State ex rel. Penland v. Dinkelacker (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Penland v. Dinkelacker, Slip Opinion No. 2020-Ohio-3774.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2020-OHIO-3774
THE STATE EX REL. PENLAND v. DINKELACKER, JUDGE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Penland v. Dinkelacker, Slip Opinion No.
2020-Ohio-3774.]
Mandamus—Inmate had adequate remedy at law to raise on direct appeal trial
court’s failure to issue findings of fact and conclusions of law—A judgment
granting or denying postconviction relief is a final, appealable order even
if it does not include findings of fact and conclusions of law—State v.
Mapson and State ex rel. Ferrell v. Clark overruled—Writ denied.
(No. 2020-0027—Submitted March 10, 2020—Decided July 22, 2020.)
IN MANDAMUS.
__________________
DEWINE, J.
{¶ 1} Alex Penland filed two petitions for postconviction relief in the trial
court. The court denied the petitions without making findings of fact and
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conclusions of law. Penland appealed the trial court’s judgments, and they were
affirmed on appeal.
{¶ 2} Penland then instituted this original mandamus action, asking this
court to order the trial-court judge to issue findings of fact and conclusions of law.
He contends that under this court’s decision in State ex rel. Ferrell v. Clark, 13
Ohio St. 3d 3, 469 N.E.2d 843 (1984), the trial court’s judgments did not constitute
final, appealable orders because they lacked findings and that therefore, the court
of appeals’ decision is void for lack of jurisdiction and he is entitled to another
appeal. See also State v. Mapson, 1 Ohio St. 3d 217, 438 N.E.2d 910 (1982)
(followed in Ferrell). As we explain below, our decisions in Mapson and Ferrell
do not support his claim. Because the trial court’s judgments have already been
reviewed on direct appeal, Penland had an adequate remedy at law to address the
lack-of-findings issue, which precludes mandamus relief. We therefore deny the
writ.
{¶ 3} Additionally, we take this opportunity to clarify that a trial court’s
failure to issue findings of fact and conclusions of law with respect to a judgment
denying postconviction relief is an error that may be corrected through an appeal,
not a defect depriving the appellate court of jurisdiction over the appeal. To the
extent that Mapson and Ferrell hold that a petitioner seeking postconviction relief
may not appeal an adverse judgment unless the judgment entry contains findings of
fact and conclusions of law, those decisions are overruled.
Penland had an adequate remedy at law
{¶ 4} Penland is currently serving prison sentences for multiple crimes. He
alleges that he timely filed two petitions for postconviction relief in September
2016 and that Hamilton County Court of Common Pleas Judge Patrick Dinkelacker
summarily overruled them without making findings of fact or conclusions of law,
as required by R.C. 2953.21(H). Penland appealed the trial court’s denials of his
petitions. The First District Court of Appeals did not dismiss his appeals for lack
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of a final order; rather, it proceeded to consider the merits of his appeals and
affirmed the trial court’s judgments.1 State v. Penland, 1st Dist. Hamilton Nos. C-
160820 and C-160797, 2018 Ohio App. LEXIS 880, *2 (Mar. 7, 2018). Penland
took a further appeal to this court, and we declined to accept his case. 153 Ohio
St.3d 1433, 2018-Ohio-2639, 101 N.E.3d 465.
{¶ 5} Penland subsequently filed this original mandamus action, asserting
that the absence of findings means that the trial court’s judgments were not final,
appealable orders and the First District therefore lacked jurisdiction to decide his
appeals. He asks us to issue a writ of mandamus to compel Judge Dinkelacker to
issue a new judgment entry with findings of fact and conclusions of law, so as to
enable him to take yet another appeal.
{¶ 6} On its face, this contention precludes mandamus relief. This court is
barred from issuing a writ of mandamus when the relator has or had an adequate
remedy at law to obtain the requested relief. R.C. 2731.05. Penland had an
adequate remedy to challenge the trial court’s failure to issue findings and
conclusions: he could have raised the error in his direct appeals from the judgments
denying postconviction relief.2 Penland cannot now obtain another appeal simply
because he subsequently became aware of an error in the prior proceedings.
