State ex rel. Myles v. Goering , 2023 Ohio 483 ( 2023 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Myles v. Goering, Slip Opinion No. 2023-Ohio-483.]
NOTICE
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SLIP OPINION NO. 2023-OHIO-483THE STATE EX REL. MYLES, APPELLANT, v. GOERING, JUDGE, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Myles v. Goering, Slip Opinion No.
2023-Ohio-483.]
Mandamus—Procedendo—Inmate’s complaint challenging trial court’s
sentencing entry failed to state a viable claim for relief in mandamus or
procedendo against named respondent—Court of appeals’ dismissal of
complaint affirmed.
(No. 2022-0696—Submitted January 10, 2023—Decided February 22, 2023.)
APPEAL from the Court of Appeals for Hamilton County, No. C-220112.
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SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} Appellant, Gerry T. Myles,1 appeals the First District Court of
Appeals’ dismissal of his complaint for a writ of mandamus and/or procedendo
against appellee, Hamilton County Common Pleas Court Judge Robert A. Goering
(“the trial court”). We affirm.
Background
{¶ 2} In May 2004, Myles was fleeing the police at a high rate of speed
when he struck a vehicle being driven by Sylvia Scherer. See State v. Myles, 1st
Dist. Hamilton No. C-050810, 2007-Ohio-3307, ¶ 1-2. Scherer was killed. Id. at
¶ 1. Myles was indicted in the Hamilton County Court of Common Pleas for felony
murder (the predicate felony being felonious assault), one count of aggravated
vehicular homicide, and two counts of failure to comply with an order or signal of
a police officer. Myles was found guilty on all counts, and in September 2005,
Judge Beth A. Myers sentenced him to an aggregate prison term of 20 years. The
court of appeals affirmed. Id. at ¶ 77.
{¶ 3} In March 2022, Myles filed a complaint in the First District alleging
that he had been convicted of felony murder based on the predicate felony of
felonious assault but that the trial court’s sentencing entry did not dispose of the
underlying felonious-assault charge. He sought a writ of mandamus and/or
procedendo compelling the trial court “to enter judgment (including sentence) on
each and every offense for which there is a conviction, i.e., ‘Felonious Assault to
wit: Sylvia Scherer,’ ” and to issue a journal entry memorializing the disposition.
1. The indictment in the underlying criminal case identifies him as “Gary” Myles. He is variously
referred to as “Gary” and “Gerry” throughout the criminal case. However, in his complaint in this
case, relator identifies himself as “Gerry.”
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January Term, 2023
{¶ 4} The court of appeals granted the trial court’s motion to dismiss Myles’
complaint for a writ of mandamus and/or procedendo on the ground that Myles had
not been indicted on a separate charge of felonious assault and therefore the trial
court had no legal duty to enter a separate judgment as to felonious assault. Myles
appealed.
Legal Analysis
{¶ 5} We review dismissals under Civ.R. 12(B)(6) de novo. State ex rel.
McKinney v. Schmenk, 152 Ohio St.3d 70, 2017-Ohio-9183, 92 N.E.3d 871, ¶ 8.
“A motion to dismiss for failure to state a claim upon which relief can be granted
tests the sufficiency of the complaint.” Volbers-Klarich v. Middletown Mgt., Inc.,
125 Ohio St.3d 494, 2010-Ohio-2057, 929 N.E.2d 434, ¶ 11. “Dismissal of a
complaint for failure to state a claim upon which relief can be granted is appropriate
if, after all factual allegations of the complaint are presumed true and all reasonable
inferences are made in relator’s favor, it appears beyond doubt that relator can prove
no set of facts warranting relief.” Clark v. Connor, 82 Ohio St.3d 309, 311, 695
N.E.2d 751 (1998).
