State ex rel. McKinney v. McKayState ex rel. McKinney v. McKay
Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481-1092 (For Respondent).
PER CURIAM.
{¶1} This matter is before the court pursuant to the petition for a writ of mandamus and/or procedendo filed by relator, Jermaine McKinney, against respondent, Judge W. Wyatt McKay, Judge of the Trumbull County Court of Common Pleas. This court granted an alternative writ, ordering respondent to respond to the petition. Respondent filed a motion to dismiss for failure to state a claim pursuant to
{¶2} On January 6, 2006, the grand jury returned an indictment against relator charging him with two counts of aggravated murder with prior calculation and design of his girlfriend Rebecca Cliburn and her elderly mother Wanda Rollyson (respectively Counts One and Three), with the following specifications оf aggravating circumstances as to each count as set forth in
{¶3} The court‘s judgment on sentence, entered on December 11, 2006, which is the judgment at issue here, stated that on October 11, 2006, relator was tried by a jury, and on November 3, 2006, after due deliberation, was found guilty of Count 2: aggravated murdеr (felony murder of Rebecca) with specifications of aggravating circumstances as set forth in
{¶4} The trial court‘s judgment on sentence further recited that on November 16, 2006, on the state‘s motion, the court dismissed Count Three, murder of Wanda with prior calculation and design, and the attached specifications. The entry further provided that on November 16, 2006, relator was brought into court and gave evidence in mitigation with respect to Count Two and Count Four, felony murder of Rebecca and Wanda, respectively. The judgment recited that, after due deliberation, on November 20, 2006, the jury found and recommended that two sentences of life in prison without parole be imposed on relator.
{¶5} The judgment on sentence further recited that on November 29, 2006, the court held relator‘s sentencing hearing, and that on December 11, 2006, the court sentenced relator to life in prison without parole on Count Two (felony murder of Rebecca); life in prison without parole on Count Four (felony murder of Wanda); ten years on Count Five (aggravated burglary); ten years on Count Six (aggravated
{¶6} Relator appealed his conviction to this court asserting 16 assignments of error, challenging various evidentiary rulings; alleged procedural irregularities; venue; the trial court‘s jury instructions; the alleged ineffectiveness of his trial counsel; the trial court‘s alleged denial of relator‘s right to represent himself; and the weight оf the evidence. Significantly, relator did not challenge the finality of the trial court‘s judgment on sentence. In State v. McKinney, 11th Dist. No. 2007-T-0004, 2008-Ohio-3256 (McKinney I), this court affirmed appellant‘s conviction.
{¶7} Thereafter, relator filed a motion to reopen his direct appeal, pursuant to
{¶8} Subsequently, relator filed a motion in the trial court for resentеncing, challenging the court‘s imposition of consecutive sentences. He did not, however, challenge the finality of the court‘s judgment on sentence. The trial court denied the motion. Relator appealed the court‘s ruling, but due to his failure to file an appellate brief, this court dismissed his appeal in State v. McKinney, 11th Dist. No. 2009-T-0093 (McKinney II).
{¶9} Meanwhile, relator filed a motion in the trial court to vacate void judgment, arguing his sentence was void because the trial court did not impose the mandatory term of post-release control with respect to the first-degree felonies of which he was convicted. This court in State v. McKinney, 11th Dist. No. 2011-T-0011, 2010-Ohio-6445 (McKinney III), affirmed in part and reversed in part relator‘s conviction and
{¶10} Between December 29, 2010, and January 18, 2011, relator filed a series of motions in the trial court, each of which requested that respondent issue a final order of conviction pursuant to
{¶11} Appellant argues in his petition that the trial court‘s judgment on sentence is not a final appealable order because, he maintains, it omitted the following: (1) the manner of conviction of Counts Five, Six, Seven, and Nine; (2) the verdicts of the jury on the aggravating circumstances in Counts Two and Four, aggravated murder; (3) the dispоsition of the aggravating circumstances in Count Three, aggravated murder; (4) the jury‘s verdict for kidnapping as a felony of the second degree (the jury found him guilty of felony-one kidnapping); and (5) the court‘s sentence for felony-two kidnapping (the court sentenced him for felony-one kidnapping). Relator argues that because respondent has failed to enter a final appealable order, he is entitled to a writ of mandamus and/or procedendo compelling respondent to enter such an order.
