State ex rel. Freeman v. O'Donnell ( 2023 )

[Cite as State ex rel. Freeman v. O'Donnell, 2023-Ohio-4662.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, EX REL.,
MAURICE FREEMAN, :
Relator, :
No. 113187
v. :
JUDGE JENNIFER O’DONNELL, :
Respondent. :
JOURNAL ENTRY AND OPINION
JUDGMENT: WRITS DENIED
DATED: December 19, 2023
Writs of Prohibition and Mandamus
Motion No. 568509
Order No. 570500
Appearances:
Maurice Freeman, pro se.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and James E. Moss, Assistant Prosecuting
Attorney, for respondent.
EILEEN T. GALLAGHER, J.:
On September 19, 2023, the relator, Maurice Freeman, commenced this
mandamus and prohibition action against the respondent, Judge Nancy
McDonnell.1 Freeman seeks to void his conviction for having a weapon while under
disability in the underlying case, State v. Freeman, Cuyahoga C.P. No. CR-01-
410924-ZA. He argues that the trial court’s summary disposition of the weapons
charge deprived him of his right to counsel and under Johnson v. Zerbst, 304 U.S.
458, 58 S.Ct. 1019, 82 L.Ed.2d 1461 (1938), and State ex rel. Ogle v. Hocking Cty.
Common Pleas Court, 167 Ohio St.3d 181, 2021-Ohio-4453, 190 N.E.2d 594, the
deprivation of the right to counsel divests the trial court of jurisdiction, rendering
the conviction void. On October 11, 2023, the respondent, through the Cuyahoga
County Prosecutor, moved for summary judgment, and Freeman filed his brief in
opposition on November 6, 2023. For the following reasons, this court grants the
respondent’s dispositive motion and denies the application for writs of mandamus
and prohibition.
FACTUAL BACKGROUND
The evidence in the underlying case shows that on July 25, 2001, after
making a phone call at his girlfriend’s house, Freeman entered the rear of an
automobile that had stopped when Freeman had called out to the front seat
passenger. Freeman had been in the car only a short time before the front seat
passenger heard a shot fired. He saw Freeman pulling the gun back, and the driver,
Alphonso Amos, was trying to snatch the weapon away. A witness who was leaving
the girlfriend’s house saw the car strike a utility pole. The driver leaped out and ran
1 Judge Jennifer O’Donnell has succeeded Judge Nancy McDonnell. Pursuant to
Civ.R. 21 and App.R. 29(C), this court substitutes Judge O’Donnell as the respondent.
a short distance while trailing blood before collapsing. The witness saw the car back
away from the pole and drive next to Amos, and he heard another shot, before the
car drove away. Amos had suffered a mortal gunshot wound. However, before
dying, he said that Maurice Freeman had shot him.
The grand jury indicted Freeman on two counts of aggravated murder
with two firearm specifications, one count of aggravated robbery, and one count of
having a weapon while under disability. Before trial, the second count of aggravated
murder was nolled. The jury convicted him of aggravated murder but found him not
guilty of aggravated robbery. Freeman had agreed to try the weapons charge to the
judge. State v. Freeman, 8th Dist. Cuyahoga No. 80720, 2002-Ohio-4572.
After the jury trial, the trial judge and the attorneys were discussing
sentencing. The following discourse ensued:
[The prosecuting attorney]: Your Honor, there’s the issue of the weapons
while under disability.
The Court: Yes. With respect to Count 4, the case was tried to myself, having
the weapon under disability count, and I, in fact, find the defendant guilty of
that charge. He will be sentenced on that case as well.
All right. Anything further on behalf of either the State or the defense:
[The prosecuting attorney]: No, your Honor.
[Defense attorney]: No, your Honor.
(Tr. 788-789.)
The trial court sentenced Freeman to three years on the firearm
specifications, 20 years to life on the aggravated murder charge, and one year
concurrent on the weapons charge.
In the ensuing 20 years, Freeman has filed appeals, habeas corpus
petitions, an App.R. 26(B) application to reopen, and postconviction relief petitions.
