[Cite as Johnson v. Summit Cty. Court of Common Pleas, 2015-Ohio-211.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
CINSEREE JOHNSON, : OPINION
Relator, : CASE NO. 2014-G-3207 - vs - :
SUMMIT COUNTY COURT : OF COMMON PLEAS, PSYCHO DIAGNOSTIC CLINIC, et al.,
Respondents. :
Original Action for a Writ of Prohibition.
Judgment: Petition dismissed.
Cinseree Johnson, pro se, 12450 Merritt Road, Chardon, OH 44024 (Relator).
Sherri Bevan Walsh, Summit County Prosecutor, and Colleen M. Sims, Assistant Prosecutor, Summit County Safety Building, 53 University Avenue, Akron, OH 44308 (For Respondent, Summit County Court of Common Please, Psycho Diagnostic Clinic)
James R. Flaiz, Geauga County Prosecutor, and Rebecca F. Schlag, Assistant Prosecutor, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For Respondent, Geauga County Court of Common Pleas).
THOMAS R. WRIGHT, J.,
{¶1} Relator, Cinseree Johnson, moves this court for leave, as a vexatious
litigator, to maintain a prohibition action against respondents, the Geauga County Court
of Common Pleas and the Summit County Court of Common Pleas Psycho Diagnostic
Clinic. Relator asserts that respondents must be enjoined from exercising jurisdiction over her because: (1) the Geauga County court lacks territorial jurisdiction over the
charged crimes in the underlying criminal case; and (2) the Geauga County court
committed plain error in ordering her to undergo a competency evaluation after she was
tried and found guilty of two offenses. For the following reasons, leave to proceed is
denied.
{¶2} As an initial point, the dissenting opinion asserts that a sentencing
judgment has been issued in the underlying criminal action, thereby rendering the
merits of relator’s prohibition petition moot. However, if such a judgment does exist, a
copy of it has not been introduced into the record of this proceeding. Specifically,
respondents have not moved to dismiss this case on the grounds of mootness, and
attached a certified copy of the purported judgment to the motion.
{¶3} It is important to note that this proceeding is not a direct appeal, but
instead is an original action in prohibition. In such an action, this court is not engaging
in appellate review, but is acting as a trial court. In turn, as a trial court, the scope of our
ability to take judicial notice is limited:
{¶4} “‘A trial court may not take judicial notice of prior proceedings in the court,
but may only take judicial notice of prior proceedings in the immediate case.’ Diversified
Mortgage Investors, Inc. v. Athens Cty. Bd. of Revision (1982), 7 Ohio App.3d 157, 159,
* * *. See, also, D & B Immobilization Corp. v. Dues (1997), 122 Ohio App.3d 50, 53,
* * *; In re Knotts (1996), 109 Ohio App.3d 267, 271, * * *; Woodman v. Tubbs Jones
(1995), 103 Ohio App.3d 577, 580, * * *; State v. Velez (1991), 72 Ohio App.3d 836,
838, * * *; Kiester v. Ehler (1964), 9 Ohio App.3d 52, 56, * * *; Burke v. McKee (1928),
30 Ohio App. 236, 238, * * *. ‘The rationale for this holding is that, if a trial court takes
2 notice of a prior proceeding, the appellate court cannot review whether the trial court
correctly interpreted the prior case because the record of the prior case is not before the
appellate court.’ Dues, supra, at 53. See Deli Table, Inc. v. Great Lakes Mall (Dec. 31,
1996), Lake App. No. 95-L-012, 1996 Ohio App. LEXIS 5930, at 13; Phillips v. Rayburn
(1996), 113 Ohio App.3d 374, 379, 1996 Ohio App. LEXIS 570.” State v. Blaine, 4th
Dist. Highland No. 03CA9, 2004-Ohio-1241, ¶17.
{¶5} Even if the separate prior case was heard by the identical trial court, that
court cannot take judicial notice of any determination made in the separate case.
Rather, any detail about the separate case can only be established through the
submission of evidence. In re Pyle, 7th Dist. Belmont No. 91-B-27, 1992 Ohio App.
LEXIS 2263, *3 (May 6, 1992).
