STATE OF OHIO EX REL., JAMIE SUWALSKI, Relator, v. JUDGE ROBERT W. PEELER, Respondent
CASE NO. CA2019-05-053
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
6/8/2020
2020-Ohio-3233
S. POWELL, J.
ORIGINAL ACTION FOR PROHIBITION
Ohio Crime Victim Justice Center, Elizabeth Well, 3976 North Hampton Drive, Powell, Ohio 43065, for relator
Ohio Domestic Violence Network, Micaela Deming, P.O. Box 176, Bluffton, Ohio 45817, for relator
Michael Greer, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for respondent
Repper, Pagan, Cook, Ltd., Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio 45044, for intervenor
{1} This case involves a review of a petition for a writ of prohibition filed by relator, Jamie Suwalski. Suwalski filed her petition with this court on May 28, 2019. After being granted an extension, respondent, the Honorable Robert W. Peeler with the Warren County Court of Common Pleas, filed an answer to Suwalski‘s petition on August 14, 2019. On August 29, 2019, Suwalski‘s ex-husband, Roy Ewing, who this court permitted to intervene in this case on August 5, 2019, also filed an answer to Suwalski‘s petition.
{2} On December 9, 2019, the parties filed a joint stipulated statement of facts. Shortly thereafter, on December 13, 2019, Suwalski filed a brief in support of her petition. To this, Ewing filed a response brief on January 27, 2020 with Judge Peeler filing his own response brief on February 12, 2020. Suwalski then filed a reply brief on February 21, 2020. This case was originally scheduled to be submitted to the court following oral argument. However, due to the impact of the COVID-19 pandemic, this matter was instead submitted to the court without oral argument on May 4, 2020.
{3} The matter now properly before this court, Suwalski seeks a writ of prohibition to prevent Judge Peeler from relieving Ewing of the federal firearms disability
Facts and Procedural History
{4} On April 7, 2017, Ewing was found guilty of domestic violence in violation of
{5} In support of his appeal, Ewing argued that the trial court erred when it prohibited him from cross-examining Suwalski about an alleged “safecracking” incident. This, according to Ewing, would have revealed Suwalski‘s motive to lie in order to get him out of their house so that she could gain leverage over him in their upcoming divorce. Finding no merit to Ewing‘s claim, this court affirmed Ewing‘s conviction in State v. Ewing, 12th Dist. Warren Nos. CA2017-05-062 and CA2017-05-063, 2018-Ohio-451. The Ohio Supreme Court thereafter declined review. 06/06/2018 Case Announcements #2, 2018-Ohio-2155.
{6} On February 5, 2019, Ewing filed an application for relief from the federal firearms disability imposed upon him under
evidence of rehabilitation” exhibited by his “upstanding behavior” following his conviction for
{7} On April 23, 2019, Judge Peeler held a hearing on Ewing‘s application. Ewing testified at this hearing. As part of his testimony, Ewing claimed that the federal firearms disability imposed upon him under
On January 14, 2017, [Suwalski] called 9-1-1 after an argument with [Ewing] escalated and became physical. The responding police officers talked to [Ewing] and [Suwalski] separately. [Suwalski] was upset and her eyes were a little bit puffy and watery. [Suwalski] told one officer that [Ewing] grabbed her by the throat several times, grabbed her by the hair, and shoved her hard enough that she hit a back door, hit her head, and landed on the floor. The officer observed red marks on [Suwalski‘s] neck and found a lump of curly hair on the laundry room floor, just outside the office where the argument mostly took place.
Id., 2018-Ohio-451 at ¶ 2.
{8} On April 29, 2019, Judge Peeler issued a decision granting Ewing‘s application. Judge Peeler issued his decision based on the language found in
- One of the following applies:
- If the disability is based upon an indictment, a conviction, or an adjudication, the applicant has been fully discharged from imprisonment, community control, post-release control, and parole, or, if the applicant is under indictment, has been released on bail or recognizance.
- If the disability is based upon a factor other than an indictment, a conviction, or an adjudication, that factor no longer is applicable to the applicant.
- The applicant has led a law-abiding life since discharge or release, and appears likely to continue to do so.
- The applicant is not otherwise prohibited by law from acquiring, having, or using firearms.
{9} Judge Peeler explained his decision to grant Ewing‘s application as follows:
The record in this case establishes that [Ewing] had no criminal record prior to the 2017 conviction[] and has led a law-abiding life since the 2017 conviction[]. [Ewing] has been fully discharged from his 2017 sentence of incarceration and non-reporting probation. No evidence was admitted at the hearing that [Ewing] had any probation infractions or acted inappropriately while on probation. There is nothing to indicate that [Ewing] would not continue to live a law-abiding life, whether his application is granted or not. Further, the State concedes [Ewing] is not otherwise prohibited by law from acquiring, having, or using a firearm.