In his April 2020 postconviction petition he contested the conviction for having a
weapon while under disability. He argued, inter alia, that he was not allowed
appointed counsel during the trial for the weapons charge. He framed this argument
as follows: his counsel was not allowed to present argument or evidence, the count
was improperly numbered and thus void, he was not allowed a jury trial, and the
trial court rendered the verdict at an improper moment in the trial. In Ohio v.
Freeman, 8th Dist. Cuyahoga No. 109744, 2012-Ohio-1489, this court held that
these claims were, once again, meritless. It ruled that “Freeman was arraigned on
these charges on August 9, 2001, at which time he was appointed counsel who
continued to represent him throughout the pretrial and trial process and through
conviction.” Id. at ¶ 16. Freeman now tries to resurrect this argument in the
framework of mandamus and prohibition.
LEGAL ANALYSIS
The principles governing prohibition are well established. Its requisites
are (1) the respondent against whom it is sought is about to exercise judicial power,
(2) the exercise of such power is unauthorized by law, and (3) there is no adequate
remedy at law. State ex rel. Largent v. Fisher, 43 Ohio St.3d 160, 540 N.E.2d 239(1989). Furthermore, if a petitioner had an adequate remedy, relief in prohibition
is precluded, even if the remedy was not used. State ex rel. Lesher v. Kainrad, 65
Ohio St.2d 68, 417 N.E.2d 1382 (1981). Prohibition will not lie unless it clearly
appears that the court has no jurisdiction of the cause that it is attempting to
adjudicate or the court is about to exceed its jurisdiction. State ex rel. Ellis v.
McCabe, 138 Ohio St. 417, 35 N.E.2d 571 (1941), paragraph three of the syllabus.
“The writ will not issue to prevent an erroneous judgment, or to serve the purpose
of appeal, or to correct mistakes of the lower court in deciding questions within its
jurisdiction.” State ex rel. Sparto v. Juvenile Court of Darke Cty., 153 Ohio St. 64,
65, 90 N.E.2d 598 (1950). Furthermore, it should be used with great caution and
not issue in a doubtful case. State ex rel. Merion v. Tuscarawas Cty. Court of
Common Pleas, 137 Ohio St. 273, 28 N.E.2d 641 (1940); and Reiss v. Columbus
Mun. Court, 76 Ohio Law Abs. 141, 145 N.E.2d 447 (10th Dist.1956). Nevertheless,
when a court is patently and unambiguously without jurisdiction to act whatsoever,
the availability or adequacy of a remedy is immaterial to the issuance of a writ of
prohibition. State ex rel. Tilford v. Crush, 39 Ohio St.3d 174, 529 N.E.2d 1245(1988). However, absent such a patent and unambiguous lack of jurisdiction, a
court having general jurisdiction of the subject matter of an action has authority to
determine its own jurisdiction. A party challenging the court’s jurisdiction has an
adequate remedy at law via an appeal from the court’s holding that it has
jurisdiction. State ex rel. Rootstown Local School Dist. Bd. of Edn. v. Portage Cty.
Court of Common Pleas, 78 Ohio St.3d 489, 678 N.E.2d 1365 (1997). Moreover, this
court has discretion in issuing the writ of prohibition. State ex rel. Gilligan v.
Hoddinott, 36 Ohio St.2d 127, 304 N.E.2d 382 (1973).
The requisites for mandamus are well established: (1) the relator must
have a clear legal right to the requested relief, (2) the respondent must have a clear
legal duty to perform the requested relief, and (3) there must be no adequate remedy
at law. Additionally, although mandamus may be used to compel a court to exercise
judgment or to discharge a function, it may not control judicial discretion, even if
that discretion is grossly abused. State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118,
515 N.E.2d 914 (1987). Furthermore, mandamus is not a substitute for appeal. State
ex rel. Daggett v. Gessaman, 34 Ohio St.2d 55, 295 N.E.2d 659 (1973); State ex rel.
Pressley v. Indus. Comm. of Ohio, 11 Ohio St.2d 141, 228 N.E.2d 631 (1967),
paragraph three of the syllabus. Thus, mandamus does not lie to correct errors and
procedural irregularities in the course of a case. State ex rel. Jerninghan v.
