Zakel v. State

[Cite as Zakel v. State, 2022-Ohio-4637.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOSEPH C. ZAKEL, :
Plaintiff-Appellant, :
No. 111379
v. :
STATE OF OHIO, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 22, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-21-949673
Appearances:
Valore & Gordillo, LLP, and Matthew O. Williams,
for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Callista Plemel, Assisting Prosecuting
Attorney, for appellee.
EMANUELLA D. GROVES, J.:
Plaintiff-appellant Joseph C. Zakel (“Zakel”) appeals from the
decision of the trial court denying his application for relief from a weapons disability.
For the following reasons, we affirm the decision of the trial court.
Factual and Procedural History
In 2000, Zakel was convicted of domestic violence, a first-degree
misdemeanor. Zakel’s conviction created a disability under 18 U.S.C. 922(g)(9) that
states:
(g) It shall be unlawful for any person ─
***
(9) Who has been convicted in any court of a misdemeanor crime of
domestic violence, to ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition which has been
shipped or transported in interstate or foreign commerce.
On July 8, 2021, Zakel filed an application in the Cuyahoga County
Court of Common Pleas pursuant to R.C. 2923.14 seeking relief from the weapons
disability. On March 9, 2022, the trial court denied the application finding that
although Zakel had no further criminal convictions since 2000:
the court now finds that petitioner has not been convicted of any
qualifying disabling offense under O.R.C. 2923.13(A) from which relief
can be granted by this court. A trial court does not have the statutory
authority to relieve petitioner of a federal firearms disability
(specifically, a disability arising from a misdemeanor domestic violence
conviction). See [State ex rel. Suwalski v. Peeler, 167 Ohio St.3d 38,
2021-Ohio-4061, 188 N.E.3d 1048].
Petitioner is not under a state law disability and therefore cannot be
afforded relief by this court. Accordingly, petitioner’s application is
denied.
Zakel appeals and assigns the following error for our review:
Assignment of Error
The trial court committed reversible error prejudicial to appellant in
holding it lacked authority to consider appellant’s application for relief
from weapons disability pursuant to R.C. 2923.14 pursuant to the Ohio
Supreme Court’s decision in State ex. Rel. Suwalski v. Peeler, a wrongly
decided case.
Zakel asks this court to overturn the decision of the trial court.
Specifically, he argues that the trial court erred when it relied on the Ohio Supreme
Court’s decision in State ex rel. Suwalski v. Peeler, 167 Ohio St.3d 38, 2021-Ohio-
4061, 188 N.E.3d 1048, to deny his application. Zakel, in essence, asks this court to
overturn the trial court’s decision, because Suwalski, in his opinion, was wrongly
decided.
Standard of Review
In the instant case, the trial court determined that it did not have
authority to grant Zakel’s application on the basis of Suwalski. Zakel argues that the
trial court’s decision was an error of law. Accordingly, the recent decision of
Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, is
applicable here. In that case, the trial court allowed the testimony of a witness who
did not meet the requirements of Evid.R. 601. The First District Court of Appeals
found that decision was reversible error. The Supreme Court agreed noting that
“courts lack the discretion to make errors of law.” Id. at ¶ 39. In the instant case,
Zakel argues that we must overturn the trial court’s decision because Suwalski was
wrongly decided. To the contrary, we must determine whether the trial court’s
decision was contrary to law.
Scope of Appellate Review
At the outset, as an appellate court, we are a midlevel court of review.
As such we do not have the authority to review or overturn decisions of the Ohio
Supreme Court. See State ex rel. Duley v. Eberlin, 7th Dist. Belmont No. 07 BE 51,
2008-Ohio-3084, ¶ 17 (“[W]e cannot overturn or ignore the various Supreme Court
cases, which are in fact binding upon this court as precedent.”); Darrah v.
Baumberger, 7th Dist. Monroe No. 15 MO 0002, 2017-Ohio-8025, ¶ 24 (“An
appellate court is an intermediate court and is therefore bound by Ohio Supreme
Court decisions. Davis v. Montenery, 173 Ohio App. 3d 740, 2007-Ohio-6221, 880
N.E.2d 488, ¶ 31 (7th Dist.). An appellate court cannot overrule an Ohio Supreme
Court decision or declare an Ohio Supreme Court decision unconstitutional. State
v. Sheets, 12th Dist. Clermont No. CA2006-04-032, 2007-Ohio-1799, ¶ 16”).
Therefore, the only question for this court is whether the trial court
made an error of law when it denied Zakel’s application based on the holding in
Suwalski, 167 Ohio St.3d 38. If the holding applies to the facts of this case, then the
trial court did not err, and we are bound by the precedent set by the Ohio Supreme
Court.
Law and Analysis
The underlying facts of Suwalski involved a domestic violence
conviction from 2017. Ewing was convicted of domestic violence and violation of a
temporary protection order, both misdemeanors of the first degree. Suwalski was
the victim. As a result of the domestic violence conviction, Ewing became subject to
a disability under 18 U.S.C. 922(g)(9). In 2019, Ewing petitioned the common pleas
court for relief from the disability. The state did not contest the petition. However,
the state submitted to the court an unsworn statement from Suwalski objecting to
the petition. Nevertheless, Judge Peeler granted the petition, restoring all Ewing’s
firearm rights. The state did not appeal the decision. Suwalski subsequently filed a
writ of prohibition to prevent Judge Peeler’s order from going into effect. The court
of appeals granted the writ, holding that Judge Peeler lacked judicial power to
relieve Ewing of the federal firearms disability. Ewing, who was permitted to
intervene in the appellate case, appealed the decision to the Supreme Court.
Suwalski, 167 Ohio St.3d 38, ¶ 1-2. The bulk of the Supreme Court decision
addresses whether Suwalski had standing to bring her case under Article I, Section
10(a)(1) of the Ohio Constitution (Marsy’s Law). The four-justice majority
determined that Marsy’s law allowed her to file the writ.
Nevertheless, the entire court agreed that the common pleas court did
not have authority to lift Ewing’s disability. The majority, noting that Ohio law does
not create a disability when a person is convicted of a misdemeanor domestic
violence offense found “[a]s a matter of federal law, Ewing was ineligible to have his
firearms rights restored because he never lost those rights under Ohio law.”
Suwalski, 167 Ohio St.3d 38, at ¶ 28. The dissent disagreed with the majority’s
application of Marsy’s law but agreed with its conclusion that the trial court did not
have authority to rule on the application. Id. at ¶ 51.
The Suwalski decision recognizes that a weapons disability as a result
of a misdemeanor domestic violence conviction is imposed under federal law in this
state. Consequently, because Ohio does not impose a disability for that type of
conviction, the common pleas court had no authority to relieve Zakel of his
disability. To do so would be contrary to law. The trial court, therefore, had no other
choice but to summarily deny Zakel’s application for relief from disability.
Accordingly, the assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
____
EMANUELLA D. GROVES, JUDGE
ANITA LASTER MAYS, P.J., and
EILEEN T. GALLAGHER, J., CONCUR