{¶6} Given that the criminal action against relator is a separate case from this
original action, this court cannot take judicial notice of any new decisions in the criminal
case. In the absence of any evidence from the parties regarding new proceedings in
the criminal case, the scope of our review is limited to the allegations in relator’s
prohibition petition. Thus, we will address the merits of relator’s motion for leave to
proceed.
{¶7} “As a general proposition, a writ of prohibition will be issued only when the
relator can demonstrate that: (1) a lower court or judicial officer is preparing to exercise
its judicial authority in a matter; (2) the proposed use of that authority is not permissible
under the law; and (3) there is no alternative legal remedy the relator could employ to
achieve the identical results. State ex rel. The Leatherworks Partnership v. Stuard, 11th
Dist. No. 2002-T-0017, 2002-Ohio-6477, at ¶15. As to the second and third elements
3 for the writ, this court has emphasized that the absence of an adequate legal remedy is
not necessary when the lack of judicial authority to act is patent and unambiguous; i.e.,
if the lack of jurisdiction is clear, the writ will lie upon proof of the first two elements only.
See State ex rel. Biros v. Logan, 11th Dist. No. 2003-T-0016, 2003-Ohio-5425, at ¶11.
However, if the lack of jurisdiction is not patent and unambiguous, the fact that a party
can appeal a lower court’s decision bars the issuance of the writ because, when a court
has general jurisdiction over the subject matter of a case, it has the inherent authority to
decide whether that jurisdiction has been properly invoked in a specific instance. State
ex rel. Hummel v. Sadler, 96 Ohio St.3d 84, 2002-Ohio-3605, * * *, at ¶21.” State ex rel.
Godale v. Geauga Cty. Ct. of Common Pleas, Judicial Branch, 166 Ohio App.3d 851,
2006-Ohio-2500, ¶6 (11th Dist.). See, also, State ex rel. Swanson v. Hague, 11th Dist.
Ashtabula No. 2009-A-0053, 2010-Ohio-4200, ¶32-33.
{¶8} As to the standard to be applied in determining whether the alleged lack of
jurisdiction is patent and unambiguous, this court has held:
{¶9} “‘* * * [I]f there is no set of facts under which a trial court or judge could
have jurisdiction over a particular case, the alleged jurisdictional defect will always be
considered patent and unambiguous. On the other hand, if the court or judge generally
has subject matter jurisdiction over the type of case in question and his authority to hear
that action will depend on the specific facts before him, the jurisdictional defect is not
obvious and the court/judge should be allowed to decide the jurisdictional issue.’ State
ex rel. The Leatherworks Partnership v. Stuard, 11th Dist. No. 2002-T-0017, 2002-Ohio-
6477, at ¶19.” McGhan v. Vettel, 11th Dist. Ashtabula No. 2008-A-0036, 2008-Ohio-
6063, ¶52.
4 {¶10} In her amended prohibition petition, relator alleges that she was charged
and tried on two fifth-degree felonies. She also asserts that the Geauga County Court
of Common Pleas has no authority to go forward in the criminal case because, even if
she committed either of the charged crimes, they occurred in Cuyahoga County, not
Geauga County.
{¶11} Given that a common pleas court has original jurisdiction over all felony
cases, see State v. Hobbs, 9th Dist Summit No. 25379, 2011-Ohio-3192, ¶25, the
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[Cite as Johnson v. Summit Cty. Court of Common Pleas, 2015-Ohio-211.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
CINSEREE JOHNSON, : OPINION
Relator, : CASE NO. 2014-G-3207 - vs - :
SUMMIT COUNTY COURT : OF COMMON PLEAS, PSYCHO DIAGNOSTIC CLINIC, et al.,
Respondents. :
Original Action for a Writ of Prohibition.
Judgment: Petition dismissed.
Cinseree Johnson, pro se, 12450 Merritt Road, Chardon, OH 44024 (Relator).
Sherri Bevan Walsh, Summit County Prosecutor, and Colleen M. Sims, Assistant Prosecutor, Summit County Safety Building, 53 University Avenue, Akron, OH 44308 (For Respondent, Summit County Court of Common Please, Psycho Diagnostic Clinic)
James R. Flaiz, Geauga County Prosecutor, and Rebecca F. Schlag, Assistant Prosecutor, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For Respondent, Geauga County Court of Common Pleas).
