State ex rel. Keith v. Gaul (Slip Opinion) , 147 Ohio St. 3d 270 ( 2016 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Keith v. Gaul, Slip Opinion No. 2016-Ohio-5566.]
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SLIP OPINION NO. 2016-OHIO-5566
THE STATE EX REL. KEITH, APPELLANT, v. GAUL, JUDGE, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Keith v. Gaul, Slip Opinion No. 2016-Ohio-5566.]
Writ of mandamus—Ruling sought on motion for leave to file a delayed motion for
new trial—Mandamus will not issue to compel a vain act—Judgment
affirmed.
(No. 2015-1483—Submitted April 5, 2016—Decided August 30, 2016.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 102875,
2015-Ohio-3480.
_____________________
Per Curiam.
{¶ 1} We affirm the judgment of the court of appeals that denied the petition
for a writ of mandamus filed by appellant, Jeffrey Keith. Keith filed numerous
motions for a new trial in various criminal proceedings in which he was a defendant.
After a long procedural history, in 2015, Keith petitioned the Cuyahoga County
Court of Appeals to order the original judge on his case, Judge Daniel Gaul, to rule
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on Keith’s 2002 motion for leave to file a delayed motion for a new trial. Judge
Gaul had been assigned to the case when Keith filed this petition. The court of
appeals granted the motion for summary judgment of Judge Joseph D. Russo, who
is now assigned to the case, holding that the issues asserted in Keith’s motion for
leave to file a delayed motion for new trial had already been decided, and thus,
granting the motion would be a vain act.
{¶ 2} We affirm and, as we have already denied jurisdiction in Supreme
Court case No. 2015-1414, his motion to consolidate this case with that one is
denied as moot.
Facts
{¶ 3} Keith was found guilty of arson and grand theft in 1995 in Cuyahoga
Court of Common Pleas case No. CR-316724, presided over by appellee Judge
Gaul. Judge Gaul sentenced Keith to 15 to 25 years’ imprisonment. In July 1995,
Keith filed a notice of appeal with the Eighth District Court of Appeals. In April
1996, while the appeal was pending, an entry was journalized in the common pleas
court indicating that the Supreme Court of Ohio had assigned Judge Joseph
Cirigliano to handle this case. The entry was erroneous, as the Supreme Court had
made no such assignment. On October 28, 1996, a correction was docketed: “The
above case CR 316724 was heard and disposed of by Judge Daniel Gaul. This case
should not have been assigned to Judge Joseph E. Cirigliano.” The next year,
Keith’s convictions and sentence were affirmed on appeal. State v. Keith, 8th Dist.
Cuyahoga No. 69267, 1997 WL 113755 (Mar. 13, 1997).
{¶ 4} Case No. CR-316724 was one of three criminal cases in which Keith
had been found guilty and sentenced to prison. Judge Joseph Cirigliano had
presided over the other two. See State v. Keith, 8th Dist. Cuyahoga No. 72275,
1998 WL 742172 (Oct. 22, 1998), and State v. Keith, 8th Dist. Cuyahoga Nos.
76469, 76479, and 76610, 2000 WL 1176886 (Aug. 17, 2000).
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January Term, 2016
{¶ 5} In January 2002, Keith moved for leave to file a delayed motion for a
new trial in case No. CR-316724. Keith supported his motion by attaching news
articles and affidavits. Keith alleged corruption in Cuyahoga County and illegal
judge shopping. The state moved to dismiss Keith’s motion.
{¶ 6} Judge Cirigliano granted the state’s motion to dismiss. Keith
appealed. From April 2002 through December 26, 2002, while his appeal was
pending, Keith filed numerous pro se motions in the trial court in this case, seeking
a new trial, appointment of a new judge, and other relief, often based on the same
arguments made in the January 2002 motion. In December 2002, the court of
appeals dismissed Keith’s appeal from Judge Cirigliano’s judgment, holding that
Judge Cirigliano had had no authority to issue an order in the case, because he had
not been assigned to it. State v. Keith, 8th Dist. Cuyahoga No. 81125, 2002-Ohio-
7250, ¶ 4, 8.
{¶ 7} Judge Russo was assigned the case in October 2006. In 2008, Keith
filed motions for leave to file a delayed motion for a new trial and for other relief.
All motions were denied.
{¶ 8} In particular, the court of appeals dismissed Keith’s appeal on a 2008
motion. State v. Keith, 8th Dist. Cuyahoga, Nos. 102106, 102017, 102108, 2015-
Ohio-2401, 2015 WL 3819502 (June 18, 2015), stating that Keith had exhausted
all appeals, and his “subsequent assertions of claims against valid final judgments
of convictions involve issues that have been, could have been, or should have been
raised on appeal and, therefore, are barred by the doctrine of res judicata.” Id. at
¶ 21.
