State ex rel. Yeager v. McCarty

• Decision Date: 21 July 2021
• Docket Number: C. A. 29626
• Parties: STATE OF OHIO EX REL. ANDRE YEAGER Relator v. HON. ALISON MCCARTY, JUDGE, ET AL. Respondents
• Court: Ohio Court of Appeals

2021-Ohio-2492

STATE OF OHIO EX REL. ANDRE YEAGER Relator v. HON. ALISON MCCARTY, JUDGE, ET AL. Respondents

C. A. No. 29626

Court of Appeals of Ohio, Ninth District, Summit

July 21, 2021

ORIGINAL ACTION IN MANDAMUS AND PROHIBITION

ANDRE YEAGER, Pro se, Relator.

SHERRI BEVAN WALSH, Prosecuting Attorney, and COLLEEN SIMS Assistant Prosecuting Attorney, for Respondents.

PER CURIAM.

{¶1} Relator, Andre Yeager, has petitioned this Court for writs of mandamus and prohibition to compel Respondents, Judge Alison McCarty and Judge Richard Reinbold, to vacate and stop enforcement of two journal entries. Respondents have moved to dismiss pursuant to Civ.R. 12(B)(6). Mr. Yeager responded to the motion to dismiss. For the following reasons, this Court grants the motion to dismiss.

{¶2} When this Court reviews a motion to dismiss under Civ.R 12(B)(6), we must generally presume that all of the factual allegations in the petition are true and make all reasonable inferences in favor of the nonmoving party. State ex rel Seikbert v. Wilkinson, 69 Ohio St.3d 489, 490 (1994). A petition can only be dismissed when, having viewed the complaint in this way, it appears beyond doubt that the relator can prove no set of facts that would entitle him to the relief requested. Goudlock v. Voorhies, 119 Ohio St.3d 389, 2008-Ohio-4787, ¶ 7.

Mr. Yeager's Complaint

{¶3} Mr. Yeager filed a lengthy complaint. Many of the paragraphs repeat the same allegations or conclusions. Because Ohio is a notice-pleading state, a plaintiff is not ordinarily required to plead operative facts with particularity. Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, ¶ 29. Under the Ohio Rules of Civil Procedure, a complaint need only contain "a short and plain statement of the claim showing that the party is entitled to relief." Civ.R. 8(A)(1).

{¶4} Mr. Yeager went beyond a "short and plain statement of the claim" in his complaint. The introduction alone is six pages long, and the entire complaint is well over 300 pages consisting of 745 numbered paragraphs (along with many more that are unnumbered). Notwithstanding the length of the complaint, our focus must be on the facts alleged, not the unsupported conclusions that may be included among factual statements. See, e.g., Newman v. Univ. of Dayton, 2d Dist. Montgomery No. 28815, 2021-Ohio-1609, ¶ 54.

{¶5} A complaint must consist of more than bare assertions of legal conclusions. Copeland v. Summit Cty. Probate Court, 9th Dist. Summit No. 24648, 2009-Ohio-4860, ¶ 10. Allegations must be supported by facts. Conclusions in the complaint that are not supported by factual allegations in the complaint cannot be deemed admitted and are insufficient to withstand a motion to dismiss. State ex rel. Hickman v. Capots, 45 Ohio St.3d 324, 324 (1989); Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 193 (1988).

{¶6} When reviewing the complaint, we may also review the material incorporated into the complaint; it is considered as part of the complaint for purposes of considering a Civ.R. 12(B)(6) motion to dismiss. State ex rel. Edwards v. Toledo City School Dist. Bd of Edn., 72 Ohio St.3d 106, 109 (1995). The attachments serve an important purpose, and a "court is not required to accept allegations in a complaint as true when they are contradicted by documents attached to the complaint." State ex rel. Washington v. D'Apolito, 156 Ohio St.3d 77, 2018-Ohio-5135, ¶ 10. We must exercise our review of the complaint at the motion to dismiss stage with caution because this is not the time to weigh the facts or to reject a relator's allegations as false. Id. at ¶ 11.

{¶7} With this standard in mind, we turn to the complaint.

Brief Background

{¶8} According to the complaint, and attachments, Mr. Yeager was indicted in two criminal cases. He was tried before a jury on both cases at the same time. In March 2017, Judge Reinbold, a retired judge serving by assignment, presided over Mr. Yeager's trial. A jury found Mr. Yeager guilty of various offenses. Immediately after the guilty verdicts were returned, Judge Reinbold orally imposed sentence. On April 12, 2017, two orders were filed that imposed sentence. Those orders were signed by Judge McCarty.

{¶9} In case number CR-2016-07-2429-A, the April 12, 2017 order imposed sentences on Count 1 and Count 6. In case number CR-2016-11-3971, the April 12, 2017 order imposed sentences on Counts 1, 2, 3, and 4.