THOMAS R. WRIGHT, J.,
{¶1} Relator, Cinseree Johnson, moves this court for leave, as a vexatious
litigator, to maintain a prohibition action against respondents, the Geauga County Court
of Common Pleas and the Summit County Court of Common Pleas Psycho Diagnostic
Clinic. Relator asserts that respondents must be enjoined from exercising jurisdiction over her because: (1) the Geauga County court lacks territorial jurisdiction over the
charged crimes in the underlying criminal case; and (2) the Geauga County court
committed plain error in ordering her to undergo a competency evaluation after she was
tried and found guilty of two offenses. For the following reasons, leave to proceed is
denied.
{¶2} As an initial point, the dissenting opinion asserts that a sentencing
judgment has been issued in the underlying criminal action, thereby rendering the
merits of relator’s prohibition petition moot. However, if such a judgment does exist, a
copy of it has not been introduced into the record of this proceeding. Specifically,
respondents have not moved to dismiss this case on the grounds of mootness, and
attached a certified copy of the purported judgment to the motion.
{¶3} It is important to note that this proceeding is not a direct appeal, but
instead is an original action in prohibition. In such an action, this court is not engaging
in appellate review, but is acting as a trial court. In turn, as a trial court, the scope of our
ability to take judicial notice is limited:
{¶4} “‘A trial court may not take judicial notice of prior proceedings in the court,
but may only take judicial notice of prior proceedings in the immediate case.’ Diversified
Mortgage Investors, Inc. v. Athens Cty. Bd. of Revision (1982), 7 Ohio App.3d 157, 159,
* * *. See, also, D & B Immobilization Corp. v. Dues (1997), 122 Ohio App.3d 50, 53,
* * *; In re Knotts (1996), 109 Ohio App.3d 267, 271, * * *; Woodman v. Tubbs Jones
(1995), 103 Ohio App.3d 577, 580, * * *; State v. Velez (1991), 72 Ohio App.3d 836,
838, * * *; Kiester v. Ehler (1964), 9 Ohio App.3d 52, 56, * * *; Burke v. McKee (1928),
30 Ohio App. 236, 238, * * *. ‘The rationale for this holding is that, if a trial court takes
2 notice of a prior proceeding, the appellate court cannot review whether the trial court
correctly interpreted the prior case because the record of the prior case is not before the
appellate court.’ Dues, supra, at 53. See Deli Table, Inc. v. Great Lakes Mall (Dec. 31,
1996), Lake App. No. 95-L-012, 1996 Ohio App. LEXIS 5930, at 13; Phillips v. Rayburn
(1996), 113 Ohio App.3d 374, 379, 1996 Ohio App. LEXIS 570.” State v. Blaine, 4th
Dist. Highland No. 03CA9, 2004-Ohio-1241, ¶17.
{¶5} Even if the separate prior case was heard by the identical trial court, that
court cannot take judicial notice of any determination made in the separate case.
Rather, any detail about the separate case can only be established through the
submission of evidence. In re Pyle, 7th Dist. Belmont No. 91-B-27, 1992 Ohio App.
LEXIS 2263, *3 (May 6, 1992).
{¶6} Given that the criminal action against relator is a separate case from this
original action, this court cannot take judicial notice of any new decisions in the criminal
case. In the absence of any evidence from the parties regarding new proceedings in
the criminal case, the scope of our review is limited to the allegations in relator’s
prohibition petition. Thus, we will address the merits of relator’s motion for leave to
proceed.
{¶7} “As a general proposition, a writ of prohibition will be issued only when the
relator can demonstrate that: (1) a lower court or judicial officer is preparing to exercise
its judicial authority in a matter; (2) the proposed use of that authority is not permissible
under the law; and (3) there is no alternative legal remedy the relator could employ to
achieve the identical results. State ex rel. The Leatherworks Partnership v. Stuard, 11th
Dist. No. 2002-T-0017, 2002-Ohio-6477, at ¶15. As to the second and third elements
3 for the writ, this court has emphasized that the absence of an adequate legal remedy is
not necessary when the lack of judicial authority to act is patent and unambiguous; i.e.,
if the lack of jurisdiction is clear, the writ will lie upon proof of the first two elements only.
See State ex rel. Biros v. Logan, 11th Dist. No. 2003-T-0016, 2003-Ohio-5425, at ¶11.
