lawyer is essential to prepare a case for the appellate courts, we believe the availability of a trial record is indispensable for that very same purpose. Without a...