State ex rel. Page v. Phipps , 2020 Ohio 5487 ( 2020 )

[Cite as State ex rel. Page v. Phipps, 2020-Ohio-5487.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Nagui Page, :
Relator, :
No. 19AP-347
v. :
(REGULAR CALENDAR)
Honorable Karen Held Phipps, :
Judge, Franklin County Common
Pleas Court, General Division, :
Respondent. :
D E C I S I O N
Rendered on December 1, 2020
On brief: Nagui Page, pro se.
On brief: Ron O'Brien, Prosecuting Attorney, and Bryan B.
Lee, for respondent.
IN MANDAMUS
ON MOTION TO DISMISS
BROWN, J.
{¶ 1} Relator, Nagui Page, has filed an original action requesting this court issue a
writ of mandamus ordering respondent, the Honorable Karen Held Phipps, a judge of the
Franklin County Court of Common Pleas, to grant additional expenses for relator to fund
expert services at the state's expense in his pending criminal case in Franklin C.P. No.
18CR-626. Respondent has filed a motion to dismiss the petition, asserting relator has an
adequate remedy at law by way of an appeal after final judgment is entered in the
underlying criminal proceeding.
{¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53
and Loc.R. 13(M) of the Tenth District Court of Appeals. On April 22, 2020, the magistrate
issued the appended decision, including findings of fact and conclusions of law,
recommending this court grant respondent's motion to dismiss and deny the petition on
No. 19AP-347 2
the basis that relator has an adequate remedy in the ordinary course of law that precludes
a writ of mandamus. No objections have been filed to that decision.
{¶ 3} Finding no error or other defect on the face of the magistrate's decision, we
adopt the decision of the magistrate as our own, including the findings of fact and
conclusions of law. In accordance with the magistrate's recommendation, we grant
respondent's motion to dismiss and deny relator's request for a writ of mandamus.
Motion to dismiss granted; writ of mandamus denied.
KLATT and BEATTY BLUNT, JJ., concur.
___________________
No. 19AP-347 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Nagui Page, :
Relator, :
v. : No. 19AP-347
Honorable Karen Held Phipps, : (REGULAR CALENDAR)
Judge, Franklin County Common
Pleas Court, General Division, :
Respondent. :
MAGISTRATE'S DECISION
Rendered on April 22, 2020
Nagui Page, pro se.
Ron O'Brien, Prosecuting Attorney, and Bryan B. Lee, for
respondent.
IN MANDAMUS
ON RESPONDENT'S MOTION TO DISMISS
{¶ 4} Relator, Nagui Page, has filed this original action requesting this court issue
a writ of mandamus ordering respondent, the Honorable Karen Held Phipps, judge of the
Franklin County Court of Common Pleas, to order and grant additional expenses for relator
to fund expert services at state's expense in his criminal case, C.P. No. 18CR-626.
Findings of Fact:
{¶ 5} 1. Relator is charged in the Franklin County Court of Common Pleas with
felonious assault, abduction, and violating a protective order.
No. 19AP-347 4
{¶ 6} 2. Concerned that the state might call a police officer to testify (in conjunction
with the observations of another witness) about certain physical indicia of strangulation
based on concepts learned at a law enforcement seminar, relator filed motions in liminie to
prohibit the testimony of a Columbus Police Department officer and to disqualify the state's
expert police witness from testifying.
{¶ 7} 3. Based on relator's representations, the trial court indicated that a detective
may offer his layman's opinion pursuant to Ohio Evid.R. 701.
{¶ 8} 4. The following month, relator requested authorization and funding to hire
an expert who would be willing to consult with the defense to rebut any purported
testimony from a Columbus police officer.
{¶ 9} 5. The trial court authorized payment up to $1,500 and noted that the defense
could seek additional amounts.
{¶ 10} 6. After relator posted bond and was released from confinement, the trial
court determined that he was no longer indigent and that no further funds would be
approved for the defense expert.
{¶ 11} 7. In a decision and entry dated May 28, 2019, the trial court denied relator’s
motions for funding.
{¶ 12} 8. On May 29, 2019, relator filed a notice of appeal from the denial of expert
funding.
{¶ 13} 9. The same day, relator filed this mandamus action to compel the trial court
to provide him with adequate funding to enable him to rebut the testimony of the Columbus
police officer.
{¶ 14} 10. The magistrate held relator's mandamus action in abeyance during the
pendency of his appeal.
{¶ 15} 11. Finding that relator had not appealed from a final appealable order, this
court granted the state's motion and dismissed his appeal for want of jurisdiction. State v.
