Townsend v. Gaul

[Cite as Townsend v. Gaul, 2023-Ohio-1485.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
ALBERT TOWNSEND SR. EX REL.,
:
Relator,
: No. 112510
v.
:
JUDGE DANIEL GAUL, :
Respondent. :
JOURNAL ENTRY AND OPINION
JUDGMENT: WRIT DENIED
DATED: May 2, 2023
Writ of Mandamus
Motion No. 563494
Order No. 563943
Appearances:
Albert Townsend, Sr., pro se.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and James E. Moss, Assistant Prosecuting
Attorney, for respondent.
MICHAEL JOHN RYAN, J.:
Relator, Albert Townsend, Sr., seeks a writ of mandamus directing
respondent, Judge Daniel Gaul, to, among other things, hold a resentencing hearing
that he claims was ordered by this court. Respondent has issued a journal entry in
compliance with this court’s mandate. This renders relator’s request for writ of
mandamus moot to the extent that relator’s complaint sets forth a valid claim for
mandamus. Relator’s complaint is also fatally defective. Respondent’s motion for
summary judgment is, therefore, granted, and relator’s request for writ of
mandamus is denied.
I. Procedural and Factual History
In State v. Townsend, Cuyahoga C.P. No. CR-17-614508-A, relator was
convicted of numerous charges related to the rape of three individuals in separate
incidents, for which he received a prison sentence of 56 years to life. On appeal, this
court vacated sexually violent predator specifications related to two victims and
remanded for resentencing. State v. Townsend, 8th Dist. Cuyahoga No. 107186,
2019-Ohio-1134 (“Townsend I”).
A resentencing hearing was held, and Townsend again received a
prison sentence of 56 years to life. In an appeal from that sentence, this court
affirmed the imposition of consecutive sentences and the overall sentence but
remanded for the sole purpose of incorporating the consecutive-sentence findings
that the trial judge made at the sentencing hearing into the sentencing entry.
State v. Townsend, 8th Dist. Cuyahoga No. 110525, 2022-Ohio-692, ¶ 23
(“Townsend II”).
Relator alleges in the instant complaint that on September 20, 2022,
he was transported from prison to Cuyahoga County Jail for a resentencing hearing
mandated by this court’s opinion in Townsend II, but one never occurred. Relator
asserts that on October 20, 2022, he was transported to a holding area for
respondent’s courtroom. He further alleges that respondent could not hold a
resentencing hearing because relator had filed an affidavit of disqualification with
the Supreme Court of Ohio that remained pending at the time.1 Because of this, the
hearing was cancelled and relator was returned to jail. On October 23, 2022, he was
transported back to prison without ever being resentenced. Relator alleges
thereafter the state filed a proposed nunc pro tunc entry to which relator objected.
At the time that relator filed his complaint, respondent had not issued a journal
entry incorporating the consecutive-sentence findings into its sentencing journal
entry as required by this court in Townsend II.
Relator also asserts several other largely unintelligible claims, asserting
fraud, impropriety, and seeking various orders directing respondent to take certain
actions. In his complaint, relator requests this court
to reinvestigate claims of facts[,] compel the [respondent] to take
action and follow the law as to the remand or in the alternative modify
sentence to time served or 10 years-concurrent which the prosecution
was untruthful saying they offered relator 10-years when the record
supports relator[’]s claims of fact. Review (Tr. 17) [relator’s] offered
plea deal of ten years concurrent which was denied but now the state is
claiming to have offered ten years and claims defense denied the plea
deal which according to the record is false[.] [I]f at all possible in good
faith standard honor the state[’]s claim they offered the relator ten-
years which relator would have accepted. (Tr. 17) supports relator’s
claim[.] [S]ustain the concurrent 10-year offered and/or time served
five years on the table no further litigation everyone satisfied…?? [sic]
And vacate the November 27, 2006[,] subsequent re-indictment of nine
1 The application for disqualification was denied on September 21, 2022, in an
opinion published on November 22, 2022. See In re Disqualification of Gaul, Slip
Opinion No. 2022-Ohio-4127; 11/22/2022 Case Announcements, 2022-Ohio-4164.
years later without any new evidence whatsoever and alleged victim
never showed at either trial and vacate second case February 12, 2005.
