State ex rel. Person v. McCarty ( 2020 )


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  • [Cite as State ex rel. Person v. McCarty, 
    2020-Ohio-3532
    .]
    STATE OF OHIO                     )                          IN THE COURT OF APPEALS
    )ss:                       NINTH JUDICIAL DISTRICT
    COUNTY OF SUMMIT                  )
    STATE EX REL. MICHAEL PERSON
    Relator                                              C.A. No.   29700
    v.
    HONORABLE JUDGE ALISON                                       ORIGINAL ACTION IN
    MCCARTY                                                      MANDAMUS
    Relator
    Dated: June 30, 2020
    PER CURIAM.
    {¶1}     Michael Person has filed a complaint asking this Court for a writ of
    mandamus directed to Judge Alison McCarty, who presided over his criminal case,
    seeking an order to vacate his sentence and hold a new sentencing hearing. Judge
    McCarty moved to dismiss, and Mr. Person responded to the motion. Because Mr. Person
    has not demonstrated that he has a clear legal right to relief, and because he had an
    adequate remedy at law, Judge McCarty’s motion to dismiss is granted.
    {¶2}     “For a writ of mandamus to issue, a relator must demonstrate that (1) the
    relator has a clear legal right to the relief prayed for, (2) respondent is under a
    corresponding clear legal duty to perform the requested acts, and (3) relator has no plain
    and adequate legal remedy.” State ex rel. Serv. Emp. Internatl. Union, Dist. 925 v. State
    Emp. Relations Bd., 
    81 Ohio St.3d 173
    , 176 (1998). Relator must demonstrate all three
    C.A. No. 29700
    Page 2 of 4
    elements in order for this Court to grant the writ of mandamus. “A court can dismiss a
    mandamus action under Civ.R. 12(B)(6) for failure to state a claim upon which relief can
    be granted 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 he can
    prove no set of facts entitling him to the requested writ of mandamus.” State ex rel.
    Russell v. Thornton, 
    111 Ohio St.3d 409
    , 
    2006-Ohio-5858
    , ¶ 9.
    {¶3}   Mr. Person’s complaint alleged that he was indicted for a variety of
    offenses, including, among others, kidnapping. As to kidnapping, he was indicted for
    violating R.C. “2905.01(A)(3) and/or (A)(4)”. The jury returned a guilty verdict on all
    counts, including a guilty verdict for “kidnapping” without reference to a specific section.
    Judge McCarty sentenced Mr. Person, he appealed, and this Court affirmed the trial
    court’s judgment. State v. Person, 9th Dist. Summit No. 27600, 
    2016-Ohio-681
    .
    {¶4}   Mr. Person has asserted in his complaint that his conviction must be vacated
    because it is not clear whether the jury reached a unanimous verdict on the kidnapping
    count. Specifically, he contends that it is not clear whether the jury unanimously found
    him guilty for violating R.C. 2905.01(A)(3) or R.C. 2905.01(A)(4). Mr. Person has also
    alleged that his attorney was ineffective in failing to tell him that he only had 90 days to
    file an application to reopen his direct appeal, so he missed the opportunity to pursue this
    remedy. Thus, he concludes, mandamus is the only relief available to him.
    {¶5}   Mr. Person asks this Court to order the trial court to vacate his judgment of
    conviction and order de novo sentencing because it is unclear whether the jury
    unanimously found him guilty of violating R.C. 2905.01(A)(3) or R.C. 2905.01(A)(4).
    C.A. No. 29700
    Page 3 of 4
    Based on the facts alleged in the complaint, Mr. Person is not entitled to mandamus relief.
    He has not demonstrated any facts to show that he has a clear legal right to the relief
    prayed for and he had a plain and adequate legal remedy by way of appeal.
    {¶6}    Crim.R. 31(A) requires jury verdicts to be unanimous. That is, all 12 jurors
    must agree that the elements of an offense have been proved beyond a reasonable doubt,
    but the “jurors need not agree to a single way by which an element is satisfied[,]” if the
    element can be satisfied by one of several possible means. State v. Gardner, 
    118 Ohio St.3d 420
    , 
    2008-Ohio-2787
    , ¶ 38 (plurality opinion). Mr. Person was not deprived of a
    unanimous verdict simply because the jury was not required to agree unanimously as to
    the purpose for which Mr. Person kidnapped the victim. State v. Fry, 
    125 Ohio St.3d 163
    ,
    ¶ 123, quoting Gardner at ¶ 68. Because the underlying premise of Mr. Person’s
    argument is not supported, he has not demonstrated that he has a clear legal right to be
    resentenced.
    {¶7}    Mr. Person also had an adequate remedy at law to raise this issue. “The
    availability of an appeal is an adequate remedy sufficient to preclude a writ.” State ex
    rel. Luoma v. Russo, 
    141 Ohio St.3d 53
    , 
    2014-Ohio-4532
    , ¶ 8, quoting State ex rel.
    Pressley v. Indus. Comm., 
    11 Ohio St.2d 141
    , paragraph three of the syllabus. Mr. Person
    “had access to an adequate remedy in the ordinary course of law by way of appeal of that
    decision, regardless of whether he used that remedy. If an adequate remedy was available
    but [Mr. Person] failed to take advantage of it or is time-barred from using it, mandamus
    will not lie to substitute for that remedy.” State ex rel. Ridenour v. O’Connell, 
    147 Ohio St.3d 351
    , 
    2016-Ohio-7368
    , ¶ 3-4, citing State ex rel. Alhamarshah v. Indus. Comm., 142
    C.A. No. 29700
    Page 4 of 
    4 Ohio St.3d 524
    , 
    2015-Ohio-1357
    , ¶ 11; State ex rel. Zimmerman v. Tompkins, 
    75 Ohio St.3d 447
    , 449 (1996), citing State ex rel. Johnson v. Cleveland Hts./Univ. Hts. School
    Dist. Bd. of Edn., 
    73 Ohio St.3d 189
    , 192–193 (1995).
    {¶8}   Mr. Person pursued an appeal of his conviction, but did not raise the
    argument he now asserts in this mandamus action. Because appeal was available as an
    adequate remedy, he is not entitled to a writ of mandamus. Likewise, his failure to timely
    pursue an application to reopen does not provide an additional opportunity to pursue
    mandamus relief; the remedy was available and that is sufficient to preclude mandamus
    relief.
    {¶9}   Because Mr. Person is not entitled to a writ of mandamus, the motion to
    dismiss is granted, and this case is dismissed.
    {¶10} The clerk of courts is hereby directed to serve upon all parties not in default
    notice of this judgment and its date of entry upon the journal. Civ.R. 58.
    LYNNE S. CALLAHAN
    FOR THE COURT
    SCHAFER, J.
    TEODOSIO, J.
    CONCUR.
    APPEARANCES:
    MICHAEL PERSON, Pro se, Petitioner.
    SHERRI BEVAN WALSH, Prosecuting Attorney, and COLLEEN SIMS, Assistant
    Prosecuting Attorney, for Respondent.
    

Document Info

Docket Number: 29700

Judges: Per Curiam

Filed Date: 6/30/2020

Precedential Status: Precedential

Modified Date: 7/6/2020