While the victim of [Ewing‘s] past criminal conduct certainly has trepidations regarding [Ewing‘s] ability to possess firearms, the record reveals no evidence that [Ewing] is a risk to Ms. Suwalski or any other person. Ms. Suwalski admitted that she has not seen [Ewing] since their divorce was finalized approximately one year ago.
Suwalski‘s Standing to Petition this Court for a Writ of Prohibition
{10} Effective February 5, 2018,
delinquent act is committed or who is directly and proximately harmed by the commission of the offense or act‘“); State v. Jones, 1st Dist. Hamilton No. C-190039, 2020-Ohio-81, ¶ 9 (“on February 5, 2018, the amendment to Article I, Section 10a of the Ohio Constitution, known as Marsy‘s Law, became effective“); State ex rel. S.L. v. Rucker, 1st Dist. Hamilton No. C-190248, 2020-Ohio-584, ¶ 3 (“Marsy‘s Law is an amendment to the Ohio Constitution that expands the rights afforded to victims of crimes“).
{11} The expanded rights afforded to crime victims include those set forth in
The victim, the attorney for the government upon request of the victim, or the victim‘s other lawful representative, in any proceeding involving the criminal offense or delinquent act against the victim or in which the victim‘s rights are implicated, may assert the rights enumerated in this section and any other right afforded to the victim by law. If the relief sought is denied, the victim or the victim‘s lawful representative may petition the court of appeals for the applicable district, which shall promptly consider and decide the petition.
{12} Thus, by its terms, Marsy‘s Law authorizes Suwalski to petition this court for a writ of prohibition under these circumstances. See Rucker (“[u]nder Marsy‘s Law, the victim also has the right to ‘petition’ a court of appeals if the victim‘s rights are ‘implicated’ in a criminal proceeding); see, e.g., State ex rel. Howery v. Powers, 12th Dist. Butler No. CA2019-03-045, 2020-Ohio-2767, ¶¶ 14, 20 (remedy for a crime victim who was not provided for full and timely restitution as provided under Marsy‘s Law was to petition this court for a writ of mandamus directing the trial court judge to reopen sentencing “to allow relator to enforce her constitutional right of restitution“). This holds true even though Suwalski neither appealed from Judge Peeler‘s decision directly nor intervened in the action below. “The right a victim may have to ‘petition’ an appellate court is not equivalent to that of a party with a right to appeal.” State v. Hughes, 8th Dist. Cuyahoga No. 107697, 2019-Ohio-1000, ¶ 16. Therefore, in accordance with Marsy‘s Law, specifically,
the Ohio Constitution, Suwalski has standing to petition this court for a writ of prohibition to prevent Judge Peeler from relieving Ewing of the federal firearms disability imposed upon him under
Suwalski‘s Petition for a Writ of Prohibition
{13} “Prohibition is an extraordinary writ issued by a higher court to a lower court to restrain the unauthorized exercise of judicial power.” State ex rel. Cincinnati Enquirer v. Oda, 12th Dist. Warren No. CA2017-08-130, 2018-Ohio-704, ¶ 10, citing State ex rel. Daily Reporter v. Court of Common Pleas of Franklin Cty., 56 Ohio St.3d 145 (1990). “Three elements are necessary for a writ of prohibition to issue: the exercise of judicial or quasi-judicial power, the lack of legal authority for the exercise of that power, and the lack of an adequate remedy in the ordinary course of law.” State ex rel. Barney v. Union Cty. Bd. of Elections, Slip Opinion No. 2019-Ohio-4277, ¶ 11, citing State ex rel. Tam O‘Shanter Co. v. Stark Cty. Bd. of Elections, 151 Ohio St.3d 134, 2017-Ohio-8167, ¶ 14. Suwalski bears the burden to demonstrate that she is entitled to the requested writ. Roberts v. Winkler, 176 Ohio App.3d 685, 2008-Ohio-2843, ¶ 11 (1st Dist.). Therefore, for the writ to issue, Suwalski must establish that: (1) Judge Peeler is about to exercise or has exercised his judicial power, (2) Judge Peeler‘s exercise of his judicial power was not authorized by law, and (3) denial of the writ will cause injury for which she would lack an adequate remedy in the ordinary course of law. State ex rel. City of Cleveland v. Russo, 156 Ohio St.3d 449, 2019-Ohio-1595, ¶ 8, citing State ex rel. Elder v. Camplese, 144 Ohio St.3d 89, 2015-Ohio-3628, ¶ 13.
{14} Because the first and third elements are clearly satisfied, the only real issue to be decided is whether a state court judge in Ohio, like Judge Peeler, has the judicial power under Ohio law, specifically
that this issue has not previously been addressed by any appellate court in Ohio.4 This is true even before Marsy‘s Law came into effect. Therefore, because there is no Ohio case law to refer to for guidance, Judge Peeler has instead cited to the Illinois Supreme Court‘s decision in Coram v. Illinois, 2013 IL 113867.