On April 10, 2023, respondent filed a motion for summary judgment.2
There, respondent argued that a nunc pro tunc journal entry was journalized on
April 5, 2023. A certified copy of this journal entry and opinion was attached to the
motion for summary judgment. This was further authenticated by affidavit. The
journal entry incorporated consecutive-sentence findings at page 3 of the opinion.
Relator filed a brief in opposition to respondent’s motion for summary
judgment on April 24, 2023. There, he asserted that he was convicted of charges
that were previously dismissed with prejudice. He appears to claim that the later
reindictment on dismissed charges should be void or that the indictment is invalid.
He also requests the appointment of counsel.
The gravamen of relator’s brief in opposition to respondent’s motion
for summary judgment is a collateral attack on his convictions in CR-17-614508-A.3
He recounts a series of events that he claims shows that he could not be indicted and
ultimately convicted of the charges for which he is presently incarcerated. He also
argues that his speedy trial rights were violated, there was judicial bias displayed
2 The docket in the present original action shows that service of the complaint via
certified mail was not completed on respondent. By filing a motion for summary
judgment without raising insufficiency of process, respondent has waived service and
submitted to the jurisdiction of this court. See Civ.R. 12(B); Civ.R. 12(H); Belovich v.
Crowley, 8th Dist. Cuyahoga No. 109523, 2021-Ohio-2039, ¶ 23.
3 Relator’s brief in opposition cites to numerous exhibits, but these exhibits were
not attached to this filing. He further cites to transcripts, but there are no transcripts
before the court in this action.
towards him, his rights were violated when counts were not severed for trial, his
indictment was facially void, he was prejudiced by a lack of separation of witnesses,
that this court should have done a de novo review of the entire transcript and found
plain or structural error, and that consecutive sentences were wrongfully imposed.
Addressing the actual arguments made by respondent on summary judgment,
relator also claimed that the journal entry attached to respondent’s motion for
summary judgment did not contain respondent’s actual signature and constituted a
fraud on the court.
II. Law and Analysis
A. Appointment of Counsel
To the extent relator’s brief in opposition to summary judgment
constitutes a motion for appointment of counsel, it is denied. Generally, parties in
an original action, a type of civil action, are not entitled to appointed counsel at
state’s expense. State ex rel. Karmasu v. Tate, 83 Ohio App.3d 199, 207, 614 N.E.2d
827 (4th Dist.1992).
B. Standards Applicable to this Action
A writ of mandamus may issue, in a court’s discretion, when relators
show by clear and convincing evidence that (1) they have a clear legal right to the
requested relief; (2) the respondent is under a clear legal duty to provide the relief;
and (3) the relator has no plain and adequate remedy in the ordinary course of the
law. State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914 (1987).
Generally, if a relator has or had an adequate remedy at law, whether used or not,
relief in mandamus is precluded. State ex rel. Martin v. Russo, 8th Dist. Cuyahoga
No. 96328, 2011-Ohio-3268, ¶ 7, citing State ex rel. Tran v. McGrath, 78 Ohio St.3d
45, 676 N.E.2d 108 (1997). However, when an inferior tribunal refuses to follow the
mandate of superior one, mandamus may lie rather than requiring a relator to suffer
through a series of ineffectual appeals. State ex rel. Gallagher v. Collier-Williams,
8th Dist. Cuyahoga No. 111229, 2022-Ohio-1177, ¶ 13.
The matter is before this court on the respondent’s motion for
summary judgment pursuant to Civ.R. 56(C). “‘Summary judgment is appropriate
when an examination of all relevant materials filed in the action reveals that “there
is no genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.”’” State ex rel. Parker v. Russo, 158 Ohio St.3d 123,
2019-Ohio-4420, 140 N.E.3d 602, ¶ 5, quoting Smith v. McBride, 130 Ohio St.3d 51,
2011-Ohio-4674, 955 N.E.2d 954, ¶ 12, quoting Civ.R. 56(C).
