CINSEREE JOHNSON, Relator, - vs - GEAUGA COUNTY COURT OF COMMON PLEAS, Respondent.
CASE NO. 2014-G-3206
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY, OHIO
2015-Ohio-210
2015-Ohio-210
THOMAS R. WRIGHT, J.
Original Action for a Writ of Prohibition. Judgment: Petition dismissed.
James R. Flaiz, Geauga County Prosecutor, and Rebecca F. Schlag, Assistant Prosecutor, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For Respondent).
OPINION
THOMAS R. WRIGHT, J.,
{¶1} Relator, Cinseree Johnson, moves this court for leave, as a designated vexatious litigator, to maintain an original action in prohibition against respondent, the Geauga County Court of Common Pleas. As the primary basis for her petition, relator asserts that respondent must be enjoined from exercising jurisdiction in the underlying criminal case because it lacks territorial jurisdiction over the alleged crimes. According to her, respondent has no authority to go forward because, if she committed any crimes,
{¶2} As an initial point, the dissenting opinion asserts that a sentencing judgment has been issued in the underlying criminal action, thereby rendering the merits of relator‘s prohibition petition moot. However, if such a judgment does exist, a copy of it has not been introduced into the record of this proceeding. Specifically, respondents have not moved to dismiss this case on the grounds of mootness, and attached a certified copy of the purported judgment to the motion.
{¶3} It is important to note that this proceeding is not a direct appeal, but instead is an original action in prohibition. In such an action, this court is not engaging in appellate review, but is acting as a trial court. In turn, as a trial court, the scope of our ability to take judicial notice is limited:
{¶4} “‘A trial court may not take judicial notice of prior proceedings in the court, but may only take judicial notice of prior proceedings in the immediate case.’ Diversified Mortgage Investors, Inc. v. Athens Cty. Bd. of Revision (1982), 7 Ohio App.3d 157, 159, * * *. See, also, D & B Immobilization Corp. v. Dues (1997), 122 Ohio App.3d 50, 53, * * *; In re Knotts (1996), 109 Ohio App.3d 267, 271, * * *; Woodman v. Tubbs Jones (1995), 103 Ohio App.3d 577, 580, * * *; State v. Velez (1991), 72 Ohio App.3d 836, 838, * * *; Kiester v. Ehler (1964), 9 Ohio App.3d 52, 56, * * *; Burke v. McKee (1928), 30 Ohio App. 236, 238, * * *. ‘The rationale for this holding is that, if a trial court takes notice of a prior proceeding, the appellate court cannot review whether the trial court correctly interpreted the prior case because the record of the prior case is not before the appellate court.’ Dues, supra, at 53. See Deli Table, Inc. v. Great Lakes Mall (Dec. 31, 1996), Lake App. No. 95-L-012, 1996 Ohio App. LEXIS 5930, at 13; Phillips v. Rayburn (1996), 113 Ohio App.3d 374, 379, 1996 Ohio App. LEXIS 570.” State v. Blaine, 4th Dist. Highland No. 03CA9, 2004-Ohio-1241, ¶17.
{¶5} Even if the separate prior case was heard by the identical trial court, that court cannot take judicial notice of any determination made in the separate case. Rather, any detail about the separate case can only be established through the submission of evidence. In re Pyle, 7th Dist. Belmont No. 91-B-27, 1992 Ohio App. LEXIS 2263, *3 (May 6, 1992).
{¶6} Given that the criminal action against relator is a separate case from this original action, this court cannot take judicial notice of any new decisions in the criminal case. In the absence of any evidence from the parties regarding new proceedings in the criminal case, the scope of our review is limited to the allegations in relator‘s prohibition petition. Thus, we will address the merits of relator‘s motion for leave to proceed.
{¶7} “As a general proposition, a writ of prohibition will be issued only when the relator can demonstrate that: (1) a lower court or judicial officer is preparing to exercise its judicial authority in a matter; (2) the proposed use of that authority is not permissible under the law; and (3) there is no alternative legal remedy the relator could employ to achieve the identical results. State ex rel. The Leatherworks Partnership v. Stuard, 11th Dist. No. 2002-T-0017, 2002-Ohio-6477, at ¶15. As to the second and third elements for the writ, this court has emphasized that the absence of an adequate legal remedy is not necessary when the lack of judicial authority to act is patent and unambiguous; i.e., if the lack of jurisdiction is clear, the writ will lie upon proof of the first two elements only. See State ex rel. Biros v. Logan, 11th Dist. No. 2003-T-0016, 2003-Ohio-5425, at ¶11. However, if the lack of jurisdiction is not patent and unambiguous, the fact that a party
{¶8} As to the standard to be applied in determining whether the alleged lack of jurisdiction is patent and unambiguous:
{¶9} “‘* * * [I]f there is no set of facts under which a trial court or judge could have jurisdiction over a particular case, the alleged jurisdictional defect will always be considered patent and unambiguous. On the other hand, if the court or judge generally has subject matter jurisdiction over the type of case in question and his authority to hear that action will depend on the specific facts before him, the jurisdictional defect is not obvious and the court/judge should be allowed to decide the jurisdictional issue.’ State ex rel. The Leatherworks Partnership v. Stuard, 11th Dist. No. 2002-T-0017, 2002-Ohio-6477, at ¶19.” McGhan v. Vettel, 11th Dist. Ashtabula No. 2008-A-0036, 2008-Ohio-6063, ¶52.