{¶12}
{¶13} A judgment of conviction shall set forth the plea, the verdict, or findings upon which each conviction is based, and the sentence. Multiple judgments of
{¶14} In State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, the Supreme Court of Ohio held: A judgment of conviction is a final appealable order under
{¶15} In State ex rel. Widmer v. Mohney, 11th Dist. No. 2007-G-2776, 2008-Ohio-1028, this court held:
{¶16} A mandamus is a civil proceeding, extraordinary in nature since it can only be maintained when there is no other adequate remedy to enforce clear legal rights. State ex rel. Brammer v. Hayes (1955), 164 Ohio St. 373. Mandamus is a writ
{¶17} Similarly, in order to be entitled to a writ of procedendo, a relator must establish a clear legal right to require the court to proceed, a clear legal duty on the part of the court to proceed, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio St.3d 461, 462, 1995-Ohio-26. A writ of procedendo is appropriate when a court has refused to enter judgment or has unnecessarily delayed proceeding to judgment. State ex rel. Crandall, Pheils & Wisniewski v. DeCessna, 73 Ohio St.3d 180, 184, 1995-Ohio-98. An inferior court‘s refusal or failure to timely dispose of a pending action is the ill a writ of procedendo is designed to remedy. State ex rel. Dehler v. Sutula (1995), 74 Ohio St.3d 33, 35, quoting State ex rel. Levin v. Sheffield Lake, 70 Ohio St.3d 104, 110, 1994-Ohio-385. The writ of procedendo is merely an order from a court of superior jurisdiction to one of infеrior jurisdiction to proceed to judgment. Yee v. Erie Cty. Sheriff‘s Dept. (1990), 51 Ohio St.3d 43, 45, quoting State ex rel. Davey v. Owen (1937), 133 Ohio St. 96, 106.
{¶18} If a judgment of conviction has not been entered in final and appealable form, then mandamus or procedendo is the proper remedy to compel the trial court to issue a final appealable order. State ex rel. Culgan v. Medina Cty. Court of Common Pleas, 119 Ohio St.3d 535, 536, 2008-Ohio-4609. However, a direct appeal from a final judgment of conviction is an adequate remedy at law, which bars a relator‘s mandamus action. Cunningham v. Lucci, 11th Dist. No. 2006-L-052, 2006-Ohio-4666, at ¶12.
{¶19} A motiоn to dismiss for failure to state a claim upon which relief can be granted is procedural in nature and tests the sufficiency of the complaint. Huffman v. Willoughby, 11th Dist. No. 2007-L-040, 2007-Ohio-7120, at ¶16, citing State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 1992-Ohio-73. [W]hen a party files a motion to dismiss for failure to state a claim, all the factual allegations of the complaint must be taken as true and all reasonable inferences must be drawn in favor of the nonmoving party. Byrd v. Faber (1991), 57 Ohio St.3d 56, 60. A ruling on a
{¶20} The prosecutor argues that, pursuant to State ex rel. Lemons v. Kontos, 11th Dist. No. 2009-T-0053, 2009-Ohio-6518, this court can consider the trial court‘s docket in ruling on respondent‘s
{¶21} To summarize the parties’ respective positions, relator argues that he is entitled to a writ of mandamus and/or procedendo because, he claims, he has a сlear legal right to, but the trial court failed to enter, a final judgment that complies with
{¶22} We now consider relator‘s arguments in support of his contention that the trial court failed to enter a final appealable order. As noted above, relator asserts five arguments in support of his position. He does not claim that the judgment incorrectly recited the jury‘s verdicts. Instead, he argues the judgment is not a final appealable order due to certain omissions.
{¶23} First, relator argues the trial court‘s judgment is not final because it omits the manner of conviction for counts 5, 6, 7, and 9 since, according to him, it only states: after due deliberation the defendant was found guilty.