C. Procedural Defects
Pursuant to R.C. 2969.25(C), a person housed in a state prison
institution that wishes to waive the filing fee when commencing an action against a
governmental entity or employee shall file with the complaint, “an affidavit that the
inmate is seeking a waiver of the prepayment of the court’s full filing fees and an
affidavit of indigency[,]” that contains “[a] statement that sets forth the balance in
the inmate account of the inmate for each of the preceding six months, as certified
by the institutional cashier; [and] [a] statement that sets forth all other cash and
things of value owned by the inmate at that time.” R.C. 2969.25(C). The failure to
strictly comply with this provision requires dismissal of the complaint with costs
imposed. State ex rel. Ellis v. Wainwright, 157 Ohio St.3d 279, 2019-Ohio-2853,
135 N.E.3d 761, ¶ 7.
Here, relator has attached what appears to be a statement of his
inmate account. However, the statement is not certified by the institutional cashier
and the statement is for a period between May 1, 2022, and November 15, 2022.
This period is not for the preceding six months from the filing date of his complaint
— March 14, 2023. Strict compliance with R.C. 2969.25 is required. Ellis at ¶ 7
(holding that R.C. 2969.25(C) requires strict compliance so an inmate’s explanation
for noncompliance is irrelevant). The failure to comply requires this court to deny
the requested relief.
Here, relator has failed to strictly comply with R.C. 2969.25(C).
Therefore, his complaint is fatally defective.
D. Mootness
A complaint for writ of mandamus can become moot where the
relator obtains all the relief to which he is entitled. State ex rel. Shaw v. Clerk of
Cuyahoga Cty. Probate Court, 8th Dist. Cuyahoga No. 108816, 2019-Ohio-3780,
¶ 8, citing State ex rel. Jerninghan v. Court of Common Pleas, 74 Ohio St.3d 278,
658 N.E.2d 723 (1996). This may occur when the respondent enters rulings on
pending motions that are the subject of the mandamus action. This has occurred in
the present action. Respondent has provided this court with a certified journal entry
of sentence incorporated by affidavit in compliance with Civ.R. 56(C) that includes
the consecutive-sentence findings that we ordered in Townsend II.4 Therefore,
relator’s request for writ of mandamus is moot in relation to this claim.
E. Other Claims for Relief Unsuitable for Mandamus
Relator’s allegations in the complaint and brief in opposition to
summary judgment go well beyond a simple request to issue an order that complies
with this court’s mandate in Townsend II. He further claims that he was entitled to
a resentencing hearing and respondent is ignoring this court’s mandate. This court
did not order a resentencing hearing when it remanded the case in Townsend II.
This court specifically directed respondent to issue a nunc pro tunc sentencing entry
incorporating the consecutive-sentencing findings that were made at the sentencing
hearing into the sentencing entry. Townsend II at ¶ 2. Respondent had no legal
duty to hold a resentencing hearing where this court did not remand with
instructions to do so. See State ex rel. Locke v. Friedland, 8th Dist. Cuyahoga No.
106330, 2018-Ohio-180, ¶ 9, citing State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-
2669, 951 N.E.2d 381, ¶ 15. Further, relator had no right to be present at a hearing
for the issuance of a nunc pro tunc entry that merely incorporated consecutive-
sentencing findings. See State v. Smith, 8th Dist. Cuyahoga No. 109963, 2021-Ohio-
4 Relator’s conclusory statement that the certified journal entry attached to
respondent’s motion for summary judgment constitute a fraud on the court and is invalid
does not create a material question of fact. The certified entry bears the signature of
respondent and a date that it was journalized in the underlying criminal case and was
further authenticated by affidavit. Relator’s conclusory statement does not cast doubt on
its authenticity.
3099, ¶ 17. Therefore, relator is not entitled to a writ of mandamus ordering
respondent to hold a hearing.
A number of relator’s arguments for relief are not proper matters for
mandamus. For instance, this court cannot “reinvestigate” criminal matters in the
confines of an original action in mandamus. “The duty to be enforced by a writ of
mandamus must be specific, definite, clear and unequivocal.” (Emphasis sic.)
Karmasu, 83 Ohio App.3d at 205, 614 N.E.2d 827. Respondent and this court have
no clear legal duty to reinvestigate a criminal matter and no authority to do so.
Relief in mandamus is also not appropriate for a claim that a relator
should have received concurrent rather than consecutive sentences. State ex rel.