Complaint and attachments

{¶10} As mentioned above, Mr. Yeager filed a lengthy complaint seeking writs of mandamus and prohibition. He also filed numerous attachments with his complaint:

1. Indictment for case number CR 2016-07-2429 AB,

2. April 12, 2017 journal entry for CR 2016-07-2429A,

3. April 12, 2017 journal entry for CR 2016-11-3971,

4. Letter from Andre Yeager,

5. Andre Yeager affidavit

6. First request for admissions,

7. First request for production of documents,

8. First set of interrogatories, request for production of documents, and request for admission,

9. Andre Yeager affidavit,

10. Andre Yeager affidavit of facts,

11. Andre Yeager affidavit, and

12. Transcript of proceedings.

{¶11} The drafting and organization of Mr. Yeager's complaint makes it difficult to differentiate legal conclusions from facts. Further, Mr. Yeager's allegations are contradicted by other statements in the complaint and, more particularly, the attachments to the complaint. With that in mind, we summarize the allegations contained in Mr. Yeager's complaint and attachments.

{¶12} Mr. Yeager was charged in two criminal cases. According to the indictment and April 12, 2017 journal entries that Mr. Yeager attached to his petition, there were seven counts in case number CR 2016-07-2429. The jury returned guilty verdicts on counts 1 and 6; counts 2 and 7 were dismissed by the court and counts 3, 4, and 5 only alleged crimes against a co-defendant. There were four counts in case number CR 2016-11-3971. The jury returned guilty verdicts on all four counts.

{¶13} The two cases were tried together before visiting Judge Reinbold in March 2017. After the jury returned guilty verdicts, Judge Reinbold proceeded directly to sentencing. Mr. Yeager attached the transcript of his sentencing hearing to his complaint.

{¶14} Four of the counts in CR 2016-11-3971 involved breaking and entering in local businesses. One of those businesses was Novus Eye Care. When the trial court imposed sentences on these four counts, it referred to the names of the businesses related to those counts, but it only mentioned the count number, "Count 6," not Novus Eye Care, when imposing sentence on this count. The transcript reflects, however, that Mr. Yeager reviewed the verdict forms and argued to the trial court about his sentence and referred to "Count 6" and Novus together.

{¶15} Later, on April 12, 2017, the trial court filed two journal entries, one for each case. Those journal entries contained a recitation of the procedural history, the findings of guilt, the sentence imposed, and other findings and advisements.

{¶16} Mr. Yeager's complaint contains eleven enumerated causes of actions. Some of those causes of action are simply labeled, as the first one is, "FIRST CAUSE OF ACTION." Others, however, use more descriptive terms: "THIRD CAUSE OF ACTION VACATE APRIL 12, 2017 JOURNAL ENTRIES." Regardless of whether there is a label or not, the eleven causes of action repeat the same allegations and themes.

Cause of Action

Claims

First Cause of Action

. Correct April 12, 2017 journal entries.

. Clear legal right to be present at sentencing on April 12, 2017.

. Court patently and unambiguously lacked statutory authority to modify sentence on April 12, 2017 without him present.

. Court patently and unambiguously lacked jurisdiction to resentence.

. Clear legal right to have Novus Eye Care conviction vacated because no sentence stated in court.

. Court patently and unambiguously lacked jurisdiction to make findings three weeks after sentencing.

Second Cause of Action

. Court lacked jurisdiction and plain error by imposing consecutive sentences.

. Clear legal right to concurrent sentences

. Clear legal duty to make findings at sentencing hearing on March 21, 2017.

Third Cause of Action

. Vacate April 12, 2017 journal entries.

. Court patently and unambiguously lacked jurisdiction.

. No hearing makes sentence void abinitio.

. Court had clear legal duty to make findings before sentencing.

. Clear legal right to have April 12, 2017 sentence vacated.

. Clear legal right to be present for modification of sentence

. Clear legal right to allocution. . Clear legal right to have sentence vacated.

Fourth Cause of Action

• Sentence for Novus Eye Care count void.

. Sentenced in abstentia on April 12, 2017.

. Clear legal right to be present for sentencing.

. Clear legal duty to prepare accurate journal entry.

. Novus Eye Care sentence should be vacated.

. Sentenced on April 12, 2017, without counsel.

. Sentence was modified on April 12, 2017, so it is void.

Fifth Cause of Action

. Clear legal right to have March 21, 2017 sentence journalized.

. Court has clear legal duty to impose sentence.

. Sentence should be journalized in 30 days, pursuant to Sup.R. 13.

. Clear legal duty to journalize March 21 2017 sentence

. April 12, 2017 journal entries are wrong.

. Novus Eye Care count should be vacated because already sentenced on count 6.

. Concurrent sentences were required.

. Court has a clear legal duty to journalize March 21, 2017 sentence.

. Court has a clear legal duty not to add additional findings.

Sixth Cause of Action

. Due process violation when sentenced outside his presence.

. Court lacked subject matter and personal jurisdiction.

. Court lacked jurisdiction to convict...