2012 Ohio 4068
Ohio Ct. App.2012Background
- Timothy Newell filed a mandamus action against Judge Daniel Gaul to obtain final, appealable Crim.R. 32(C) orders in underlying cases State v. Newell, Nos. CR-40130 and CR-40174.
- In 1978 Newell was convicted of kidnapping, multiple rapes, aggravated robbery, gross sexual imposition, and felonious sexual penetration with consecutive sentences.
- This court previously modified the kidnapping-related convictions in 1980, vacating those counts and affirming the remainder; a mandate directed the trial court to carry out the modification.
- In 1995 Newell filed another mandamus action to compel the corrected sentence to be recorded and forwarded to the Ohio Adult Parole Authority; the trial court sought summary judgment on mootness grounds and the appellate court granted it.
- In 1996 the trial court issued a journal entry vacating the kidnapping sentences and listing remaining counts, to be served consecutively, but the order did not reiterate conviction details or Crim.R. 32(C) finality.
- In 2012 Newell sought a final, appealable Crim.R. 32(C) order again; the trial court denied, and Newell filed this mandamus action seeking to compel the June 26, 1996 order to comply with Crim.R. 32(C).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mandamus is proper to compel a final Crim.R. 32(C) order. | Newell argues the 1996 order must be final and appealable under Crim.R. 32(C). | Gaul contends mandamus is improper where the order is not a final conviction and discretionary relief applies. | No; mandamus does not lie to compel a nonfinal or discretionary act. |
| Whether Newell had an adequate remedy at law to challenge the 1996 order. | Newell asserts he could appeal the 1996 order if properly final. | Respondent contends the remedy at law existed via appeal; mandamus unavailable where adequate remedy exists. | Adequate remedy at law existed; mandamus denied. |
| Whether res judicata bars the mandamus action. | Newell seeks further relief not previously foreclosed by prior actions. | Because Newell could have raised issues in 1995 and appealed, the claim is barred by res judicata. | Res judicata applies; mandamus denied. |
| Whether the June 26, 1996 order constitutes a judgment of conviction subject to Crim.R. 32(C). | Order fulfilled mandate and corrected sentence; should be appealable. | Order was procedural to satisfy a mandate and not a new judgment of conviction. | Not a judgment of conviction under Crim.R. 32(C); not subject to a new appeal. |
Key Cases Cited
- State v. Baker, 119 Ohio St.3d 197 (2008-Ohio-3330) (only judgments of convictions must comply with Crim.R. 32(C) to be final)
- State v. Lester, 130 Ohio St.3d 303 (2011-Ohio-5204) (nunc pro tunc entries for Crim.R. 32(C) compliance are not new final orders)
- State v. Reddick, 72 Ohio St.3d 88 (1995-Ohio-249) (mandamus not used to invite endless new appeals; vain acts barred)
- State ex rel. Pressley v. Indus. Comm. of Ohio, 11 Ohio St.2d 141 (1967) (court exercises discretion in mandamus considering various case-specific factors)
- State ex rel. Keenan v. Calabrese, 69 Ohio St.3d 176 (1994) (mandamus is not a substitute for appeal)
- State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118 (1987) (adequate remedy at law precludes mandamus)
- State ex rel. Tran v. McGrath, 78 Ohio St.3d 45 (1997-Ohio-245) (same; adequate remedy precludes mandamus)