STATE OF OHIO, EX REL., TIMOTHY NEWELL v. JUDGE DANIEL GAUL
No. 98326
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 31, 2012
2012-Ohio-4068
JOURNAL ENTRY AND OPINION; Motion Nos. 455532 and 456213; Order No. 457862
Writ of Mandamus
Timothy Newell, pro se
Inmate No. 153-518
Grafton Correctional Institution
2500 South Avon Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR RESPONDENT
William D. Mason
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, OH 44113
{¶1} On May 7, 2012, the relator, Timothy Newell, commenced this mandamus action against the respondent, Judge Daniel Gaul, to compel the judge to issue final, appealable orders pursuant to
Procedural and Factual Background
{¶2} In 1978, in the underlying cases, a jury convicted Newell on five counts of kidnapping, 15 counts of rape, four counts of aggravated robbery, one count of gross sexual imposition, and one count of felonious sexual penetration. The trial court imposed consecutive sentences for each count.
{¶3} On appeal, this court ruled that the charges of kidnapping and rape were allied offenses. “Thus, all counts of kidnapping of which the defendant was convicted and the sentences relating to these counts (one count had been nolled) are hereby reversed. The
{¶4} On April 10, 1995, Newell commenced State ex rel. Newell v. Cuyahoga Common Pleas Court, 8th Dist. No. 68791, a mandamus action, to compel the trial court to effect the appellate mandate by making the appropriate corrections to his sentence and forwarding it to the Ohio Adult Parole Authority. It appeared that the Ohio Adult Parole Authority and the Ohio Department of Rehabilitation and Correction had not recognized this court‘s modification of the sentence.
{¶5} The respondent court moved to dismiss the 1995 mandamus action on the grounds that this court‘s order was self-executing; thus, there was no duty to issue and no right to an order correcting the sentence. This court denied this motion to dismiss because the respondent failed to cite controlling authority and because the mandate language indicated a correcting journal entry. This court then invited the respondent court to move for summary judgment, establishing that “it has issued an order pursuant to the appellate mandate correcting the sentence” or that the Ohio Adult Parole Authority had recognized the corrected sentence.
{¶6} In response, on June 26, 1996, the respondent court issued the subject journal entry. The respondent court recognized that this court had previously modified Newell‘s sentences by vacating the kidnapping counts in the underlying cases. It then ordered that Newell‘s sentences on the kidnapping charges in each of the underlying cases were vacated. The respondent court then listed the sentences for each of the remaining counts in each case and ordered them to be served consecutively. This order did not reiterate the fact of conviction for each charge, nor did it order the sentences to be served in a prison institution.
{¶7} As requested, the respondent court moved for summary judgment in the 1995 mandamus action on the grounds of mootness. This court noted that this motion was based on “a properly executed order vacating the sentences for kidnapping.” This court granted the respondent court‘s motion for summary judgment because Newell had received his requested relief, the appropriate correction to his sentence and because, in vacating the sentences for kidnapping, the respondent court had followed the mandate of this court.1 State ex rel. Newell v. Cuyahoga Cty. Court of Common Pleas, 8th Dist. No. 68791 (July 19, 1996). Newell
{¶8} On March 19, 2012, Newell moved the trial court in each of the underlying cases to issue a final, appealable order pursuant to
Legal Analysis
{¶10} In addition, if the relator had an adequate remedy, regardless of whether it was used, relief in mandamus is precluded. State ex rel. Tran v. McGrath, 78 Ohio St.3d 45, 1997-Ohio-245, 676 N.E.2d 108. Moreover, mandamus is an extraordinary remedy that is to be exercised with caution and only when the right is clear. It should not issue in doubtful cases. State ex rel. Taylor v. Glasser, 50 Ohio St.2d 165, 364 N.E.2d 1 (1977); State ex rel. Shafer v. Ohio Turnpike Comm., 159 Ohio St. 581, 113 N.E.2d 14 (1953). Furthermore, mandamus will not issue to compel a vain act. State ex rel. Cotton v. Ghee, 84 Ohio St.3d 54, 1998-Ohio-679, 701 N.E.2d 989.
the exigency which calls for the exercise of such discretion, the nature and extent of the wrong or injury which would follow a refusal of the writ, and other facts which have a bearing on the particular case. * * * Among the facts and circumstances which the court will consider are the applicant‘s rights, the interests of third persons, the importance or unimportance of the case, the applicant‘s conduct, the equity and justice of the relator‘s case, public policy and the public‘s interest, whether the performance of the act by the respondent would give the relator any effective relief, and whether such act would be impossible, illegal, or useless.
Id. at 161-162.
{¶12} The subject June 26, 1996 order was the result of a peculiar procedural posture. The respondent issued it to fulfill this court‘s mandate to vacate the sentences for the kidnapping charges. The respondent also issued the order to resolve a mandamus action in which Newell sought to vacate those sentences and reduce his overall sentence. The order was effective; it achieved both goals. Because of the special nature and purpose of the order, this court questions whether the subject June 26, 1996 order is a judgment of conviction under
{¶13} Additionally, Newell had an adequate remedy at law. In all reality, if either Newell or the state of Ohio had wanted to appeal the subject order in 1996, they could have. The defect Newell trumpets is the failure to reiterate the fact and means of conviction. The Ohio Supreme Court did not recognize that omission as a jurisdictional impediment until 2008 in Baker. Thus, the subject defect would not have been recognized in 1996 and would not have precluded an appeal.
{¶14} Res judicata also bars this mandamus action. “Claim preclusion prevents subsequent actions, by the same parties or their privies, based upon any claim arising out of a transaction that was the subject matter of a previous action.” O‘Nesti v. DeBartolo Realty Corp., 113 Ohio St.3d 59, 2007-Ohio-1102, 862 N.E.2d 903, ¶ 6. Newell could have raised any improprieties with the subject journal entry in the 1995 mandamus action and his appeal of
{¶15} Moreover, Newell is seeking a vain act. In his complaint, paragraph 14, Newell states his strategy and reasoning: “This court should rule that relator has a right to a final, appealable order of the trial court‘s entry modifying sentence on June 26, 1996, that comports with Crim.R. 32(C). Which will enable relator to perfect an appeal of the matters therein.” (Punctuation in the original.) Thus, Newell is engaging in this exercise 16 years after the entry of the subject order and four years after the release of Baker to obtain another round of appeals. However, in Lester, the Ohio Supreme Court held “that a nunc pro tunc judgment entry issued for the sole purpose of complying with Crim.R. 32(C) to correct a clerical omission in a final judgment entry is not a new final order from which a new appeal may be taken.” ¶ 20. Granting Newell his requested relief would not afford him his ultimate goal but would lead to the expenditure of further judicial resources in “dead-end” litigation. In State v. Reddick, 72 Ohio St.3d 88, 90-91, 1995-Ohio-249, 647 N.E.2d 784, the Ohio Supreme Court admonished that judicial remedies are not intended to be open invitations for persons sentenced to long periods of incarceration to concoct new theories in order to have a new round of appeals. Because mandamus will not issue to compel a vain act, this court declines to issue the writ of mandamus.
Writ denied.
COLLEEN CONWAY COONEY, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and MARY EILEEN KILBANE, J., CONCUR