State v. McCall
| Decision Date | 11 December 2020 |
| Docket Number | No. 110125,110125 |
| Citation | 2020 Ohio 6747 |
| Parties | STATE OF OHIO, EX REL., JOHN P. CORNELY, Relator, v. JUDGE SHELIA TURNER MCCALL, Respondent. |
| Court | Ohio Court of Appeals |
Writ of Prohibition
Appearances:
Jay F. Crook, Attorney at Law, LLC, and Jay F. Crook, for relator.
EILEEN T. GALLAGHER, A.J.:
{¶ 1} Relator, John P. Cornely, seeks a writ of prohibition to prevent respondent, Judge Shelia Turner McCall, from enforcing terms of community control imposed on Cornely in Cleveland M.C. No. 2018 CRB 017558. Cornely argues that there is no final, appealable order sentencing him in this case, so the respondent does not have jurisdiction to enforce a no-contact order that is a part of his community control. Because Cornely cannot prevail on the facts alleged in the complaint, and his request for relief is moot, his request for a writ of prohibition is sua sponte dismissed.
{¶ 2} Cornely filed a complaint for writ of prohibition on December 2, 2020. There he alleged that he was convicted of domestic violence in the aforementioned case, over which respondent presided. He asserts that on February 19, 2019, a sentencing entry was issued, imposing community control. The docket in that case indicates that a no-contact order was issued as a part of community control to remain in effect until Cornely completed parenting classes and the Domestic Intervention Education Training ("DIET") program.1
{¶ 3} On February 28, 2020, he filed a notice of appeal with this court, Cleveland v. Cornely, 8th Dist. Cuyahoga No. 109556, which remains pending. During the pendency of this appeal, he filed a motion for a stay pending appeal with the trial court. Respondent did not timely rule on the motion, and Cornely filed acomplaint for writ of procedendo with this court. State ex rel. Cornely v. McCall, 8th Dist. Cuyahoga No. 109832, 2020-Ohio-4384. This court ultimately issued a writ, directing respondent to rule on the pending motion for stay. Id. Cornely states respondent denied the motion on September 16, 2020.2 He then sought a stay with this court, which was also denied.
{¶ 4} Also during the pendency of the appeal, a review of the journal entry of sentence caused this court to remand the case to respondent for the issuance of a nunc pro tunc entry because the journal entry lacked the fact of conviction, an element required by the Supreme Court of Ohio's decisions in State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163; State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142. After the court issued an order extending the due date for the return of the record from respondent, the record was to be returned to this court by December 7, 2020.
{¶ 5} The complaint was filed on December 2, 2020. On December 1, 2020, a notation on the docket in Cornely's appeal indicates that the supplemental record was received by this court in compliance with the September 18, 2020 and November 6, 2020 orders.3
{¶ 6} The necessary elements a relator must establish, by clear and convincing evidence, in order for a writ of prohibition to issue are: (1) that the respondent is about to exercise judicial power; (2) the exercise of such power is unauthorized by law; and (3) the relator possesses no other adequate remedy in the ordinary course of the law. State ex rel. Largent v. Fisher, 43 Ohio St.3d 160, 540 N.E.2d 239 (1989). However, where there is a patent and unambiguous lack of jurisdiction, a writ may issue without regard for other remedies a relator may have. State ex rel. Tilford v. Crush, 39 Ohio St.3d 174, 529 N.E.2d 1245 (1988).
{¶ 7} The Supreme Court of Ohio has recently reiterated that "with few exceptions, 'a writ of prohibition "tests and determines 'solely and only' the subject matter jurisdiction" of the lower court.'" State ex rel. Thomas v. McGinty, Slip Opinion No. 2020-Ohio-5452, ¶ 26, quoting State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, 73, 701 N.E.2d 1002 (1998), quoting State ex rel. Eaton Corp. v. Lancaster, 40 Ohio St.3d 404, 409, 534 N.E.2d 46 (1988), quoting State ex rel. Staton v. Franklin Cty. Common Pleas Court, 5 Ohio St.2d 17, 21, 213 N.E.2d 164 (1965). "'In the absence of a patent and unambiguous lack of jurisdiction, a court having general subject-matter jurisdiction can determine its own jurisdiction, and a party contesting that jurisdiction has an adequate remedy by appeal.'" Ohio High School Athletic Assn. v. Ruehlman, 157 Ohio St.3d 296, 2019-Ohio-2845, 136 N.E.3d 436, ¶ 6, quoting State ex rel. Plant v. Cosgrove, 119 Ohio St.3d 264, 2008-Ohio-3838, 893 N.E.2d 485, ¶ 5. A writ of prohibition may not be used as a substitute foran appeal, or to correct an error in judgment. State ex rel. Campus Health Servs. v. Russo, 8th Dist. Cuyahoga No. 110003, 2020-Ohio-5436, ¶ 6, citing State ex rel. Sparto v. Juvenile Court of Darke Cty., 153 Ohio St. 64, 90 N.E.2d 598 (1950). Prohibition must also be employed with caution. State ex rel. Merion v. Tuscarawas Cty. Court of Common Pleas, 137 Ohio St. 273, 28 N.E.2d 641 (1940).
