State of Ohio v. David Beach
No. 20AP-589
IN THE COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT
December 21, 2021
2021-Ohio-4497
MENTEL, J.
M.C. Case No. 2019 CRB 016416; REGULAR CALENDAR
Rendered on December 21, 2021
On brief: Zachary M. Klein, City Attorney, Melanie R. Tobias, and Orly Ahroni, for appellee, State of Ohio.1
On brief: Bobbie Yeager, Ohio Crime Victim Justice Center, for appellant. Argued: Bobbie Yeager.
On brief: Yeura R. Venters, Public Defender, and Ian J. Jones, for appellee, David Beach. Argued: Ian J. Jones.
APPEAL from the Franklin County Municipal Court.
MENTEL, J.
{¶ 1} Appellant, S.R., appeals from the November 20, 2020 order denying, in relevant part, S.R.‘s motion for clarification to appear during the sentencing and restitution hearing and motion for blood test. For the reasons that follow, we affirm in part and reverse in part.
{¶ 2} On September 8, 2019, defendant-appellee, David Beach, was charged with one count of assault in violation of
{¶ 3} On December 9, 2019, Beach pleaded no contest to assault in violation of
{¶ 4} On October 8, 2019, Beach tested negative for HIV, gonorrhea, chlamydia, syphilis, and urethral trichomonas. According to S.R., it was not until June 15, 2020 that she was informed of the results from the blood test. On June 24, 2020, S.R. filed a motion for a new blood test arguing that she was entitled to a second round of testing pursuant to
{¶ 5} On November 20, 2020, the trial court ruled on a series of outstanding motions. Relevant to the instant appeal, the trial court denied S.R.‘s motion to be present and seated at the counsel‘s table, finding the motion was premature as neither the state nor Beach had requested that witnesses be separated. The trial court also denied S.R.‘s motion for blood testing concluding that the state had not agreed to additional testing as required by
{¶ 6} On December 14, 2020, the trial court held a sentencing and restitution hearing. S.R. was present and provided testimony at the hearing. Beach was sentenced to 180 days in jail, 167 suspended, with 3 days of jail-time credit. Beach was also given 2 years of community control and ordered to pay restitution in the amount of $13,714.94.
{¶ 7} On December 18, 2020, S.R. filed a notice of appeal from the trial court‘s November 20, 2020 order.
{¶ 8} On September 15, 2021, this court heard oral arguments on this matter. On September 28, 2021, Beach filed a notice of additional authorities as to whether S.R. raised a constitutional issue in the trial court citing State v. Awan, 22 Ohio St.3d 120 (1986). On September 30, 2021, S.R. filed a motion to strike the supplemental authority arguing the filing did not comply with
II. ASSIGNMENTS OF ERROR
{¶ 9} Appellant assigns the following as trial court error:
- The trial court erred in its November 20, 2020 Order when it prohibited Victim-Appellant from timely asserting her constitutional and statutory rights to be present at the sentencing and restitution hearings.
- The trial court erred, violating Victim-Appellant‘s constitutional right to be treated with fairness and respect for her dignity and constitutional and statutory rights to proceedings free from unreasonable delay, when it delayed ruling on Victim-Appellant‘s motion for blood testing for an unreasonable amount of time, and ultimately denied the motion in part because too much time had passed.
- The trial court erred when it denied Victim-Appellant‘s motion for blood testing due to the State‘s failure to join the request in violation of her constitutional right to be treated with fairness and respect for her safety and dignity throughout the criminal justice system.
III. LEGAL ANALYSIS
A. Standing and Jurisdiction of the Court
{¶ 10} As a threshold matter, we must examine whether S.R. has standing to appeal and the jurisdiction of the court in this case.