1. The First District determined that although the trial court entered judgments denying Penland’s
petitions for postconviction relief, the petitions themselves were not made a part of the record in the
trial court. As the appellant, it was Penland’s obligation to ensure that a complete record was
presented for review. Rose Chevrolet, Inc. v. Adams, 36 Ohio St. 3d 17, 19, 520 N.E.2d 564 (1988);
see also App.R. 9(E) (setting forth procedures for modification or correction of the record).
2. Indeed, Penland did raise that argument on direct appeal—but not until he sought this court’s
review. Because he did not assert that argument in the court of appeals, the First District did not
address the lack-of-findings issue in its decision.
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Our precedent does not allow Penland to avoid the lack-of-adequate-remedy
requirement
{¶ 7} Penland’s argument that the First District lacked jurisdiction over his
appeals is premised on this court’s decisions in Mapson, 1 Ohio St. 3d 217, 438
N.E.2d 910 (1982), and Ferrell, 13 Ohio St. 3d 3, 469 N.E.2d 843 (1984). But as
we will explain, those cases do not compel the result Penland seeks.
{¶ 8} In Mapson, this court was asked to determine the point at which the
time to appeal a trial court’s judgment denying postconviction relief began to run
under App.R. 4. The question arose because the trial court had denied the motion
in a judgment entry stating that it had separately filed findings of fact and
conclusions of law, but in fact the trial court did not file the findings and
conclusions until many months later. This court determined that the time for the
petitioner to appeal had not commenced until the complete judgment had been
entered on the docket—which included the court’s separate entry containing its
findings of fact and conclusions of law.
{¶ 9} That result could easily have been justified under the familiar rule that
when a judgment entry contemplates further action by the trial court, the judgment
is not final until the trial court takes those steps. See, e.g., State ex rel. Keith v.
McMonagle, 103 Ohio St. 3d 430, 2004-Ohio-5580, 816 N.E.2d 597, ¶ 4; Cincinnati
v. Cincinnati Union Terminal Co., 27 Ohio Law. Abs. 264, 31 N.E.2d 888 (1st
Dist.1938). But the Mapson court didn’t rely on this rule. Instead, it based its
decision on policy considerations, opining that it would be inefficient to require a
petitioner to institute an appeal without findings of fact because “it would guarantee
two trips to the appellate court—one to force the findings and another to review the
decision on the merits.” Mapson at 219.
{¶ 10} It’s not clear that the court in Mapson intended to create a new
finality requirement. Mapson does not address R.C. 2953.23(B), the statute
governing finality on decisions awarding or denying postconviction relief, nor does
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it consider R.C. 2505.02, the statute defining final orders generally. There is simply
no mention at all of finality in Mapson.
{¶ 11} A couple of years after Mapson, though, this court decided Ferrell,
13 Ohio St. 3d 3, 469 N.E.2d 843—a per curiam opinion consisting of just six
sentences. In Ferrell, the relator filed a complaint for a writ of mandamus in the
court of appeals, seeking an order compelling the trial court to issue findings of fact
and conclusions of law with respect to its denial of his postconviction-relief
petition. The court of appeals denied the writ on the rationale that the relator could
raise the issue in a direct appeal from the trial court’s judgment. This court reversed
on the authority of Mapson, concluding that the relator did not have an adequate
remedy by way of direct appeal because, under Mapson, he would not have been
able to appeal from a nonfinal order.
{¶ 12} Like Mapson, Ferrell did not consider the relevant jurisdictional
statutes. To the contrary, the decision is devoid of legal reasoning. The court issued
a writ of mandamus compelling the trial court to issue findings of fact and
conclusions of law, saying only that “[m]andamus will lie to compel a court to
proceed to final judgment in an action for post-conviction relief.” (Emphasis
added.) Id. at 3, citing State ex rel. Turpin v. Court of Common Pleas, 8 Ohio St. 2d
1, 220 N.E.2d 670 (1966). This language suggests that the court issued the writ so
that the relator could take an appeal.