However, if the lack of jurisdiction is not patent and unambiguous, the fact that a party
can appeal a lower court’s decision bars the issuance of the writ because, when a court
has general jurisdiction over the subject matter of a case, it has the inherent authority to
decide whether that jurisdiction has been properly invoked in a specific instance. State
ex rel. Hummel v. Sadler, 96 Ohio St.3d 84, 2002-Ohio-3605, * * *, at ¶21.” State ex rel.
Godale v. Geauga Cty. Ct. of Common Pleas, Judicial Branch, 166 Ohio App.3d 851,
2006-Ohio-2500, ¶6 (11th Dist.). See, also, State ex rel. Swanson v. Hague, 11th Dist.
Ashtabula No. 2009-A-0053, 2010-Ohio-4200, ¶32-33.
{¶8} As to the standard to be applied in determining whether the alleged lack of
jurisdiction is patent and unambiguous, this court has held:
{¶9} “‘* * * [I]f there is no set of facts under which a trial court or judge could
have jurisdiction over a particular case, the alleged jurisdictional defect will always be
considered patent and unambiguous. On the other hand, if the court or judge generally
has subject matter jurisdiction over the type of case in question and his authority to hear
that action will depend on the specific facts before him, the jurisdictional defect is not
obvious and the court/judge should be allowed to decide the jurisdictional issue.’ State
ex rel. The Leatherworks Partnership v. Stuard, 11th Dist. No. 2002-T-0017, 2002-Ohio-
6477, at ¶19.” McGhan v. Vettel, 11th Dist. Ashtabula No. 2008-A-0036, 2008-Ohio-
6063, ¶52.
4 {¶10} In her amended prohibition petition, relator alleges that she was charged
and tried on two fifth-degree felonies. She also asserts that the Geauga County Court
of Common Pleas has no authority to go forward in the criminal case because, even if
she committed either of the charged crimes, they occurred in Cuyahoga County, not
Geauga County.
{¶11} Given that a common pleas court has original jurisdiction over all felony
cases, see State v. Hobbs, 9th Dist Summit No. 25379, 2011-Ohio-3192, ¶25, the
Geauga County court has general jurisdiction over the subject matter of the underlying
case. Furthermore, the determination of whether that court has territorial jurisdiction
over the two alleged crimes will turn upon the specific facts proven by the state at trial.
As a result, the Geauga County court has the authority to make the initial determination
on the territorial jurisdiction issues, and appellant has an adequate legal remedy
through a direct appeal of her conviction and sentence.
{¶12} As the second basis for her amended petition, relator submits that the
Geauga County court has exceeded the scope of its jurisdiction by ordering her to
undergo a competency evaluation under R.C. 2945.37. First, she contends that such
an order is only permissible prior to the commencement of the criminal trial. Second,
she maintains that she cannot be compelled to take a psychiatric evaluation when she
has never raised her state of mind as an issue in the case.
{¶13} “Pursuant to R.C. 2945.37(B), the issue of competency may be raised by
the court, prosecutor, or defense. Under the statute, however, a hearing is required
only where objections are raise prior to trial. If the issue is raised during trial, R.C.
2945.37(B) mandates a hearing ‘only for good cause shown.’” (Emphasis sic.) State v.
5 Marquez, 11th Dist. Ashtabula No. 2007-A-0085, 2008-Ohio-5324, ¶43.
{¶14} In Marquez, the issue of the defendant’s competency was not raised until
the day of his sentencing hearing. In reviewing the merits of the trial court’s decision to
deny a competency evaluation, the Marquez court stated that the determination to “hold
a competency hearing after the commencement of trial is a matter within the trial court’s
discretion and will not be reversed absent evidence that the court abused its discretion.”
Id. at ¶44.
{¶15} Under the foregoing authority, a common pleas court has the authority to
order a competency evaluation even after the beginning of a criminal trial, so long as
good cause exists. Moreover, it is not necessary that the issue be asserted by the
defendant herself; i.e., the issue can be raised by the trial court sua sponte. Therefore,
given the nature of the competency determination, any error in the court’s disposition of
the issue does not affect the court’s subject matter jurisdiction over the case, but only
constitutes an improper exercise of jurisdiction. State ex rel. Mason v. Sheldon, 6th
Dist. Lucas No. L-12-1247, 2012-Ohio-4869, ¶8. As a non-jurisdictional dispute, any
error in the disposition of a competency issue must be contested in a direct appeal of
the conviction and sentence. Id. at ¶7.