{¶ 11} While the word “petition” is not defined under the
When applied to the jurisdiction of a court of appeals, the term “petition” is also associated typically with extraordinary-writ actions invoking the court of appeals’ original jurisdiction. See
R.C. 2725.04 (“Application for the writ of habeas corpus shall be by petition * * *“);R.C. 2731.04 (“Application for the writ of mandamus must be by petition * * *“);R.C. 2733.08 (an action in quo warranto for usurpation of office is brought by “petition“); see also State v. Hughes, 2019-Ohio-1000, 134 N.E.3d 710, ¶ 28 (8th Dist.) (lead opinion) (expressing the view that “petition” in Section 10a(B) means that a crime victim may invoke a court of appeals’ original jurisdiction, possibly in mandamus). But the term “petition” could also include the appellate jurisdiction of a court of appeals. See, e.g., Jones v.First Natl. Bank of Bellaire, 123 Ohio St. 642, 9 Ohio L. Abs. 701, 176 N.E. 567 (1931), syllabus (referring to appellate review in court of appeals being pursuant to “a petition in error“); Hughes at ¶ 44 (Sheehan, J., concurring in judgment only) (opining that Section 10a(B) can reasonably be construed as granting a victim right to appeal).
Id. at ¶ 41.
{¶ 12} While McGinty‘s holding is limited to cases involving discovery orders, the Supreme Court, in interpreting the term “petition” under Marsy‘s Law, concluded that “the undefined term ‘petition’ in Section 10a(B) is broad enough to encompass an original action or appellate review.” (Emphasis sic.) Id.2 Accordingly, a victim in a criminal case could, depending on the facts of the case, reasonably construe Marsy‘s law as granting a victim the right to file a direct appeal.
{¶ 13} Next, we must look at whether S.R. has standing to proceed with a direct appeal or if an original action is the more suitable avenue to petition this court. It is well-established law that a victim is not a party to a criminal case. Grubb v. Buehrer, 10th Dist. No. 15AP-576, 2016-Ohio-4645, ¶ 20. “A party has standing when they have a ’ “right to make a legal claim or seek judicial enforcement of a duty or right.” ’ ” In re S.G.D.F., 10th Dist. No. 16AP-57, 2016-Ohio-7134, ¶ 11, quoting Ohio Pyro Inc. v. Ohio Dept. of Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, ¶ 27, quoting Black‘s Law Dictionary 1442 (8th Ed.2004). However, McGinty found the victim, a non-party to the case, may file immediate appeal under
{¶ 14} While we conclude that Marsy‘s Law allows S.R. to petition this court through a direct appeal, we also note that the facts of this case would not allow for an extraordinary writ to address the trial court‘s denial of a motion for blood testing.
{¶ 15} Similarly, to be entitled to a writ of procedendo, a relator must demonstrate “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. Poulton v. Cottrill, 147 Ohio St.3d 402, 2016-Ohio-5789, ¶ 2, citing State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio St.3d 461, 462 (1995). A writ of procedendo is appropriate when a court has refused to render a judgment or created an unnecessary delay in proceeding to judgment. State ex. rel. Williams v. Croce, 153 Ohio St.3d 348, 2018-Ohio-2703, ¶ 6. A writ of procedendo does not, however, attempt to control the trial court as to what that judgment should be. Id. at ¶ 6, quoting State ex rel. Davey v. Owen, 133 Ohio St. 96, 106 (1937).
{¶ 16} Moreover, a writ does not remedy or correct errors and procedural wrongdoings in a case when an appeal provides an adequate remedy. State ex rel. Utley v. Abruzzo, 17 Ohio St.3d 203 (1985), quoting State ex rel. Davey. Neither mandamus nor procedendo will lie if there is an adequate remedy under the law. State ex rel. Tran v. McGrath, 78 Ohio St.3d 45 (1997). “Mandamus may not be employed as a substitute for appeal from an interlocutory order.” State ex rel. Heck v. Kessler, 72 Ohio St.3d 98 (1995), citing State ex rel. Horwitz v. Cuyahoga Cty. Court of Common Pleas, Probate Div., 65 Ohio St.3d 323, 328 (1992). Because we have concluded that S.R. has a right to appeal from an interlocutory order under the particular facts of this case, an extraordinary writ is not the appropriate remedy under the law.6
{¶ 17} Before undertaking a review of the merits, we must consider S.R.‘s motion to strike. S.R. argues that Beach‘s September 28, 2021 notice of supplemental authority was filed in violation of
{¶ 18} Pursuant to
C. Appellant‘s First Assignment of Error
{¶ 19} In S.R.‘s first assignment of error, she argues the trial court erred in prohibiting her from timely asserting her constitutional and statutory rights to be present at the sentencing and restitution hearings.
