State ex rel. Zander v. Judge of Summit Cty. Common Pleas Court (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Zander v. Judge of Summit Cty. Common Pleas Court, Slip Opinion No. 2019-Ohio-1704.]
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2019-OHIO-1704
THE STATE EX REL. ZANDER, APPELLANT, v. JUDGE OF SUMMIT COUNTY
COMMON PLEAS COURT, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Zander v. Judge of Summit Cty. Common Pleas
Court, Slip Opinion No. 2019-Ohio-1704.]
Mandamus—Prohibition—Appellant had adequate remedy at law by appeal—
Court of appeals’ dismissal of complaint affirmed.
(No. 2018-1198—Submitted February 19, 2019—Decided May 8, 2019.)
APPEAL from the Court of Appeals for Summit County, No. 29035.
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Per Curiam.
{¶ 1} Appellant, David J. Zander, appeals the Ninth District Court of
Appeals’ dismissal of his complaint for writs of mandamus and prohibition against
an unnamed judge of the Summit County Court of Common Pleas. We affirm.
{¶ 2} In 2009, Zander was found guilty of aggravated murder. State v.
Zander, Summit C.P. No. CR-2008-08-2815-B. Although he was charged under
SUPREME COURT OF OHIO
R.C. 2903.01(B), which requires that the death occurred during the commission of
an underlying felony, the jury acquitted Zander of the alleged underlying felony
(aggravated robbery). He therefore alleged that the law required him to be acquitted
of aggravated murder.
{¶ 3} On July 18, 2018, the court of appeals granted the Summit County
Common Pleas Court’s motion to dismiss under Civ.R. 12(B)(6) for failure to state
a claim upon which relief can be granted. Zander appealed.
{¶ 4} To be entitled to a writ of mandamus, the relator must establish, by
clear and convincing evidence, (1) a clear legal right to the requested relief, (2) a
clear legal duty on the part of the respondent to provide it, and (3) the lack of an
adequate remedy in the ordinary course of the law. State ex rel. Love v. O’Donnell,
150 Ohio St. 3d 378, 2017-Ohio-5659, 81 N.E.3d 1250, ¶ 3. For a court to dismiss
a mandamus complaint pursuant to Civ.R. 12(B)(6), it must appear beyond doubt
from the complaint that the relator can prove no set of facts warranting relief, after
all factual allegations of the complaint are presumed true and all reasonable
inferences are made in the relator’s favor. State ex rel. Natl. Elec. Contrs. Assn.,
Ohio Conference v. Ohio Bur. of Emp. Servs., 83 Ohio St. 3d 179, 181, 699 N.E.2d
64 (1998). This court reviews a dismissal under Civ.R. 12(B)(6) de novo. State ex
rel. Brown v. Nusbaum, 152 Ohio St. 3d 284, 2017-Ohio-9141, 95 N.E.3d 365,
¶ 10.
{¶ 5} An inmate alleging an inconsistent-verdicts claim has an adequate
remedy at law by appeal to raise the issue. Drake v. Tyson-Parker, 101 Ohio St. 3d
210, 2004-Ohio-711, 803 N.E.2d 811, ¶ 5 (affirming denial of relief in habeas
corpus). Indeed, Zander admits in his complaint that he did appeal his conviction,
and he unsuccessfully raised an inconsistent-verdicts argument in that appeal. See
State v. Zander, 9th Dist. Summit No. 24706, 2010-Ohio-631, ¶ 54. The
extraordinary remedy of mandamus is not available when the petitioner has or had
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January Term, 2019
an adequate remedy by way of appeal. Thompson v. Donnelly, 155 Ohio St. 3d 184,
2018-Ohio-4073, 119 N.E.3d 1292, ¶ 6.
{¶ 6} Zander argues that mandamus should be available because his
conviction is void. A void judgment is one that is entered by a court that lacks
subject-matter jurisdiction. State v. Apanovitch, __ Ohio St.3d __, 2018-Ohio-
4744, __ N.E.3d __, ¶ 42. The United States Supreme Court has long recognized
that “ ‘[c]onsistency in the verdict is not necessary,’ ” United States v. Powell, 469
U.S. 57, 62, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984), quoting Dunn v. United States,
284 U.S. 390, 393, 52 S. Ct. 189, 76 L. Ed. 356 (1932), and that “there is no reason
to vacate [a] conviction merely because the verdicts cannot rationally be
reconciled,” id. at 69. And if inconsistent verdicts may be sustained, then there is
no basis for concluding that a court entering judgment on inconsistent verdicts lacks
jurisdiction to do so. Zander’s mandamus complaint failed to state a claim and was
correctly dismissed.
{¶ 7} For the same reason, Zander also has failed to state a claim for relief
in prohibition. There are three elements necessary for a writ of prohibition to issue:
(1) the exercise of judicial power, (2) the lack of authority for the exercise of that
power, and (3) the lack of an adequate remedy in the ordinary course of the law for
the injury that would result from denial of the writ. State ex rel. Elder v. Camplese,
144 Ohio St. 3d 89, 2015-Ohio-3628, 40 N.E.3d 1138, ¶ 13. As discussed above,
Zander’s allegations make clear that the Summit County Common Pleas Court did
not lack authority to exercise judicial power, and Zander had an adequate remedy
in the ordinary course of the law. The court of appeals correctly dismissed his
prohibition claim.
Judgment affirmed.
O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
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SUPREME COURT OF OHIO
David J. Zander, pro se.
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Colleen
Sims, Assistant Prosecuting Attorney, for appellee.
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