{¶ 13} Thus, Ferrell falls within our longstanding rule that writs of
mandamus and procedendo are appropriate to direct a court to enter a judgment to
enable an appeal to go forward. See State ex rel. Grove v. Nadel, 81 Ohio St. 3d
325, 327, 691 N.E.2d 275 (1998) (writ of procedendo was available to order a court
to journalize its judgment because “[a]bsent journalization of the judgment, [the
relator] cannot appeal it”); State ex rel. Dehler v. Sutula, 74 Ohio St. 3d 33, 35, 656
N.E.2d 332 (1995) (mandamus and procedendo will lie to compel a court to proceed
to judgment), citing State ex rel. Sherrills v. Cuyahoga Cty. Court of Common
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Pleas, 72 Ohio St. 3d 461, 462, 650 N.E.2d 899 (1995), and Ferrell. Had the First
District dismissed Penland’s appeal for lack of a final order, and had Judge
Dinkelacker subsequently refused to issue a final order, one could cite Ferrell for
the proposition that a writ of mandamus would then be appropriate to compel the
judge to do so.
{¶ 14} But nothing in Ferrell requires that we issue a writ of mandamus
compelling a trial court to put on a new final order when the first one already
allowed the relator to appeal. Here, the First District, in reaching the merits of the
action and affirming the trial court’s judgments, implicitly decided that it had
jurisdiction over Penland’s appeals. Whether that decision was correct or incorrect
is beside the point. Penland received what he was entitled to: the opportunity to
present his challenge in the court of appeals.
{¶ 15} Indeed, the rule advocated by Penland would throw the doors wide
open for seriatim appeals through the use of extraordinary writs. Imagine the
number of inmates who might find a decades-old judgment denying a petition for
postconviction relief that has already been appealed, discover that the trial court
had failed to issue findings of fact and conclusions of law, and seek mandamus
relief and a second appeal on the basis that the first appeal was void for lack of
jurisdiction. If we adopted Penland’s view, they would all be entitled to new
appeals.
{¶ 16} That approach would take us well beyond the holdings of Mapson
and Ferrell, and it would still fail to address the clear adequate-remedy problem.
Because Penland has already had an appeal, he has received an adequate remedy at
law. We are therefore compelled to deny the writ.
It is time to overrule Mapson and Ferrell
{¶ 17} Correctly understood, Mapson and Ferrell do not support Penland’s
claim for relief, and this case may be properly resolved without overruling those
decisions. Nevertheless, our review of those cases has convinced us that they were
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wrongly decided. And not only were they wrongly decided, but they have caused
significant confusion about the appealability of a judgment denying postconviction
relief that does not include findings of fact and conclusions of law. Compare State
v. Gholston, 1st Dist. Hamilton No. C-010789, 2002-Ohio-3674, with State v.
Wilson, 8th Dist. Cuyahoga No. 70008, 1996 WL 492284 (Aug. 29, 1996). We
therefore take this opportunity to clarify that a trial court’s failure to issue findings
of fact and conclusions of law does not affect a petitioner’s ability to appeal a
judgment dismissing or denying postconviction relief but is instead an error that
may be remedied through an appeal.
{¶ 18} The Ohio Constitution provides that the courts of appeals shall have
“such jurisdiction as may be provided by law” to review “judgments or final orders”
of inferior courts. Ohio Constitution, Article IV, Section 3(B)(2). The “provided
by law” part of the grant has long been understood as tying the court’s jurisdictional
authority to the statutory enactments of the General Assembly. See, e.g., State v.
Craig, __ Ohio St.3d __, 2020-Ohio-455, __ N.E.3d __, ¶ 9; Gen. Acc. Ins. Co. v.
Ins. Co. of N. Am., 44 Ohio St. 3d 17, 20, 540 N.E.2d 266 (1989).