{¶ 20} Preliminarily, we must first consider whether S.R.‘s first assignment of error is moot.
{¶ 21} It is well-established law that this court will not resolve issues that are deemed moot. Croce v. Ohio State Univ., 10th Dist. No. 20AP-14, 2021-Ohio-2242, ¶ 16. ” ‘The doctrine of mootness is rooted in the “case” or “controversy” language of Section 2, Article III of the United States Constitution and in the general notion of judicial restraint.’ ” Bradley v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 10AP-567, 2011-Ohio-1388, ¶ 11, quoting James A. Keller, Inc. v. Flaherty, 74 Ohio App.3d 788, 791 (10th Dist.1991). Ohio courts have long recognized that it loses jurisdiction over a moot question. Soltesz v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 19AP-444, 2020-Ohio-365, ¶ 12. It is not
{¶ 22} In the case sub judice, S.R. sought to be present and seated at the table with the prosecutor for the sentencing and restitution hearing. In the November 20, 2020 order, the trial court made no determination that S.R. was not entitled to be present at the hearing, only that the motion was premature. At the December 14, 2020 hearing, there was no motion to separate the witnesses and S.R. was able to be present throughout the proceeding. As S.R. was present and participated in the sentencing and restitution hearing, there is no longer an actual genuine, live controversy. Accordingly, S.R.‘s first assignment of error is moot.
{¶ 23} S.R. argues that even if the issue is deemed moot, this court should consider her first assignment of error as both exceptions to the mootness doctrine are applicable. We disagree.
{¶ 24} The Supreme Court has recognized two exceptions to the mootness doctrine. In re L.W., 10th Dist. No. 05AP-317, 2006-Ohio-644, ¶ 12. First, a reviewing court may consider a case that is moot if the issue is capable of repetition yet evading review. State ex rel. Calvary v. Upper Arlington, 89 Ohio St.3d 229, 231 (2000). The exception applies if: “(1) the challenged action is too short in its duration to be fully litigated before its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Id., citing Spencer v. Kemna, 523 U.S. 1, 17-18 (1998). This exception applies only in exceptional circumstances when both factors are met. Calvary at 231. To meet the “capable of repetition, yet evading review” exception “there must be more than a theoretical possibility that the action will arise again. There must also exist a ’ “reasonable expectation” or a “demonstrated probability” that the same controversy will recur involving the same complaining party.’ ” Keller at 792, quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982), citing Weinstein v. Bradford, 423 U.S. 147
{¶ 25} Here, the record does not suggest that the challenged action is too short in its duration to be fully litigated before its expiration. Moreover, given the unique facts of the case, this court is also not convinced that there is more than a theoretical possibility the action will arise again. Keller at 792.
{¶ 26} The second exception to the mootness doctrine applies if the matter is of “public or great general interest.” State ex rel. Lancaster School Dist. Support Assn. v. Lancaster City School Dist. Bd. of Edn., 10th Dist. No. 06AP-305, 2006-Ohio-5520, ¶ 17. “Generally, the invocation of this exception remains the province of the highest court in the state, rather than the intermediate appellate courts, whose decisions do not have binding effect over the entire state.” Rithy Props., Inc. v. Cheeseman, 10th Dist. No. 15AP-641, 2016-Ohio-1602, ¶ 24, citing Althof v. Ohio State Bd. of Psychology, 10th Dist. No. 05AP-1169, 2007-Ohio-1010, ¶ 83. This exception is only used under rare occasions. Rithy Props. at ¶ 24, citing In re L.W., 10th Dist. No. 05AP-317, 2006-Ohio-644, ¶ 13.
{¶ 27} While we do not minimize the seriousness of victim‘s rights involving a sentencing and restitution proceeding, we are also not persuaded that this matter is of such public importance that we should disregard our lack of jurisdiction in this instance. Furthermore, the Supreme Court generally controls the application of this exception rather than an intermediate appellate court such as this one. Rithy Props. at ¶ 24, citing Althof at ¶ 83. Therefore, we conclude this matter falls short of the high threshold necessary to fit within the second exception to the mootness doctrine.