{¶24} The problem with relator‘s argument, however, is that the court‘s judgment clearly indicated the entire case was submitted to the jury. After listing each offense and specification charged in the indictment, the judgment stated that relator was brought into Court for trial before a *** jury; a jury having been empanelled; and after due deliberation, the Defendant was found guilty of Count Two, aggravated murder with specifications; Count Three, aggravated murder with specifications, but not guilty as to specification number four, kidnapping; Count Four, aggravated murder with specifications, but not guilty as to specification number four, kidnapping; Count Five, aggravated burglary; Count Six, aggravated robbery; Count Seven, kidnapping; and Count Nine, aggravated arson. The entry also recited that the jury returned not guilty verdicts on Cоunt One, aggravated murder, and Count Eight, kidnapping. Moreover, the judgment stated that, with respect to Counts Two and Four, aggravated murder, the jury made a finding and recommendation of two sentences of life in prison without parole.
{¶25} Relator concedes that the statement in the judgment that the jury was empanelled and returned verdicts at the mitigation hearing with respect to Counts Two and Four implies that these counts were tried by the jury. Howеver, based on the foregoing references to the jury in the judgment, it plainly indicates that the entire case
{¶26} Thus, contrary to relator‘s argument, the trial court‘s judgment clearly indicated that the indictment as a whole was submitted to the jury and that the jury returned verdicts on Counts Five, Six, Seven, and Nine.
{¶27} Second, relator argues that the judgment did not sufficiently identify the specifications of aggravating circumstances of which he was found guilty with respect to Counts Two and Four, aggravated murder. He therefore argues the court‘s judgment is not a final appealable order. However, with respect to Count Two, the judgment stated that the jury found relator guilty of Count Two, aggravated murder, with specifications of aggravating circumstances as set forth in
{¶29} Third, relator argues that, while the judgment indicated he was found not guilty of specification number four, kidnapping, of Count Three, aggravated murder of Wanda with prior calculation and dеsign, there is no indication regarding the disposition of the other specifications. It is unclear from relator‘s argument whether he is referring to all other specifications (in Counts Two, Three, and Four) or only to the other specifications in Count Three. To the extent this argument refers to the specifications in Counts Two and Four, the argument is redundant and is addressed in our analysis under relator‘s second argument. To the extent the argument refers to Count Three, the argument is likewise without merit because the judgment provided that the jury found relator guilty of the specifications attached to Count Three as referenced in
{¶30} Moreover, relator‘s argument with respect to Count Three is moot because, as noted in the judgment, the state dismissed Count Three and the attached specifications after the jury returned its verdict, but before the mitigation hearing.
{¶32} Relator‘s reliance on State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, is misplaced. In that case the defendant was charged with tampering with records. Pursuant to
{¶33} Under
{¶34} Because the provision referenced by relator is a mitigating factor, he, rather than the state, was required to plead and prove its existence. Because relator failed to do either, he was propеrly found guilty of first-degree kidnapping.
{¶36} In summary, the trial court‘s judgment of December 11, 2006, set forth the jury‘s verdict on each count and specification and the court‘s sentence. Moreover, the judgment was signed by the trial judge and was duly time-stamped. Therefore, the court‘s judgment is a judgment of conviction that satisfied the requirements for finality and is a final appealable order under
{¶37} As such, Judge McKay has already performed his obligation to render a final judgment of conviction. It is well-established that a writ of mandamus will not issue to compel a public official to perform a legal duty which has already been performed. State ex rel. Gantt v. Coleman (1983), 6 Ohio St.3d 5, citing State ex rel. Breaux v. Court of Common Pleas (1977), 50 Ohio St.2d 164, citing State ex rel. Bowman v. Asmann (1925), 113 Ohio St. 394. Stated otherwise, the writ will not lie in order to secure a determination of issues which have become moot. State ex rel. Hawke v. Weygandt (1947), 148 Ohio St. 453, 456; State ex rel. Warner & Swasey Co. v. Indus. Comm. (1977), 50 Ohio St.2d 152.
{¶39} In light of the foregoing analysis, respondent‘s motion to dismiss is granted, and relator‘s petition for a writ of mandamus and/or procedendo is dismissed.
TIMOTHY P. CANNON, P.J., CYNTHIA WESTCOTT RICE, J., MARY JANE TRAPP, J., concur.