The State Ex Rel. T.L.M. v. Judges of the First District Court of Appeals
59 N.E.3d 1260
Ohio
2016
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THE STATE EX REL. T.L.M. v. JUDGES OF THE FIRST DISTRICT COURT OF APPEALS.

No. 2015-1365

Supreme Court of Ohio

Submitted January 5, 2016—Decided April 21, 2016.

147 Ohio St.3d 25

Black, McCuskey, Souers & Arbаugh, Thomas W. Connors, and James M. Wherley, for appellants.

Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Michael J. Hendershot, Chief Deputy Solicitor, and Stephen P. Carney, Deputy Solicitor, for appellees Governor John R. Kasich, Ohio Casino Control Commission, Ohio Lottery Commission, and Tax Commissioner Joseph W. Testa.

Calfee, Halter & Griswold, L.L.P., Christopher S. Williams, James F. Lang, Matthew M. Mendoza, Alexander B. Reich, and Lindsey E. Sacher, for appellees Rock Ohio Caesars, L.L.C., Rock Ohio Caesars Cleveland, L.L.C., and Rock Ohio Caesars Cincinnаti, L.L.C.

Ice Miller, L.L.P., Matthew L. Fornshell, John H. Oberle, and Albert G. Lin, for appellees Central Ohio Gaming Ventures, L.L.C., and Toledo Gaming Ventures, L.L.C.

Dinsmore & Shohl, L.L.P., and Alan H. Abes, for appellee Thistledown Racetrack, L.L.C.

Taft, Stettinius & Hollister, L.L.P., Charles R. Saxbe, James D. Abrams, Irv Berliner, and Celia M. Kilgard, for appellees Northfield Park Associates, L.L.C., Lebanon Trotting Club, Inc., MTR Gaming Group, Inc., and PNK (Ohio), L.L.C.

Porter, Wright, Morris & Arthur, L.L.P., Tami Hart Kirby, William G. Deas, and L. Bradfield Hughes, urging affirmance for amici curiae the Dayton Chamber of Commerce, the Youngstown/Warren ‍‌​​‌​​‌‌‌​‌‌​‌​​​​​​​​​​‌‌​‌​​‌‌​‌​​‌​​​‌​‌​‌‌‌‌‍Regional Chamber, the Seafarers Entertainment and Allied Trades Union, the Affiliаted Construction Trades Ohio Foundation, and the Lebanon City School District.

Paul Langon Cox III, urging affirmance for amicus curiae the Fraternal Order of Police of Ohio, Inc.

Per Curiam.

{¶ 1} We grant rеlator, T.L.M., a juvenile, a peremptory writ of prohibition precluding respondents, the judges of the First District Court of Appeals, from hearing the state of Ohio‘s appeals of thе juvenile court‘s orders granting T.L.M. additional confinement credit. Because the state failed to timely comply with App.R. 5(C), as required when filing a motion for leave to appeal, the court of appeals lacks jurisdiction to hear the appeals. We also deny T.L.M.‘s motion to stay as moot.

Facts

{¶ 2} In September 2014, the Hamilton County Juvenile Court invoked T.L.M.‘s suspendеd 18-month commitment with the Ohio Department of Youth Services (“DYS“) and ordered him into the custody of DYS. The court credited him with 131 days against his DYS commitment. On October 7, 2014, T.L.M. moved the juvenile court to rеcalculate his confinement credit under R.C. 2152.18(B) to include an additional 374 days. However, to preserve his appellate rights, T.L.M. appealed the judgments in his three cases shortly thereafter. The court of appeals granted a limited remand of the three cases for the juvenile court to rule on the recalculation of credit. On February 19, 2015, thе juvenile court granted T.L.M.‘s motion and awarded him 349 days of credit for time served at Abraxas Ohio Residential Treatment Center and Lighthouse Youth Center. T.L.M.‘s appeals were voluntarily dismissed on February 23, 2015.

{¶ 3} On March 19, 2015, the state filed a notice of appeal of each of T.L.M.‘s cases in the juvenile court. The state did not file motions for leave to appeal, as required under R.C. 2945.67(A) and App.R. 5(C). T.L.M. moved to dismiss the appeals, and the court of appeals granted the motions, because the state had not filed the required motions for leave to appeal.

{¶ 4} The state then filed a second set of notices of appeal, this time with accompanying motions for leave to appeal. The motions were filed in the ‍‌​​‌​​‌‌‌​‌‌​‌​​​​​​​​​​‌‌​‌​​‌‌​‌​​‌​​​‌​‌​‌‌‌‌‍juvenile court on March 23 but were not filed in the court of appeals until March 24, after the 30-day deadline for such an appeal had passed.

{¶ 5} T.L.M. moved to dismiss the appeals for lack of jurisdiction, but the court of appeals denied the motions and granted the state‘s motions for leave to appeal. The court of appeals also issued a briefing and scheduling order.

{¶ 6} T.L.M. asserts that the court of appeals has exercised judicial power in denying T.L.M.‘s second set of motions to dismiss the state‘s appeals and granting the state‘s motions for leave to appeal. T.L.M. contends that the court‘s exercise of judicial power is unauthorized by law and that he has no adequate remedy at law.