Gaughan, 8th Dist. Cuyahoga No. 67787, 1994 Ohio App. LEXIS 6227 (Sept. 26,
1994). Furthermore, if the relator had an adequate remedy, regardless of whether it
was used, relief in mandamus is precluded. State ex rel. Tran v. McGrath, 78 Ohio
St.3d 45, 676 N.E.2d 108 (1997); State ex rel. Boardwalk Shopping Ctr., Inc. v.
Court of Appeals for Cuyahoga Cty., 56 Ohio St.3d 33, 564 N.E.2d 86 (1990).
Moreover, mandamus is an extraordinary remedy that is to be exercised with
caution and only when the right is clear. It should not issue in doubtful cases. State
ex rel. Taylor v. Glasser, 50 Ohio St.2d 165, 364 N.E.2d 1 (1977).
In Johnson v. Zerbst, supra, the defendant was convicted of uttering
counterfeit money, and he never had counsel during the proceedings. In reversing
the conviction, the United States Supreme Court held that “[a] court’s jurisdiction
at the beginning of trial may be lost ‘in the course of the proceedings’ due to failure
to complete the court — as the Sixth Amendment requires — by providing counsel
for an accused who is unable to obtain counsel, who has not intelligently waived this
constitutional guaranty, and whose life or liberty is at stake.” 304 U.S. 458, 468, 58
S.Ct. 1019, 82 L.Ed.2d 1461 (1938).
In State ex rel. Ogle, supra, the defendant had counsel during the trial
and she was convicted of assaulting a peace officer. However, after trial the judge
placed her on house arrest and ordered her to have no contact, direct or indirect,
with any juror, witness, lawyer, or court. Thus, she did not have counsel at the
sentencing, but she explicitly did not waive her right to counsel. Nevertheless, the
trial court sentenced her. Approximately nine years after her conviction, Ogle
brought claims for mandamus and prohibition to vacate the sentencing entry
because the trial court lacked jurisdiction. The court of appeal dismissed the writ
action because the trial court had general jurisdiction over the case and appeal was
an adequate remedy at law precluding the writs. The Supreme Court of Ohio
followed Zerbst, and held that depriving a defendant of counsel would divest the
trial court of jurisdiction or at least be a structural error as to demand reversal.
Thus, the Supreme Court reversed the dismissal and remanded the writ action for
further proceedings. 167 Ohio St.3d 181, 2021-Ohio-4453, 190 N.E.2d 594.
Freeman now argues that the summary manner in which the trial court
resolved the weapons while under disability charge deprived him of his right to
counsel and thus divested the trial court of jurisdiction over that charge. Mandamus
or prohibition will issue if there is a complete lack of jurisdiction, notwithstanding
the availability of appeal. Ogle at ¶ 21; and State ex rel. State Farm Mut. Ins. Co. v.
O’Donnell, 163 Ohio St.3d 541, 2021-Ohio-1205, 171 N.E.3d 321, ¶ 8.
However, as previously stated by this court and unlike Zerbst and
Ogle, Freeman had counsel throughout the entire proceedings, including during the
judge’s resolution of the weapons charge. In fact, the trial court solicited the input
of defense counsel immediately after announcing the decision. This court rules that
the trial court in the handling of the weapons charge did not deprive Freeman of his
right to counsel and thus did not divest the trial court of jurisdiction over the charge,
despite however Freeman protests otherwise.
Because the trial court did not lose jurisdiction over the charge, all of
the other principles regarding writs remain effective, such as having or had an
adequate remedy at law and that res judicata precludes arguments that were or
could have been made. Brooks v. Kelly, 144 Ohio St.3d 322, 2015-Ohio-2805, 43
N.E.3d 385.
Accordingly, this court grants the respondent’s dispositive motion and
denies this application for writs of mandamus and prohibition. Relator to pay costs.
This court directs the clerk of courts to serve all parties notice of the judgment and
its date of entry upon the journal as required by Civ.R. 58(B).
Writs denied.
_________________________
EILEEN T. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
EMANUELLA D. GROVES, J., CONCUR