State ex rel. Davis v. Gallagher

[Cite as State ex rel. Davis v. Gallagher, 2022-Ohio-129.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE EX REL. CORTEZ DAVIS, :
Relator, :
No. 111179
v. :
HOLLIE L. GALLAGHER, :
Respondent. :
JOURNAL ENTRY AND OPINION
JUDGMENT: COMPLAINT DISMISSED
DATED: January 14, 2022
Writ for Procedendo / Mandamus
Order No. 551862
Appearances:
Cortez Davis, pro se.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, for respondent.
MARY J. BOYLE, J.:
Cortez Davis has filed a complaint for a writ of
procedendo/mandamus. Davis seeks an order from this court that requires Judge
Hollie Gallagher to render rulings with regard to motions pending in State v. Davis,
Cuyahoga C.P. No. CR-19-640878-A. Specifically, Davis seeks rulings with regard
to various pro se motions for 1) full and fair hearing; 2) immediate discharge/release
for lack of subject matter jurisdiction; 3) immediate release/discharge for illegal and
unlawful custody; 4) dismissal of all charges for lack of speedy trial; and 5)
release/discharge from illegal and unlawful involuntary confinement. For the
following reasons, we sua sponte dismiss Davis’s complaint for
procedendo/mandamus.
The Supreme Court of Ohio has expressly held that a dismissal,
pursuant to Civ.R. 12(B)(6), can be made sua sponte and without notice if the
petition is frivolous or it is obvious that the allegations are not legally sufficient.
State ex rel. Scott v. Cleveland, 112 Ohio St. 3d 324, 2006-Ohio-6573, 859 N.E.2d
923.
In the underlying criminal case, CR-19-640878-A, Davis possesses
the right to counsel or the right to act pro se. However, Davis does not possess the
right to both representation by counsel and pro se representation simultaneously,
or “hybrid representation.” See State v. Thompson, 33 Ohio St.3d 1, 514 N.E.2d 407(1987); State v. Mongo, 8th Dist. Cuyahoga No. 100926, 2015-Ohio-1139. The right
to act pro se and the right to counsel are totally independent of each other and may
not be simultaneously asserted. State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-
5471, 816 N.E.2d 227.
When a criminal defendant is represented by counsel, a trial court is
prohibited from entertaining a pro se motion that is filed by the defendant. State v.
Washington, 8th Dist. Cuyahoga Nos. 96565 and 96568, 2012-Ohio-1531.
Moreover, when a criminal defendant is represented by counsel and counsel does
not join the defendant’s pro se motion, the trial court is prohibited from considering
the defendant’s pro se motions. State v. Vance, 4th Dist. Jackson No. 16CA11, 2018-
Ohio-1313; State v. Pizzaro, 8th Dist. Cuyahoga No. 94849, 2011-Ohio-611; State v.
Davis, 10th Dist. Franklin No. 05AP-193, 2006-Ohio-5039.
Because a trial court is not permitted to entertain a pro se motion,
when the defendant is represented by counsel and counsel does not join in the pro
se motion, there exists no duty on the part of the trial court to render any ruling with
regard to a pro se motion. State v. Powell, 8th Dist. Cuyahoga No. 107290, 2019-
Ohio-346. Herein, Davis is represented by counsel in Cuyahoga C.P. No. CR-19-
640878-A. See judgment entry journalized on June 20, 2019, wherein Attorney
Donald Butler was assigned to represent Davis. In addition, Davis fails to allege or
demonstrate that counsel participated or joined in the pro se motions. Thus, Judge
Gallagher possesses no duty to consider any of the pro se motions filed by Davis and
the complaint for procedendo/mandamus fails to state a claim upon which relief can
be granted. State ex rel. Cossett v. Executive State Governors Federalism Summit,
74 Ohio St.3d 1416, 655 N.E.2d 737 (1995); State ex rel. Peeples v. Anderson, 73
Ohio St.3d 559, 653 N.E.2d 371 (1995); State ex rel. Slater v. Gallagher, 8th Dist.
Cuyahoga No. 106974, 2018-Ohio-1742. It must also be noted that Judge Shannon
M. Gallagher, on April 12, 2021, granted a motion to strike all previously filed pro se
motions.1
Accordingly, we sua sponte dismiss Davis’s complaint for
procedendo/mandamus. Costs to Davis. The court directs the clerk of courts to
serve all parties with notice of this judgment and the date of entry upon the journal
as required by Civ.R. 58(B).
Complaint dismissed.
___________________________ _
MARY J. BOYLE, JUDGE
EILEEN A. GALLAGHER, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR
1 On August 5, 2021, Judge Brendan J. Sheehan, Cuyahoga Common Pleas
Administrative Judge, transferred the criminal case from Judge Shannon Gallagher to
Judge Hollie Gallagher: “Captioned case being originally assigned to Judge Shannon M
Gallagher (366) and for good cause shown, this matter is hereby reassigned and transferred
to the docket of Judge Hollie L Gallagher (352) for further proceedings according to law.”