{¶ 8} A court may sua sponte dismiss a complaint seeking a writ where the complaint is frivolous or the relator obviously cannot prevail on the facts alleged in the complaint. State ex rel. Edwards v. Toledo City School Dist. Bd. of Edn., 72 Ohio St.3d 106, 108, 647 N.E.2d 799 (1995). Such a dismissal is governed by the standard for a motion to dismiss for failure to state a claim under Civ.R. 12(B)(6). Id. Therefore, this court must presume as true all factual allegations made in the complaint and we must draw all reasonable inferences in favor of the relator. Id. "Dismissal [is] appropriate if after presuming the truth of all material factual allegations of [relators'] petition and making all reasonable inferences in their favor, it appeared beyond doubt that they could prove no set of facts entitling them to the requested extraordinary relief in prohibition." State ex rel. Scott v. Cleveland, 112 Ohio St.3d 324, 2006-Ohio-6573, 859 N.E.2d 923, ¶ 14, citing State ex rel. Brady v. Pianka, 106 Ohio St.3d 147, 2005-Ohio-4105, 832 N.E.2d 1202, ¶ 6.
{¶ 9} Here, Cornely claims that respondent lacks jurisdiction to continue to enforce provisions of his community control because respondent has not issued a final, appealable order in his criminal case. Even though he seeks "urgent treatment" in his complaint, Cornely has not complied with Loc.App.R. 45(D)(2) byfiling an application for alternative writ for expedited disposition. Further, Cornely has not attached any of the journal entries or dockets of cases he relies on to assert that there is no final, appealable order in his criminal case. Cornely only quotes journal entries from his appellate case. He claims that an order issued September 17, 2020, in Cornely, 8th Dist. Cuyahoga No. 109556, finding that there is a technical error with the journal entry of sentence because the trial court did not include the fact of conviction in the sentencing entry, demonstrates that there is no final order in his criminal case.
{¶ 10} In that order, this court remanded the case to the trial court for the issuance of a nunc pro tunc entry to include the fact of conviction in the journal entry. Cornely's complaint further states that respondent failed to comply with this court's initial remand order, and the remand was extended on November 6, 2020.
{¶ 11} When we examine the journal entry that Cornely relies on for the proposition that there is no final order in his criminal case, it becomes clear that this does not provide a source of authority for this assertion.
{¶ 12} The Supreme Court of Ohio has examined the requirements for a final appealable order in a criminal case pursuant to Crim.R. 32(C). Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163; Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142. In Baker, the court outlined the necessary elements of a sentencing entry: "A judgment of conviction is a final appealable order under R.C. 2505.02 when it sets forth (1) the guilty plea, the jury verdict, or the finding of the court upon which the conviction is based; (2) the sentence; (3) the signature of thejudge; and (4) entry on the journal by the clerk of court." Baker at the syllabus. These elements are required to be in a single document to constitute a final, appealable order. Id. at ¶ 19. These requirements were later modified and explained by the court in Lester. Lester at paragraph one of the syllabus.
{¶ 13} There, the court was faced with a purely technical omission of the fact of conviction from a sentencing entry that otherwise complied with Crim.R. 32(C). The court determined that a nunc pro tunc entry journalized to correct the technical omission of the fact of conviction from a sentencing entry did not result in a new final, appealable order. In so holding, the Lester court found that such an omission, a matter of form rather than substance, still resulted in a final, appealable order. Id. at ¶ 12. A trial court could correct such technical omissions by issuing a nunc pro tunc order. Id. at ¶ 20.
{¶ 14} At the same time, the Lester court recognized that a defendant was entitled to a journal entry that fully complied with Crim.R. 32(C). So, a defendant could motion the court for a corrected entry at any time, and the trial court could correct this error through a nunc pro tunc entry. Id. at ¶ 16. But, the fact that a defendant could request a complying order does not render the original order incapable of invoking appellate jurisdiction. Id.
{¶ 15} The order of this court that Cornely cites to in his appeal, provides:
In City of Cleveland v. John [Cornely], Cleveland Municipal Court Case No. 2018 CRB 017558, [Cornely] was charged with one count of domestic violence and two counts of endangering children. The court's January 22, 2019 order found him guilty of domestic...
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