{¶10} In her prohibition petition, relator alleges that she was charged and tried on two fifth-degree felonies. Given that a common pleas court has original jurisdiction over all felony cases, see State v. Hobbs, 9th Dist Summit No. 25379, 2011-Ohio-3192, ¶25, respondent has general jurisdiction over the subject matter of the underlying case. Furthermore, the determination of whether respondent has territorial jurisdiction over the
{¶11} As a separate basis, relator asserts that respondent does not have personal jurisdiction over her because she is a resident of Cuyahoga County, not Geauga County. However, a common pleas court‘s acquisition of personal jurisdiction over a criminal defendant does not depend upon the defendant‘s county of residence; instead, personal jurisdiction exists when the defendant has been properly served with the indictment. See Pishok v. Kelly, 11th Dist. Trumbull No. 2008-T-0093, 2009-Ohio-287, ¶15. Thus, like relator‘s “territorial jurisdiction” allegation, her “personal jurisdiction” allegation is legally insufficient to state a viable claim for a writ of prohibition. To this extent, her entire prohibition petition is subject to dismissal under
{¶12} After a person has been designated a vexatious litigator, she cannot institute new proceedings before an appellate court unless that court is satisfied that there are reasonable grounds for the new proceeding and no abuse of process will take place if the matter goes forward. Karnofel v. Girard Police Dept., 11th Dist. Trumbull No. 2013-T-0093, 2013-Ohio-5270, ¶8, quoting
TIMOTHY P. CANNON, P.J., concurs,
COLLEEN MARY O‘TOOLE, J., dissents with a Dissenting Opinion.
CINSEREE JOHNSON, Relator, - vs - GEAUGA COUNTY COURT OF COMMON PLEAS, Respondent.
CASE NO. 2014-G-3206
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY, OHIO
COLLEEN MARY O‘TOOLE, J.
{¶13} The following eight cases have been filed by Cinseree Johnson and are currently pending in this court: Johnson v. Geauga County Court of Common Pleas, 11th Dist. Geauga No. 2014-G-3206 (writ of prohibition); Johnson v. Summit County Court of Common Pleas, Psycho Diagnostic Clinic, et al., 11th Dist. Geauga No. 2014-G-3207 (writ of prohibition); State v. Johnson, 11th Dist. Geauga No. 2014-G-3215 (delayed appeal and notice of voluntary dismissal); State v. Johnson, 11th Dist. Geauga No. 2014-G-3219 (appeal); State v. Johnson, 11th Dist. Geauga No. 2014-G-3223 (appeal); State v. Johnson, 11th Dist. Geauga No. 2014-G-3229 (appeal); State v. Johnson, 11th Dist. Geauga No. 2014-G-3230 (appeal); and, State v. Johnson, 11th Dist. Geauga No. 2014-G-3231 (appeal). All relate to the same underlying criminal action, State v. Johnson, Geauga C.P. No. 12C000142. Ms. Johnson requests various, and often conflicting, relief from this court. All were filed before the trial court sentenced her.
{¶14} The majority denies the petitions for writs finding Ms. Johnson cannot meet the standards for obtaining leave to file the petitions. It dismisses the appeals because appellant is a vexatious litigator, and has not sought leave of this court to appeal.
{¶15} I am aware that the courts of Ohio have held that once a person is designated a vexatious litigator, he or she must seek leave of court to pursue any action in a court of appeals, even in the criminal setting. See, e.g., Baumgartner v. Duffey, 121 Ohio St.3d 356, 2009-Ohio-1218, ¶3. I respectfully question this position. The
{¶16} As the majority notes the trial court filed its judgment entry of sentence December 8, 2014. This is a final appealable order. Consequently, I would dismiss the petitions for writs as moot, accept the various appeals as prematurely filed under
{¶17} I respectfully dissent.