{¶ 19} Here, the General Assembly has enacted a specific statute
establishing the jurisdiction of the courts of appeals to hear appeals from orders
granting or denying motions for postconviction relief. R.C. 2953.23(B) provides
that “[a]n order awarding or denying relief sought in a petition filed pursuant
to section 2953.21 of the Revised Code is a final judgment.” Each of Judge
Dinkelacker’s 2016 orders denying Penland’s petitions was inarguably “an order
* * * denying relief sought in a petition filed pursuant to section 2953.21.” Thus,
they were final judgments, subject to appeal.
{¶ 20} It is true, of course, that R.C. 2953.21 requires a trial court to issue
findings of fact and conclusions of law when dismissing or denying a
postconviction-relief petition. R.C. 2953.21(H) states, “If the court does not find
grounds for granting relief, it shall make and file findings of fact and conclusions
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of law and shall enter judgment denying relief on the petition.” See also R.C.
2953.21(D). And if a court fails to do so, its decision is subject to reversal on
appeal. Indeed, that’s exactly how this court had handled the problem before
Mapson. In State v. Lester, 41 Ohio St. 2d 51, 322 N.E.2d 656 (1975), the court
reversed the dismissal of a postconviction-relief petition because the trial court had
failed to issue findings of fact and conclusions of law. Indeed, even after Mapson,
the courts of appeals—like the First District in Penland’s prior appeals—have in
some cases continued to assume that they had jurisdiction over appeals from
judgments that lacked findings of fact and conclusions of law. See, e.g., State v.
Petefish, 7th Dist. Mahoning No. 11 MA 70, 2012-Ohio-1502, ¶ 9; Wilson, 8th Dist.
Cuyahoga No. 70008, 1996 WL 492284; State v. Riggins, 91 Ohio App. 3d 350, 632
N.E.2d 922 (2d Dist.1993).
{¶ 21} The statutory mandate that a trial court issue findings of fact and
conclusions of law does not transform the trial court’s failure to do so into a
jurisdictional defect. That is simply not the way that we handle trial-court errors.
Indeed, in other contexts, courts routinely treat the failure to make findings as an
error to be corrected on appeal, not one that prevents an appeal. See, e.g., In re
S.W., 12th Dist. Butler Nos. CA2006-09-211 and CA2006-10-263, 2008-Ohio-
1194 (reversing and remanding for juvenile court to issue statutorily required
findings with respect to grant of temporary child custody); Cole v. Cole, 5th Dist.
Stark No. 2004CA00057, 2004-Ohio-5194 (reversing and remanding for trial court
to enter statutorily required findings with respect to child-support award).
{¶ 22} To make fulfillment of the findings requirement a precondition of
appellate jurisdiction would be akin to saying that because a trial court failed to
make mandatory consecutive-sentencing findings, a defendant could not appeal his
or her sentence. Or that because a trial court failed to afford a defendant the right
to speak in mitigation, the defendant could not appeal the sentence. Quite simply,
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the failure to issue findings of fact and conclusions of law is an error that should be
corrected on appeal, not one that prevents an appeal.
{¶ 23} To the extent that Mapson and Ferrell hold that an order dismissing
or denying postconviction relief is not a final judgment unless the order contains
findings of fact and conclusions of law, those decisions are inconsistent with R.C.
2953.23(B). Our Constitution gives the legislature, not the judiciary, the power to
define the jurisdictional boundaries of the courts of appeals. We do not have the
authority to simply make up jurisdictional rules. This court’s failure to account for
the jurisdictional statute is fatal to its holdings in Mapson and Ferrell, and we
therefore conclude that those decisions are no longer viable.
{¶ 24} In Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 216, 2003-Ohio-
5849, 797 N.E.2d 1256, this court provided a set of useful, though nonexclusive,
considerations in determining whether to overrule precedent. See id. at paragraph
one of the syllabus. We have utilized the test at times in overruling prior decisions,
see, e.g., State ex rel. Klein v. Precision Excavating & Grading Co., 155 Ohio St. 3d
78, 2018-Ohio-3890, 119 N.E.3d 386, but we have also overruled prior decisions
without explicitly applying the test, see, e.g., State v. Harper, __ Ohio St.3d __,
2020-Ohio-2913, __ N.E.3d __.