{¶16} In light of this precedent, relator could not prove a set of facts under which
she would be entitled to a writ of prohibition to enjoin the Geauga County court from
enforcing its “evaluation” order. Similarly, a writ will never lie to enjoin the Summit
County Psycho Diagnostic from conducting the competency evaluation.
{¶17} Finally, as part of a preliminary statement in her amended petition, relator
includes a request for the issuance of a writ of procedendo. However, the body of the
6 amended petition does not contain any separate allegations in support of that request.
{¶18} After a person has been designated a vexatious litigator, she cannot
institute new proceedings before an appellate court unless that court is satisfied that
there are reasonable grounds for the new proceeding and no abuse of process will take
place if the matter goes forward. Karnofel v. Girard Police Dept., 11th Dist. Trumbull
No. 2013-T-0093, 2013-Ohio-5270, ¶8, quoting R.C. 2323.52(F)(2). In light of our
conclusion that relator’s petition fails to state a viable claim for the writ, she has not
established reasonable grounds to maintain the action. Therefore, since relator cannot
satisfy both requirements for leave under R.C. 2323.52(F)(2), leave is denied.
TIMOTHY P. CANNON, P.J., concurs,
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
____________________
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
{¶19} The following eight cases have been filed by Cinseree Johnson and are
currently pending in this court: Johnson v. Geauga County Court of Common Pleas,
11th Dist. Geauga No. 2014-G-3206 (writ of prohibition); Johnson v. Summit County
Court of Common Pleas, Psycho Diagnostic Clinic, et al., 11th Dist. Geauga No. 2014-
G-3207 (writ of prohibition); State v. Johnson, 11th Dist. Geauga No. 2014-G-3215
(delayed appeal and notice of voluntary dismissal); State v. Johnson, 11th Dist. Geauga
No. 2014-G-3219 (appeal); State v. Johnson, 11th Dist. Geauga No. 2014-G-3223
7 (appeal); State v. Johnson, 11th Dist. Geauga No. 2014-G-3229 (appeal); State v.
Johnson, 11th Dist. Geauga No. 2014-G-3230 (appeal); and, State v. Johnson, 11th
Dist. Geauga No. 2014-G-3231 (appeal). All relate to the same underlying criminal
action, State v. Johnson, Geauga C.P. No. 12C000142. Ms. Johnson requests various,
and often conflicting, relief from this court. All were filed before the trial court sentenced
her.
{¶20} The majority denies the petitions for writs finding Ms. Johnson cannot
meet the standards for obtaining leave to file the petitions. It dismisses the appeals
because appellant is a vexatious litigator, and has not sought leave of this court to
appeal. R.C. 2323.52(D)(3).
{¶21} I am aware that the courts of Ohio have held that once a person is
designated a vexatious litigator, he or she must seek leave of court to pursue any action
in a court of appeals, even in the criminal setting. See, e.g., Baumgartner v. Duffey,
121 Ohio St.3d 356, 2009-Ohio-1218, ¶3. I respectfully question this position. The
vexatious litigator statute, by its terms, is directed at people who “habitually,
persistently, and without reasonable grounds [engage] in vexatious conduct in a civil
action or actions.” (Emphasis added.) R.C. 2323.52(A)(3). I agree the restrictions
placed on vexatious litigators are not reserved simply for civil actions, by the plain
language of the statute. See, e.g., R.C. 2323.52(D)(3). However, “[i]t is a cardinal rule
of statutory construction that a statute should not be interpreted to yield an absurd
result.” Mishr v. Poland Bd. of Zoning Appeals, 76 Ohio St.3d 238, 240 (1996). I do not
see how applying the restrictions of the vexatious litigator statute to criminal
proceedings, instituted by the state against an individual, forwards the obvious purpose
8 of the statute, which is to prevent frivolous civil actions.
{¶22} As the majority notes the trial court filed its judgment entry of sentence
December 8, 2014. This is a final appealable order. Consequently, I would dismiss the
petitions for writs as moot, accept the various appeals as prematurely filed under App.R.
4, and consolidate them for disposition. I would further appoint appellant counsel for
purposes of appeal.
{¶23} I respectfully dissent.