Page, 10th Dist. No. 19AP-346, 2020-Ohio-816, rendered March 5, 2020.
{¶ 16} 12. In this mandamus case, respondent filed a motion to dismiss on
November 21, 2019. Respondent argues that relator has an alternate remedy at law by way
of appeal at the conclusion of his criminal case.
{¶ 17} 13. Relator filed a memorandum contra arguing that his ability to appeal at
the conclusion of his criminal case is not an adequate remedy at law because he could be
confined unjustly for a substantial period of time before succeeding on appeal. Citing State
No. 19AP-347 5
v. Collins, 24 Ohio St.2d 107 (1970), relator argues any time of incarceration would
represent unacceptable breach of justice.
{¶ 18} 14. The matter is currently before the magistrate on respondent's motion to
dismiss and relator's memorandum contra.
Conclusions of Law:
{¶ 19} For the reasons that follow, it is this magistrate's decision that this court
should grant respondent's motion and deny relator's request for a writ of mandamus.
{¶ 20} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course of
the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
{¶ 21} Relator acknowledges that he has a right to challenge the trial court's action
in an appeal. Although relator acknowledges he has an alternative remedy in the ordinary
course of the law which would render him ineligible for a writ of mandamus, he argues that
alternative remedy in the ordinary course of the law is not adequate.
{¶ 22} Relator cites a paragraph from the Supreme Court of Ohio's decision in
Collins. In Collins, the question presented to the court was whether the state, in a criminal
case, may prosecute an appeal from an order granting a defendant's pre-trial motion to
suppress evidence. The court considered the jurisdiction of the Court of Appeals and
legislation enacted by the general assembly and then considered similar cases from court's
in other states. Thereafter, the court noted there are only four delineated instances wherein
the state can appeal in a criminal case, and noted that the state is in a position distinctly
different from that of an accused. Specifically, if a defendant's motion to suppress evidence
is overruled, the defendant may challenge the correctness of that order in appellate
proceedings following the conviction. Although the court did find that the granting of a
defendant's motion to suppress evidence was a final order, that order was not appealable
because of the exclusive nature of R.C. 2945.70.
{¶ 23} In the middle of the court's decision as the court was wrestling with the issue
at hand, the court considered whether or not it was fair to the issues to permit the state to
appeal from the granting of a defendant's motion to suppress evidence. In that regard, the
court stated:
No. 19AP-347 6
A further and most persuasive distinction between the four
procedural devices set forth in R. C. 2945.70 and a motion to
suppress evidence is the present complete absence of legal
guidelines in this state regarding the status of an accused,
pending appellate determination of the propriety of the order
of suppression. An unbonded accused, under present law,
would spend months and perhaps years behind bars while
the efficacy of the state's appeal was determined. If the
sustaining of the motion was eventually upheld and the
accused then released from custody, a reasonable person
would be hard pressed to offer any excuse for such a failure
of our judicial system to move with constitutional swiftness
and fairness in maintaining the essential balance between
society and those charged with crime. If the sustaining of the
motion were reversed upon appeal, but the defendant later
won acquittal, those months or years of incarceration would
represent an equally unacceptable breach of justice.1
(Emphasis added.) Id. at 112.
{¶ 24} The court's decision in Collins explains why the state cannot appeal from a
court decision to grant a criminal defendant’s motion to suppress evidence–it would unduly
delay a determination of guilt or innocence. Contrary to relator's assertion, the Collins case
does not require this court grant a writ of mandamus here so he can challenge the denial of
his motion for funds. As this court stated in relator's appeal, at this point in time, no one
knows whether or not the police officer will testify nor does anyone know about what that
officer would testify. Further, while relator is currently considered not indigent because he
was able to post bond and is no longer incarcerated, it is conceivable that he could present
evidence that he is indigent and therefore the question would come before the court again.
At this time, relator's request for writ of mandamus is, at best, premature. Further, as this
court stated in dismissing relator's appeal, relator does have an adequate remedy in the
ordinary course of the law by way of appeal.
{¶ 25} Because relator has an alternative remedy in the ordinary course of the law,
relator cannot establish that he is entitled to a writ of mandamus. As such, this court should
grant respondent's motion and dismiss relator's case.
/S/ MAGISTRATE
STEPHANIE BISCA
1 This is the paragraph upon which relator relies.
No. 19AP-347 7
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
unless the party timely and specifically objects to that factual
finding or legal conclusion as required by Civ.R. 53(D)(3)(b).