{¶ 6} To be entitled to a writ of mandamus, a party must establish by clear
and convincing evidence (1) a clear legal right to the requested relief, (2) a clear
legal duty on the part of the respondent to provide it, and (3) the lack of an adequate
remedy in the ordinary course of the law. State ex rel. Love v. O’Donnell, 150 Ohio
St.3d 378, 2017-Ohio-5659, 81 N.E.3d 1250, ¶ 3. A writ of procedendo will issue
when a court has refused to enter judgment or has unnecessarily delayed proceeding
to judgment. State ex rel. Culgan v. Collier, 35 Ohio St.3d 436, 2013-Ohio-1762,
988 N.E.2d 564, ¶ 7. To be entitled to a writ of procedendo, a party must establish
(1) a clear legal right to require the trial court to proceed, (2) a clear legal duty on
the part of the trial court to proceed, and (3) the absence of an adequate remedy in
the ordinary course of the law. State ex rel. Ames v. Pokorny, 164 Ohio St.3d 538,
2021-Ohio-2070, 173 N.E.3d 1208, ¶ 6.
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SUPREME COURT OF OHIO
{¶ 7} Myles notes that while the trial court’s sentencing entry reflects his
conviction for felony murder, the entry does not contain a disposition with respect
to the predicate offense of felonious assault. Myles therefore contends that the
sentencing entry is not a final, appealable order, and he seeks a writ of mandamus
or procedendo compelling the trial court to dispose of the felonious-assault charge
by entering a final judgment in his criminal case.
{¶ 8} But the trial court has no clear legal duty to journalize a disposition of
a felonious-assault charge in Myles’s case, because Myles was never indicted on a
charge of felonious assault. R.C. 2903.02(B), Ohio’s felony-murder statute,
provides: “No person shall cause the death of another as a proximate result of the
offender’s committing or attempting to commit an offense of violence that is a felony
of the first or second degree and that is not [voluntary or involuntary manslaughter].”
(Emphasis added.) Felonious assault, R.C. 2903.11, is specifically identified as an
“offense of violence.” R.C. 2901.01(A)(9)(a); State v. Owens, 162 Ohio St.3d 596,
2020-Ohio-4616, 166 N.E.3d 1142, ¶ 9. To sustain a conviction for felony murder,
the state must prove the elements of the predicate offense beyond a reasonable
doubt. See, e.g., State v. Taylor, 8th Dist. Cuyahoga No. 108347, 2020-Ohio-3589,
¶ 27 (“In order to prove felony murder under R.C. 2903.02(B), the state must prove
that the victim’s death was proximately caused by the commission or attempted
commission of a violent predicate offense, such as felonious assault”).
{¶ 9} However, there is no requirement that the state charge the defendant
with the predicate offense as a separate count in the indictment. In State v. Frazier,
for example, the defendant was charged with felony murder based on a number of
predicate felonies, one of which was rape, but the defendant was not separately
charged with rape in the indictment. 115 Ohio St.3d 139, 2007-Ohio-5048, 873
N.E.2d 1263, ¶ 36. We held that the state could introduce evidence of rape to
establish the underlying felony, despite the lack of a separate charge for rape. Id.
at ¶ 134. Likewise, in State v. Adams, the defendant was charged with aggravated
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January Term, 2023
felony murder under R.C. 2903.01(B), with four predicate felonies. 144 Ohio St.3d
429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 71. He was also indicted on charges for
each of the four predicate felonies, but the trial court dismissed those counts as
barred by the statute of limitations. Id. at ¶ 71-72. After holding that the charge of
aggravated felony murder was not time-barred, we affirmed Adams’s aggravated
felony-murder conviction even though he was not subject to prosecution for the
underlying felonies, because “aggravated felony murder is a specific offense that is
separate from the underlying felony.” Id. at ¶ 78.
{¶ 10} The trial court was under no duty to dispose of a felonious-assault
charge in Myles’s criminal case, because no such charge was brought against him.
The trial court issued a final, appealable order in Myles’s case—indeed, Myles
previously utilized that order to appeal his criminal convictions. See Myles, 2007-
Ohio-3307. For these reasons, Myles’s complaint failed to state a claim for relief
in mandamus or procedendo and was properly dismissed.
Conclusion
{¶ 11} Based on the foregoing, we affirm the judgment of the First District
Court of Appeals.
Judgment affirmed.
KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, and
BRUNNER, JJ., concur.
DETERS, J., not participating.
_________________
Gerry T. Myles, pro se.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R.
Cummings, Assistant Prosecuting Attorney, for appellee.
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