{¶ 7} T.L.M. requests a peremptory writ to hold in abeyance the appellate court proceedings and a final writ that would (1) prohibit the court of appeals from hearing the appeals and (2) dismiss the proceedings for lack of jurisdiction. T.L.M. also requests an alternative writ requiring the court of appeals to show cause why it should be allowed to proceed.

{¶ 8} The court of appeals, through counsel, filed a motion to dismiss T.L.M.‘s complaint for prohibition, and T.L.M. responded. T.L.M. has аlso filed a motion to stay the appellate proceedings.

Analysis

Prohibition

{¶ 9} To be entitled to the requested writ of prohibition, T.L.M. must establish that (1) the court of appeals is about to еxercise or has exercised judicial power, (2) the exercise of that power is unauthorized by law, and (3) denying the writ would result in injury for which no other adequate remedy exists in the ordinary course of law. , ¶ 18 and 23; , ¶ 12. Even if T.L.M. has an adequate remedy, this court may issue a writ if the lack of jurisdiction is “рatent and unambiguous.” , ¶ 11.

{¶ 10} The court of appeals has exercised judicial power by denying T.L.M.‘s second set of motions for dismissal of the state‘s appeals and granting the state‘s motions for leave to appeal. The court will continue to exercise judicial power, because it has issued a briefing schedule and intends to rule on the appeals. T.L.M. has a remedy in that he may appeal the court‘s final orders if they are adverse to him.

{¶ 11} But T.L.M. claims that the court of appeals patently and unаmbiguously lacks jurisdiction to hear the state‘s appeals of the orders granting him additional confinement credit because the state failed to file in the court of apрeals its motions for leave to appeal before the 30-day deadline set forth in App.R. 5(C).

{¶ 12} In this context, the state has a limited right to appeal and must seek leave to appeal. R.C. 2945.67. App.R. 5(C) states:

When leave is sought by the prosecution from the court of appeals to appeal a judgment or order of the trial court, a motion for leave tо appeal shall be filed with the court of appeals within thirty days from the entry of the judgment and order sought to be appealed * * *. * * * Concurrently with the filing of the motion, the movant shall file with the clerk of the trial court a notice of appeal in the form prescribed by App. R. 3 and file a copy of the notice of appeal in the court of appeals. The movant also shall furnish a copy of the motion and a copy of the notice of appeal to the clerk of the court of appеals who shall serve the notice of appeal and a copy of the motion for leave to appeal upon the attorney for the defendant who, within thirty days from the filing of the motion, may file affidavits, parts of the record, and brief or memorandum of law to refute the claims of the movant.

(Emphasis added.) The state is strictly ‍‌​​‌​​‌‌‌​‌‌​‌​​​​​​​​​​‌‌​‌​​‌‌​‌​​‌​​​‌​‌​‌‌‌‌‍held to the requirements of App.R. 5 when appealing by leave of court. , ¶ 27 (state was “required to timely seek leave to appeal“). See also , syllabus (“A motion for leave to appeal by the state in a criminal case shall be governed by the procedural requirements of App.R. 5 and the time requirements [formerly set forth in] App.R. 4(B)“).

{¶ 13} While the state‘s notices оf appeal and motions for leave to appeal were filed in the juvenile court on March 23, 2015, they were not filed at the court of appeals until March 24, 2015, after the deadline. The motions for leave to appeal were therefore not filed “with the court of appeals” within the 30 days permitted. Nor did the state file the noticеs of appeal with the trial court “[c]oncurrently with the filing of the motion[s]” in the court of appeals. Rather, the state filed all the documents in the trial court, with a request that the clerk of that court file the materials in the court of appeals. The juvenile court clerk did not do so until a day after the 30-day deadline had expired.

{¶ 14} Under and , the court of аppeals never obtained jurisdiction to decide whether the state could appeal, because the state did not strictly adhere to the requirements of App.R. 5 by filing its motions in thе court of appeals before the deadline. The court of appeals patently and unambiguously lacks jurisdiction to entertain the state‘s appeals, and wе therefore grant a peremptory writ of prohibition preventing the court of appeals from proceeding.

Motion to stay appellate proceedings

{¶ 15} T.L.M. filed a motion to stay the proceedings in the First District рending a final decision in this case. The motion is denied as moot.

Writ granted and motion to stay denied.

O‘CONNOR, C.J., and PFEIFER, O‘DONNELL, LANZINGER, ‍‌​​‌​​‌‌‌​‌‌​‌​​​​​​​​​​‌‌​‌​​‌‌​‌​​‌​​​‌​‌​‌‌‌‌‍KENNEDY, FRENCH, and O‘NEILL, JJ., concur.

Timothy Young, Ohio Public Defender, and Charlyn Bohland, Assistant Public Defender, for relator.

Michael DeWine, Attorney General, and Sarah E. Pierce and Brodi J. Conover, Assistant Attorneys General, for respondents.

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