{¶ 25} For those who find the Galatis factors useful in determining whether
to overrule precedent, those factors all counsel in favor of doing so here. First,
Mapson and Ferrell were wrongly decided. See Galatis at paragraph one of the
syllabus. Unless one believes that judges, not the legislature, possess the authority
to set the jurisdiction of the courts, that point is inarguable.
{¶ 26} Second, the decisions defy practical workability. See id. Penland’s
proposed resolution of this case—effectively declaring his prior appeals and the
appellate court’s judgment therein a nullity—demonstrates as much. Indeed, in
another context, we recently overruled precedent that had allowed judgments to be
challenged indefinitely, in large part because the lack of finality occasioned by
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adherence to our precedent had proved unworkable. See Harper at ¶ 39.
Furthermore, Mapson and Ferrell have the unfortunate impact of forcing
defendants (the vast majority of whom are proceeding pro se) to resort to an
extraordinary writ to address a trial court’s error in failing to issue findings of fact
and conclusions of law, rather than simply allowing the error to be corrected
through the ordinary remedy of appeal. Indeed, Mapson is a good example of the
problems this court creates when it reaches a results-oriented decision without
appropriate consideration of the statutory framework or the implications for other
cases: the case was decided with the aim of allowing the defendant in that case to
appeal, but its practical effect has been to cut off the rights of defendants to appeal
trial-court errors in failing to issue findings and conclusions.
{¶ 27} Finally, there are no appreciable reliance interests that would be
disrupted. See Galatis, 100 Ohio St. 3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, at
paragraph one of the syllabus. No litigant can reasonably be said to have a reliance
interest in being prevented from seeking relief in the court of appeals when the trial
court has failed to comply with its statutory duties.
{¶ 28} In short, there are good reasons to overrule Mapson and Ferrell, and
we think it appropriate to do so now. We therefore hold that pursuant to R.C.
2953.23(B), a judgment granting or denying postconviction relief is a final,
appealable order. If a trial court errs by failing to issue statutorily required findings
of fact and conclusions of law, the petitioner may obtain relief by raising that issue
in an appeal from the trial court’s judgment.
Conclusion
{¶ 29} Penland received an adequate remedy at law by way of his appeals
from the trial court’s judgments denying postconviction relief, and this court’s
decisions in Mapson and Ferrell do not provide a workaround to the adequate-
remedy bar. We are therefore precluded from issuing a writ of mandamus in this
case. Moreover, because Mapson and Ferrell wrongly suggest that a judgment
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dismissing or denying postconviction relief is not a final, appealable order if it fails
to include findings of fact and conclusions of law, we overrule those decisions and
clarify that the absence of findings and conclusions does not affect the appealability
of the judgment but, rather, is an error that may be corrected on appeal.
{¶ 30} As a final matter, Penland has filed a motion for leave to file a reply
to Judge Dinkelacker’s answer. Our Rules of Practice do not provide for the filing
of a reply to an answer, and such a pleading is allowed under Civ.R. 7(A) only by
leave of court. See S.Ct.Prac.R. 12.01(A)(2)(b) (providing that the Ohio Rules of
Civil Procedure supplement this court’s Rules of Practice). Penland fails to present
any argument justifying leave in this case, so we deny his motion.
Writ denied.
O’CONNOR, C.J., and KENNEDY and FRENCH, JJ., concur.
DONNELLY, J., concurs in judgment only, with an opinion.
STEWART, J., concurs in judgment only, with an opinion.
FISCHER, J., not participating.
_________________
DONNELLY, J., concurring in judgment only.