Culgan v. Kimbler, 132 Ohio St.3d 480, 2012-Ohio-3310, 974 N.E.2d 88 (A direct
appeal is the proper vehicle to raise claim that consecutive sentences were
erroneous.).
In this case, we also lack the ability in mandamus to order the state to
offer or respondent to accept a plea agreement for relator’s final criminal
convictions. Relator asks this court to order the state to accept a specific plea
agreement and for respondent to impose sentence following that purported
agreement. Relator has not identified any source of authority that would allow this
court to disturb relator’s final judgment of conviction. Further, the offering and
acceptance of a plea are matters left to the sound discretion of prosecutors and trial
judges for which no clear legal duty exists in mandamus in this case. “Although a
writ of mandamus may require an inferior tribunal to exercise its judgment or to
proceed to the discharge of its function, R.C. 2731.03, it may not control judicial
discretion, even if such discretion is grossly abused.” State ex rel. Ney v. Niehaus,
33 Ohio St.3d 118, 119, 515 N.E.2d 914 (1987).
Many of the allegations and arguments in the brief in opposition to
respondent’s motion for summary judgment are clearly an attempted collateral
attack on relator’s convictions. A writ of mandamus is not a substitute for an appeal
and may not be used to gain successive appellate review of issues that were or could
have been raised previously. State ex rel. LTV Steel Co. v. Gwin, 64 Ohio St.3d 245,
249, 594 N.E.2d 616 (1992). “Permitting another collateral attack on a conviction
through mandamus would ‘undermine the finality of all criminal judgments by
permitting the endless relitigation of a court’s jurisdiction when the offender has
already had a full and fair opportunity to be heard.’” State ex rel. Mobarak v.
Brown, 10th Dist. Franklin No. 22AP-482, 2023-Ohio-436, ¶ 16, quoting State ex
rel. Peoples v. Johnson, 152 Ohio St.3d 418, 2017-Ohio-9140, 97 N.E.3d 426, ¶ 13.
Relator has previously raised or could have raised these claims in
other appellate proceedings including Townsend I, Townsend II, State v.
Townsend, 8th Dist. Cuyahoga No. 107186, 2021-Ohio-696 (application for
reopening denied where relator raised claims of speedy trial, Confrontation Clause
issues, sufficiency of the evidence, severance of charges, Brady violations,
suppression issues, evidentiary issues, and right to compulsory process); State v.
Townsend, 8th Dist. Cuyahoga No. 110525, 2022-Ohio-4398 (application for
reopening denied where relator raised 26 proposed assignments of error with
arguments similar to those raised here). The attempted collateral attack of his
criminal convictions in mandamus must fail.
A writ of mandamus is also not a suitable vehicle to seek the removal
of a judge for bias. State ex rel. Siemientkowski v. Gallagher, 8th Dist. Cuyahoga
No. 82749, 2003-Ohio-3543, ¶ 6. Relator seeks an order from this court removing
respondent from the underlying criminal case. Pursuant to R.C. 2701.03, an
adequate remedy exists in the form of an affidavit of disqualification filed with the
Supreme Court of Ohio.
There is only one valid claim for relief in mandamus present in
relator’s complaint: Respondent must enter a nunc pro tunc order following this
court’s remand in Townsend II. Respondent has shown that this claim was rendered
moot by the journalization of an order in compliance with this court’s remand in
Townsend II. Therefore, relator has received all the relief to which he is entitled in
this case and mandamus may not be used to compel the performance of a duty that
has already been performed. State ex rel. Davidson v. Beathard, 165 Ohio St.3d
558, 2021-Ohio-3125, 180 N.E.3d 1105, ¶ 13, citing State ex rel. Scruggs v. Sadler,
102 Ohio St.3d 160, 2004-Ohio-2054, 807 N.E.2d 357, ¶ 5. To the extent that
relator’s complaint presents a valid claim in mandamus, that claim is moot.
Therefore, respondent’s motion for summary judgment is granted.
Relator’s request for writ of mandamus is denied. Relator to bear the costs of this
action. The clerk is directed to serve on the parties notice of this judgment and its
date of entry upon the journal. Civ.R. 58(B).
Writ denied.
________________________
MICHAEL JOHN RYAN, JUDGE
MICHELLE J. SHEEHAN, P.J., and
MARY J. BOYLE, J., CONCUR