{15} In Coram, the Illinois Supreme Court determined that its state court judges had the judicial power under then existing Illinois law to “override a federal [firearms] disability, reasoning that a state‘s ability to restore firearm rights was necessarily implied by Congress.” Johnson v. Illinois Dept. of State Police, 2020 IL 124213, ¶ 14, citing Coram at ¶ 69 (“[g]iven the broad powers Congress has given the states to restore rights and grant relief from federally imposed firearms disabilities, we believe the power to grant relief, or restore rights, to those who have lost them as a result of state misdemeanor convictions is necessarily implied“). This is because, based on the law in effect at that time, “nothing prevented the trial court from granting relief from the federal firearms disability.” People v. Love, 2020 IL App (1st) 171437-U, ¶ 17, citing Coram at ¶ 9.
{16} The law applied by the Illinois Supreme Court in Coram, however, has since been amended. The current law,
(c) Any person prohibited from possessing a firearm under Sections 24-1.1 or 24-3.1 of the Criminal Code of 2012 or acquiring a Firearm Owner‘s Identification Card under Section 8 of this Act
may apply to the Director of State Police or petition the circuit court in the county where the petitioner resides, whichever is applicable in accordance with subsection (a) of this Section, requesting relief from such prohibition and the Director or court may grant such relief if it is established by the applicant to the court‘s or Director‘s satisfaction that: (0.05) when in the circuit court, the State‘s Attorney has been served with a written copy of the petition at least 30 days before
any such hearing in the circuit court and at the hearing the State‘s Attorney was afforded an opportunity to present evidence and object to the petition;
(1) the applicant has not been convicted of a forcible felony under the laws of this State or any other jurisdiction within 20 years of the applicant‘s application for a Firearm Owner‘s Identification Card, or at least 20 years have passed since the end of any period of imprisonment imposed in relation to that conviction;
(2) the circumstances regarding a criminal conviction, where applicable, the applicant‘s criminal history and his reputation are such that the applicant will not be likely to act in a manner dangerous to public safety;
(3) granting relief would not be contrary to the public interest; and
(4) granting relief would not be contrary to federal law.
{17} Most significant is the language found in
[
18 U.S.C. 921(a)(33)(B)(ii) ] defines a “conviction” in such a way as to exclude from its purview a misdemeanor crime of domestic violence where, as a matter of state law, “the conviction has been expunged or set aside” or where the misdemeanor was “an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.”
Id., 2020 IL 124213 at ¶ 23.
{18} The language found in
{19} Under federal law, a person who has been convicted of misdemeanor domestic violence has four mechanisms of relief from a federal firearm disability imposed under
{20} Ewing, however, never lost any of his civil rights as a result of his misdemeanor domestic violence conviction. See United States v. Chovan, 735 F.3d 1127, 1132 (9th Cir.2013) (appellant‘s misdemeanor domestic violence conviction “did not divest him of civil rights because it did not divest him of the right to vote, the right to serve on a jury, or the right to hold public office“). Judge Peeler admits this as part of his response brief. “[T]he words ‘civil rights restored’ in [
whose civil rights were never taken away.” United States v. Bridges, 696 F.3d 474, 475 (6th Cir.2012), citing Logan v. United States, 552 U.S. 23, 37, 128 S. Ct. 475 (2007). Therefore, because Ewing cannot satisfy any of the four mechanisms of relief from the federal firearms disability imposed upon him under
{21} As noted above, an applicant in Ewing‘s position cannot be granted relief under
{22} In so holding, we note Ewing‘s argument claiming the General Assembly has expressed its intent that
It is the intent of the General Assembly in amending section 2923.14 of the Revised Code to apply the amendments to that section retroactively to any restoration of rights granted previously to any applicant under section 2923.14 of the Revised Code or under any previous version of that section. The General Assembly is explicitly making this amendment to clarify that relief from a weapons disability granted under section 2923.14 of the Revised Code restores a person‘s civil firearm rights to such an extent that the uniform federal ban on possessing any firearms at all,
18 U.S.C. 922(g)(1) , does not apply to that person, in correlation with the U.S. Supreme Court‘s interpretation of18 U.S.C. 921(a)(20) in Caron v. U.S. (1998), 524 U.S. 308.
{23} However, by
Unlike a federal firearms disability imposed under
Conclusion
{24} After considering the arguments advanced by both parties herein, Suwalski‘s petition for a writ of prohibition is hereby granted as Judge Peeler does not have the judicial power under Ohio law, specifically
{25} Writ granted.
HENDRICKSON, P.J., and M. POWELL, J., concur.