State ex rel. Bevins v. Cooper (Slip Opinion) , 150 Ohio St. 3d 22 ( 2016 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Bevins v. Cooper, Slip Opinion No. 2016-Ohio-5578.]
NOTICE
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2016-OHIO-5578
THE STATE EX REL. BEVINS, APPELLANT, v. COOPER, JUDGE, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Bevins v. Cooper, Slip Opinion No.
2016-Ohio-5578.]
Mandamus—Adequate remedy at law—Dismissal of writ seeking final, appealable
order affirmed.
(No. 2015-1615—Submitted May 3, 2016—Decided August 31, 2016.)
APPEAL from the Court of Appeals for Hamilton County, No. C-150507.
_____________________
Per Curiam.
{¶ 1} We affirm the First District Court of Appeals’ dismissal of the petition
for a writ of mandamus filed by appellant, Andrew Bevins Jr. Bevins seeks a writ
ordering the trial judge who declared a mistrial in his criminal case to issue a final,
appealable order journalizing the decision to declare a mistrial. The court of
appeals correctly dismissed the petition.
SUPREME COURT OF OHIO
{¶ 2} Bevins was charged with and eventually convicted of aggravated
burglary and rape. State v. Bevins, 1st Dist. Hamilton, No. C-050754, 2006-Ohio-
6974, ¶ 1 (affirming Bevins’s convictions on direct appeal but remanding for
resentencing). The convictions were the result of a 2005 trial, following a 2003
mistrial. State ex rel. Bevins v. Cooper, 138 Ohio St. 3d 275, 2014-Ohio-544, 6
N.E.3d 33, ¶ 2 (affirming the First District’s dismissal of a petition seeking a writ
of mandamus ordering Bevins’s immediate release or a new trial). Respondent,
Judge Ethna M. Cooper, presided over the mistrial and the retrial.
{¶ 3} On August 19, 2015, Judge Cooper issued an order denying Bevins’s
“Motion to Issue a Final Appealable Order and to Vacate a Void Judgment.”
Bevins filed his petition for a writ of mandamus in the First District Court of
Appeals on August 31. That court granted Judge Cooper’s motion to dismiss the
petition on September 16. On October 2, Bevins appealed that decision to this
court.
{¶ 4} To be entitled to a writ of mandamus, Bevins must establish a clear
legal right to the requested relief, a clear legal duty on the part of Judge Cooper 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.
{¶ 5} The court of appeals was correct in dismissing Bevins’s petition.
Bevins could have appealed Judge Cooper’s denial of his motion for a final,
appealable order, and thus he had available an adequate remedy in the ordinary
course of the law. State ex rel. Ward v. Reed, 141 Ohio St. 3d 50, 2014-Ohio-4512,
21 N.E.3d 303, ¶ 12 (“An appeal is an adequate remedy in the ordinary course of
law that precludes an action for mandamus or procedendo”), citing State ex rel.
Crabtree v. Franklin Cty. Bd. of Health, 77 Ohio St. 3d 247, 250, 673 N.E.2d 1281
(1997), and State ex rel. Sevayega v. McMonagle, 122 Ohio St. 3d 54, 2009-Ohio-
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January Term, 2016
2367, 907 N.E.2d 1180, ¶ 1. We therefore affirm the judgment of the court of
appeals.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
_________________
Andrew Bevins Jr., pro se.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M.
Heenan, Assistant Prosecuting Attorney, for appellee.
_________________
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