{¶ 9} On April 10, 2015, Keith filed a petition for writ of mandamus asking
the court of appeals to compel Judge Daniel Gaul to issue a ruling on his 2002
motion for leave to file a delayed motion for a new trial. Judge Russo filed a motion
for summary judgment. The Eighth District granted Judge Russo’s motion. State
ex rel. Keith v. Gaul, 8th Dist. Cuyahoga, No. 102875, 2015-Ohio-3480. The court
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of appeals held that issuing a writ ordering a ruling would be a vain act. “Because
the issue of the denial of a delayed motion for new trial has been previously
determined to be without merit in numerous appeals filed by Keith, we find that the
doctrine of law of the case prevents further litigation of the issue.” Id. at ¶ 11.
{¶ 10} Keith appealed to this court as of right.
Analysis
Motion to consolidate
{¶ 11} Keith moved to consolidate this case with his appeal of the trial
court’s denials of his motions to vacate void judgments. We have already declined
jurisdiction. 144 Ohio St. 3d 1409, 2015-Ohio-4947, 41 N.E.3d 1409. We therefore
deny the motion as moot.
Mandamus
{¶ 12} To be entitled to extraordinary relief in mandamus, Keith must
establish a clear legal right to the requested relief, a clear legal duty on the part of
Judge Russo1 to provide it, and the lack of an adequate remedy in the ordinary
course of the law. State ex rel. Waters v. Spaeth, 131 Ohio St. 3d 55, 2012-Ohio-
69, 960 N.E.2d 452, ¶ 6. Keith must prove that he is entitled to the writ by clear
and convincing evidence. Id. at ¶ 13.
{¶ 13} The Court of Appeals properly dismissed Keith’s petition for a writ
of mandamus. The court of appeals has considered and dismissed Keith’s claim for
a new trial on multiple occasions:
“Simply put, Keith exhausted his direct appeal rights in Keith I,
[State v. Keith, 8th Dist. Cuyahoga No. 69267, 1997 WL 113755
(Mar. 13, 1997)] Keith II, [State v. Keith, 8th Dist. Cuyahoga No.
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Keith appears to believe that Judge Gaul is still assigned to his case and should respond to his 2002
motion. However, Judge Russo was properly assigned to the case in 2006.
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January Term, 2016
72275, 1998 WL 742172 (Oct. 22, 1998)] and Keith III [State v.
Keith, 8th Dist. Cuyahoga Nos. 76469, 76479, 76610, 2000 WL
1176886 (Aug. 17, 2000)]. His subsequent assertions of claims
against valid final judgments of convictions involve issues that have
been, could have been, or should have been raised on appeal and,
therefore, are barred by the doctrine of res judicata. State v.
Ketterer, 126 Ohio St. 3d 448, 2010–Ohio–3831, 935 N.E.2d 9, ¶ 59,
citing State v. Perry, 10 Ohio St. 2d 175, 226 N.E.2d 104 (1967),
paragraph nine of the syllabus.”
State ex rel. Keith v. Gaul, 8th Dist. Cuyahoga No. 102875, 2015-Ohio-3480, ¶ 10,
quoting State v. Keith, 8th Dist. Cuyahoga Nos. 102106, 102107, 102108, 2015-
Ohio-2401, ¶ 21.
{¶ 14} The court of appeals correctly recognized that the claims put forth in
Keith’s 2002 motion have been ruled on and found wanting. 2015-Ohio-3480,
¶ 10, citing 2015-Ohio-2401, ¶ 21. The doctrine of law of the case prevents any
future court from deciding otherwise. “ ‘[T]he doctrine [of the law-of-the-case]
provides that the decision of a reviewing court in a case remains the law of that case
on the legal questions involved for all subsequent proceedings in the case at both
the trial and reviewing levels.’ ” State ex rel. Cleveland v. Astrab, 139 Ohio St. 3d
445, 2014-Ohio-2380, 12 N.E.3d 1197, ¶ 21, quoting Nolan v. Nolan, 11 Ohio St. 3d
1, 3–4, 462 N.E.2d 410 (1984). “ ‘Where “a trial court is confronted with
substantially the same facts and issues as were involved in the prior appeal, the
court is bound to adhere to the appellate court’s determination of the applicable
law. Moreover, the trial court is without authority to extend or vary the mandate
given.’ ” Id.
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{¶ 15} Thus, if the court of appeals or this court issues a writ ordering Judge
Russo to rule on Keith’s January 2002 motion, Judge Russo will be “bound to
adhere to the appellate court’s determination” of the issues raised in that motion.
{¶ 16} And because Judge Russo is so bound, ordering him to rule on the
motion would be a vain act. Mandamus will not issue to compel a vain act. State
ex rel. Bona v. Orange, 85 Ohio St. 3d 18, 22, 706 N.E.2d 771(1999), citing State
ex rel. Thomas v. Ghee, 81 Ohio St. 3d 191, 192, 690 N.E.2d 6, (1998).
Conclusion
{¶ 17} Because a ruling on Keith’s 2002 motion would be constrained by
the law-of-the-case doctrine, issuing a writ ordering such a ruling would be a vain
act. Mandamus will not issue to compel a vain act.
{¶ 18} We therefore affirm the judgment of the court of appeals. We also
deny the motion to consolidate.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
_________________
Jeffrey Keith, pro se.
Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and James
E. Moss, Assistant Prosecuting Attorney, for appellee.
_________________
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