{¶ 31} The postconviction petitions at issue in this mandamus action were
lost years ago at the Hamilton County Court of Common Pleas. Although relator,
Alex Penland, should not be faulted for the loss, it would be an exercise in futility
to order a trial court to issue findings of fact and conclusions of law regarding lost
petitions about which the trial court likely has no memory. For that reason, the writ
should not issue. But it remains true that the unusual procedural history of
Penland’s case has produced a manifest injustice. It calls for a solution—perhaps
one that is equally unusual—at the trial-court level. It does not call for us to hold
forth from the ivory tower. The underlying problem revealed by this mandamus
action does not provide this court with an appropriate opportunity for any broad
legal holding, let alone the overruling of decades-old precedent.
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{¶ 32} According to Penland’s complaint, he filed a timely petition for
postconviction relief in two criminal cases on September 23, 2016. The trial court
summarily denied the petitions just three days later. In an accelerated-calendar
judgment entry that is only slightly longer than the trial court’s summary denial,
the court of appeals noted that Penland’s postconviction petition did not appear on
either of the dockets for his criminal cases. State v. Penland, 1st Dist. Hamilton
Nos. C-160820 and C-160797, 2018 Ohio App. LEXIS 880 (Mar. 7, 2018). The
appellate court held, in effect, that the trial court was correct in denying the petitions
because there were no petitions. Penland spent the next three years filing a variety
of motions that appear to solicit proper consideration of the merits of his 2016
postconviction petition, to no avail.
{¶ 33} In a Kafkaesque tangle of mysterious judgment entries, appellate
decisions devoid of substance, and summary rejections of further attempts at
meaningful review, Penland’s due-process rights have suffered. The merits of
Penland’s postconviction petitions were not appropriately addressed before and
cannot be adequately addressed now on the current record, made deficient by the
clerk of courts’ apparent failure to docket the petitions as required by R.C.
2953.21(B). And Penland cannot receive the level of consideration he was due
under R.C. 2953.21 by refiling his postconviction petition, because a new petition
would be untimely under the statute. See R.C. 2953.21(A)(2).
{¶ 34} The fact that Penland’s postconviction petitions failed by getting
crushed in the cogs of bureaucratic machinery instead of by rejection on their merits
should be just as concerning to the state and the trial court as it is to Penland. I
believe that the state and the trial court should come up with an equitable solution
to this due-process problem, whether by creative application of the exceptions
provided for untimely postconviction petitions under R.C. 2953.23(A) or by some
other one-off undertaking. When confronting extraordinary circumstances, we
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government actors should refrain from acting like bulldogs or nitpickers and simply
be good shepherds of justice.
_________________
STEWART, J., concurring in judgment only.
{¶ 35} Relator, Alex Penland, is seeking to compel respondent, Hamilton
County Court of Common Pleas Judge Patrick Dinkelacker, to issue findings of fact
and conclusions of law in support of his orders purporting to deny nonexistent
petitions for postconviction relief. On direct appeal, in affirming the denial of
postconviction relief, the First District Court of Appeals stated: “[T]he record does
not reflect the filing * * * of a motion seeking postconviction relief. Therefore,
the record cannot be said to manifest the errors of which Penland now complains.”
State v. Penland, 1st Dist. Hamilton Nos. C-160820 and C-160797, 2018 Ohio App.
LEXIS 880, *2 (Mar. 7, 2018).
{¶ 36} It is true that Judge Dinkelacker issued orders purporting to deny
relief on two petitions for postconviction relief. But given that the First District
established that the record did not show that any petition for postconviction relief
had been filed, we cannot accept Penland’s allegation to the contrary, particularly
because he offers no proof to support it. Because there is no indication in the record
that the petitions Judge Dinkelacker purported to deny were ever filed, Penland can
demonstrate neither a clear legal right to the relief he seeks nor a clear legal duty
on the part of the judge to provide it. See State ex rel. Waters v. Spaeth, 131 Ohio
St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6 (setting forth requirements for
issuance of writ of mandamus). I would therefore deny the requested writ of
mandamus on that basis.
_________________
Alex Penland, pro se.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M.
Heenan, Assistant Prosecuting Attorney, for respondent.
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_________________
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