{¶ 28} Even if this case met one of the above exceptions to the mootness doctrine, S.R. was able to be present and sit at the prosecutor‘s table during the restitution and sentencing hearing. Because S.R. suffered no prejudice by the trial court initially finding the motion was prematurely filed, any error by the trial court on this issue was harmless. State v. Benman, 10th Dist. No. 03AP-1012, 2004-Ohio-3935, ¶ 15.
{¶ 29} Accordingly, since this first assignment of error is moot, we must dismiss it for lack of jurisdiction.
{¶ 30} In S.R.‘s second assignment of error, she argues the trial court erred in delaying, and ultimately denying, her motion for blood testing because too much time had passed. In S.R.‘s third assignment of error, she argues the trial court erred by denying her motion for blood testing due to the state failing to join the request under
1. Timeliness of Ruling on Motions for Blood Test
{¶ 31} Appellant argues that the trial court erred in failing to resolve the motion for blood testing in a timely manner. Appellant contends that the trial court cited this delay as a reason for denying the motion.
{¶ 32}
{¶ 33} In the present case, Beach was required to be tested for communicable diseases as a condition of bond. According to S.R., there was some delay in providing the results of the initial test. S.R. filed her motion for a second round of blood testing on June 24, 2020, and a renewed motion for blood testing on August 5, 2020. On October 14, 2020, S.R. filed a request for ruling on her motion for blood testing and renewed motion for blood testing. On November 20, 2020, S.R. filed a writ of procedendo with this court for the trial court to rule on the outstanding motions for blood testing that was later
2. R.C. 2907.27
{¶ 34} Appellant argues that the trial court erred in denying her motion for blood testing in violation of
{¶ 35} S.R. identifies several provisions of
{¶ 36} Similarly, S.R. cites
{¶ 37} S.R. next argues the trial court erred in denying her motion under
[U]pon the request of the prosecutor in the case, upon the request of the victim with the agreement of the prosecutor, or upon the request of any other person with the agreement of the prosecutor, may cause an accused * * * to submit to one or more tests so designed by the director of health if the circumstances of the violation indicate probable cause to believe that the accused, if the accused is infected with HIV, might have transmitted HIV to any of the following persons in committing the violation.
{¶ 38} As
{¶ 39} After a careful review of the record, we find the trial court‘s denial of the blood test under
{¶ 40} S.R. cites State v. Wallace, 2d Dist. No. 20030, 2005-Ohio-1913, for the proposition that
{¶ 41} Based on the foregoing, we find the trial court‘s denial of S.R.‘s motion under
3. Marsy‘s Law
{¶ 42} S.R. also argues the trial court‘s denial of her motion for blood test violated S.R.‘s right “to be treated with fairness and respect for the victim‘s safety, dignity and privacy.”
{¶ 43} During oral arguments, this court broached the issue of whether this argument was preserved for appeal. After careful review of the record, we find that while S.R. failed to initially cite Marsy‘s Law in her first motion for a blood test, prior to the trial court‘s ruling on the matter, S.R. supplemented her original argument asking the trial court to consider the motion under Marsy‘s Law in its October 14, 2020 filing for ruling on the prior motions for blood test. S.R. wrote “[m]eanwhile, S.R., the crime victim in this matter, continues to be deprived of her constitutional rights to safety and dignity—rights requiring a medical assurance that Defendant did not expose her to communicable diseases when he assaulted her.” (Oct. 14, 2020 Victim S.R.‘s Request for Ruling on Victim S.R.‘s Mot. for Blood Testing and Victim S.R.‘s Renewed Mot. for Blood Testing at 3.) The trial court appears to have reached the same conclusion as it addressed all of S.R.‘s motions for blood
{¶ 44} In its November 20, 2020 order, the trial court denied S.R.‘s motion for blood testing based on its statutory interpretation of
IV. CONCLUSION
{¶ 45} For the foregoing reasons, S.R.‘s motion to strike is granted; S.R.‘s first assignment of error is dismissed as moot; S.R.‘s second and third assignments of error are overruled in part and sustained in part. This matter is remanded to the Franklin County Municipal Court for further proceedings consistent with law and this decision.
Motion to strike granted; judgment affirmed in part and reversed in part; cause remanded.
DORRIAN, P.J. and KLATT, J., concur.