State ex rel. Ervin v. Barker
991 N.E.2d 1146
Ohio2013Background
- Levert Ervin was convicted in 2001 of multiple rape counts; convictions and sentences affirmed on direct appeal.
- During trial, prosecution sought and Acting Administrative Judge Boyko granted a motion to take a witness (social worker Ian Lucash) by videotaped deposition because the witness would be unavailable to testify live.
- The videotaped deposition was played at trial and admitted into evidence; Boyko’s written order authorizing the deposition did not appear on the docket.
- More than ten years after conviction, Ervin moved to vacate Boyko’s order, arguing Boyko lacked authority to grant the deposition because the assigned judge was not shown to be unavailable; Judge Barker denied the motion.
- Ervin sought a writ of mandamus from the Eighth District to compel Barker to vacate Boyko’s order, claiming the order was void and that he had no adequate remedy at law; the court dismissed the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Boyko’s order granting videotaped deposition was void | Boyko lacked authority because assigned judge’s unavailability was not shown | Order at most voidable; trial remedy available | Order not void; mandamus denied |
| Whether Ervin lacked an adequate remedy at law | No adequate remedy existed; mandamus required | Ervin had remedies: direct appeal and appeal from denial of motion to vacate | Adequate remedy existed; mandamus unavailable |
Key Cases Cited
- State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55 (2012) (standard for mandamus: clear right, clear duty, no adequate remedy; burden of proof by clear and convincing evidence)
- State v. Ervin, 8th Dist. Cuyahoga No. 80473 (2002) (direct-appeal decision addressing admissibility of Lucash’s deposition testimony)
- State v. Ervin, 98 Ohio St.3d 1412 (2003) (Supreme Court entry noting appeal not accepted)