602 N.E.2d 1183 | Ohio Ct. App. | 1991
Relator, Christopher Davis, commenced this mandamus action against respondent, Judge Patricia Cleary of the Court of Common Pleas of Cuyahoga County, to compel her to vacate his sentences for various firearm specifications as well as an indefinite sentence. The gravamen of his claim is that the judge did not follow the law of the case doctrine when she resentenced him after this court remanded the case. Judge Cleary has moved to dismiss the mandamus, and in response Davis has moved for summary judgment. For the following reasons, this court grants the judge's motion to dismiss, denies Davis's dispositive motion and dismisses the writ.
This case arises out of Davis's convictions for three counts of aggravated robbery, two counts of kidnapping, two counts of grand theft and one count of felonious assault, all with penalty-enhancing specifications. These convictions were for three separate armed robberies of women awaiting service at drive-through windows of fast food restaurants between October 24, 1987, and December 11, 1987. In the first incident Davis and his accomplice put a gun to Olwen Herold's head while she waited in line and forced their way into her car. They then compelled her to drive away, while they rummaged through her purse looking for a bank card in order to withdraw money from her account. When they discovered she did not have a bank card, they ordered her out of her car and drove away.
In the second incident Davis and his accomplice again forced entry into a car by putting a gun to Sandra Wingfield's neck. This time their victim had a bank withdrawal card, and they forced her to give them $300 from her account. Again they ordered the owner out of her own car and drove away. In the third incident, the accomplice approached the victim's car and threatened her with a gun. When she opened the door to let him in, he pushed the seat forward and the victim accelerated to get away. The accomplice wounded her in the head. The police apprehended Davis and his accomplice shortly after the third incident. At the time of the arrest, the police recovered a gun. *496
At trial Herold and Wingfield positively identified Davis as one of the assailants.1 However, they could not identify the gun confiscated after the third incident as the gun which was used on them. The accomplice testified against Davis because he had entered into a plea bargain in which charges from the first two incidents were nolled in exchange for his testimony. Although Davis presented an alibi defense, the judge found him guilty on each count and all but two of the specifications. Specifically, Count 8 (grand theft of Olwen Herold's car) carried both firearm and violence specifications. On this count the judge found him guilty of the firearm specification, but not guilty on the violence specification.
The trial court sentenced Davis to consecutive terms of ten to twenty-five years' imprisonment for each aggravated robbery conviction, plus three consecutive terms of three years' imprisonment on the attendant gun specifications. The trial court further sentenced him to concurrent terms of ten to twenty-five years on the kidnapping counts and six to fifteen years for felonious assault. The court also imposed indefinite sentences of three to ten years for both counts of grand theft, plus three years for each remaining gun specification.
On appeal, State v. Davis (Dec. 21, 1989), Cuyahoga App. No. 56296, unreported, 1989 WL 155154, this court affirmed Davis's convictions, but reversed some of the sentences, several of which were the gun specifications for counts 3-8. In a previous decision, State v. Gaines (1989),
Additionally, this court ruled that an indefinite sentence for Count 8 was improper. Under R.C.
On March 7, 1990, between the time of the remand and the resentencing, the Ohio Supreme Court issued State v. Murphy
(1990),
Subsequently, Judge Cleary resentenced Davis. Relying uponMurphy, she reimposed the original sentence. She apparently reasoned Murphy essentially "reversed" this court's decision in Davis's appeal and allowed her to reinstate the firearm specifications and the entire original sentence.
Davis now argues that this court issued a clear mandate to the common pleas court to vacate the sentences for the gun specifications and the indefinite sentence. This mandate became final when the state failed to appeal the decision to the Ohio Supreme Court. In other words the decision then became the law of the case. At that time Judge Cleary had no discretion but to follow the mandate, and she exceeded her authority when she relied upon Murphy to reimpose the initial sentence. Therefore, the mandamus should issue because Judge Cleary had a clear legal duty to resentence pursuant to this court's mandate.
Although the courts of Ohio have recently reaffirmed the continued vitality of the law-of-the-case doctrine, they have also consistently noted that intervening decisions of superior courts present an exception to the doctrine. In State ex rel.Potain v. Mathews (1979),
Furthermore, the courts have accepted intervening decisions as providing a proper basis upon which to reconsider appellate mandates. In Svet v. Mayfield (1989),
The requisites for mandamus are well established. Mandamus may issue only if the relator shows (1) he has a clear legal right to the relief requested, (2) the respondent has a clear legal duty to perform the requested act, and (3) there is no plain and adequate remedy in the ordinary course of the law.State ex rel. Ney v. Niehaus (1987),
In the present case mandamus is inappropriate because Davis has not established that Judge Cleary had a clear legal duty to perform the requested act. The Ohio Supreme Court's ruling inMurphy is an intervening decision which places this case in the exception to the law-of-the-case doctrine. Upon remand a court must follow the mandate of a superior court absent extraordinary circumstances. An intervening ruling by the Supreme Court is such a circumstance. The explicit modification of the Gaines decision provided the trial court with a basis to exercise discretion in complying with this court's mandate. Accordingly, there was no clear legal duty, and no corresponding clear legal right, to a sentence exactly following this court's decision in the underlying case.
Moreover, mandamus is also inappropriate because relator has a plain and adequate legal remedy. Repeatedly, the courts have reviewed the law-of-the-case doctrine and the intervening decision exception through the means of appeal. Dougherty v.Torrence (1984),
Accordingly, the respondent's motion to dismiss is granted, the relator's motion for summary judgment is denied, and the writ is dismissed.
Writ dismissed.
MATIA, J., concurs.