State ex rel. Cowan v. Gallagher (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Cowan v. Gallagher, Slip Opinion No. 2016-Ohio-7430.]
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. 2016-OHIO-7430
THE STATE EX REL. COWAN, APPELLANT, v. GALLAGHER, JUDGE, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Cowan v. Gallagher, Slip Opinion No.
2016-Ohio-7430.]
Mandamus—Relator had adequate remedy at law by way of appeal—Denial of writ
affirmed.
(No. 2015-2088—Submitted July 12, 2016—Decided October 25, 2016.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 103470,
2015-Ohio-5156.
_____________________
Per Curiam.
{¶ 1} We affirm the Eighth District Court of Appeals’ denial of a writ of
mandamus to appellant, Craig A. Cowan, because Cowan had an adequate remedy
in the ordinary course of the law by way of appeal.
SUPREME COURT OF OHIO
Facts
{¶ 2} In January 2012, Cowan was tried for and found guilty of several
offenses. The court imposed a prison sentence, and Cowan filed an appeal. See
State v. Cowan, 8th Dist. Cuyahoga No. 97877, 2012-Ohio-5723, ¶ 13. Prior to his
trial, Cowan had filed a motion to represent himself, but the trial court never ruled
on it.
{¶ 3} Cowan’s appellate counsel raised five assignments of error. Cowan
was granted leave to file a supplemental pro se brief, but he was also instructed that
the brief was not to exceed ten pages. Id. at ¶ 45. The brief contained arguments
regarding his motion for self-representation, but because Cowan failed to comply
with the page limitation set by the court’s order, his supplemental brief was stricken
and the court of appeals did not rule on his arguments regarding the self-
representation motion. Id.; State v. Cowan, 8th Dist. Cuyahoga No. 97877, 2013-
Ohio-1172, ¶ 3-4.
{¶ 4} Cowan applied to reopen the appeal because his appellate counsel had
failed to argue that the trial court erred in not ruling on his motion for self-
representation. The court of appeals denied his application. 2013-Ohio-1172 at
¶ 5. Since then, Cowan has pursued numerous other appeals regarding his
conviction and sentence. State v. Cowan, 8th Dist. Cuyahoga No. 99566, 2013-
Ohio-4475; State v. Cowan, 8th Dist. Cuyahoga No. 100741, 2014-Ohio-3593;
State v. Cowan, 8th Dist. Cuyahoga No. 101995, 2015-Ohio-2271.
{¶ 5} On September 3, 2015, Cowan filed a complaint against appellees,
Judge Shannon M. Gallagher and Prosecuting Attorney Timothy J. McGinty,
asking the Eighth District for a writ of mandamus compelling a ruling on his motion
to represent himself. Appellees filed a motion to dismiss Cowan’s complaint,
which the Eighth District granted.
{¶ 6} Cowan appealed to this court.
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January Term, 2016
Analysis
{¶ 7} To be entitled to extraordinary relief in mandamus, Cowan must
establish a clear legal right to the requested relief, a clear legal duty on the part of
the court of appeals 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.
{¶ 8} Cowan’s motion to represent himself was effectively denied when the
trial court disposed of the case. Kostelnik v. Helper, 96 Ohio St. 3d 1, 2002-Ohio-
2985, 770 N.E.2d 58, ¶ 13 (“A motion not expressly decided by a trial court when
the case is concluded is ordinarily presumed to have been overruled”). Cowan had
an opportunity to argue his self-representation issue in his direct appeal. However,
because his brief did not conform to the page limits, the court of appeals did not
consider his arguments. He could have further appealed the issue to this court, but
he did not.
{¶ 9} Because he had an opportunity to appeal the issue, Cowan had an
adequate remedy in the ordinary course of the law. In general, an available appeal
is a remedy sufficient to preclude a writ of mandamus. State ex rel. Caskey v. Gano,
135 Ohio St. 3d 175, 2013-Ohio-71, 985 N.E.2d 453, ¶ 2.
{¶ 10} Accordingly, we affirm the Eighth District’s judgment denying
Cowan’s petition for a writ of mandamus.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
_________________
Craig A. Cowan, pro se.
Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and James
E. Moss, Assistant Prosecuting Attorney, for appellees.
_________________
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