Parham v. McManamon

2016 Ohio 3264

• Court: Ohio Court of Appeals
• Decided: June 2, 2016
• Docket: 103679
• Status: Published

Opinion

[Cite as Parham v. McManamon, 2016-Ohio-3264.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 103679

DUNCAN PARHAM

PLAINTIFF-APPELLANT

vs.

JOSEPH F. McMANAMON, ET AL.

DEFENDANTS-APPELLEES

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-847772

BEFORE: Jones, A.J., Boyle, J., and Celebrezze, J.

RELEASED AND JOURNALIZED: June 2, 2016 FOR APPELLANT

Duncan Parham, pro se Inmate No. 231-113 Pickaway Correctional Institution 11781 State Route 762 P.O. Box 209 Orient, Ohio 43146

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

BY: Amy Venesile Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 LARRY A. JONES, SR., A.J.:

{¶1} In this accelerated appeal, plaintiff-appellant Duncan Parham appeals from the

trial court’s October 13, 2015 judgment dismissing his civil declaratory judgment action.

Because this case is on the accelerated docket under App.R. 11.1 and Loc.R. 11.1, “we

may render a decision in ‘brief and conclusionary form’ consistent with App.R. 11.1(E).”

State v. Fye, 8th Dist. Cuyahoga No. 102494, 2015-Ohio-4184, ¶ 1, quoting App.R.

11.1(E).

{¶2} In 1991, Parham was found guilty, after a bench trial, of aggravated murder

with a firearm specification. The trial court sentenced him to a life term plus three years

for the firearm specification. Parham appealed, challenging the sufficiency and weight of

the evidence; the effectiveness of trial counsel based on counsel’s failure to file a motion

to suppress and discovery motions, and counsel’s evidentiary decisions; and the trial

court’s decisions on evidentiary issues. State v. Parham, 8th Dist. Cuyahoga No. 61349,

1993 Ohio App. LEXIS 100 (Jan. 14, 1993). This court affirmed the conviction. Id. at

18.

{¶3} In July 2015, Parham filed this civil declaratory judgment against

defendants-appellees, Judge Joseph McManamon (the trial judge who presided over his

criminal case) and John T. Corrigan (the county prosecutor at the time of his indictment

and during his trial). Parham sought a declaration that the trial court did not have

jurisdiction over him at the time of his criminal trial because the grand jury did not return an indictment under the criminal case number. Specifically, Parham contended that an

employee of the prosecutor’s office “forged an indictment” and “forged the grand jury

foreman’s name.” Complaint, ¶ 8.

{¶4} In October 2015, the trial court, sua sponte, dismissed this case for failure to

state a claim upon which relief can be granted, reasoning that Parham should have raised

the issue he attempted to raise in his direct appeal. Parham now presents two

assignments of error for our review, both challenging the trial court’s dismissal of his

complaint. We affirm.

{¶5} The decision to grant declaratory relief is a matter within the sound discretion

of the trial court. State v. Brooks, 133 Ohio App.3d 521, 525, 728 N.E.2d 1119 (4th

Dist.1999), citing Arbor Health Care Co. v. Jackson, 39 Ohio App.3d 183, 185, 530

N.E.2d 928 (10th Dist.1987). Accordingly, we will not reverse the trial court’s dismissal

of Parham’s complaint for declaratory relief unless the trial court abused its discretion.

Brooks at id., citing Arbor Health at id. The term “abuse of discretion” connotes more

than an error of law or judgment; it implies that the court’s attitude is unreasonable,

arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).

{¶6} In order to maintain an action for declaratory judgment, a party must

demonstrate that a real controversy exists between the parties, that the controversy is

justiciable in character, and that speedy relief is necessary to preserve the rights of the

parties. Burger Brewing Co. v. Liquor Control Comm., 34 Ohio St.2d 93, 97, 296 N.E.2d 261 (1973). “A trial court may dismiss a complaint for declaratory relief only if no real

controversy or justiciable issue exists, or if the declaratory judgment will not terminate the

uncertainty or controversy.” Reinbolt v. Natl. Fire Ins. Co. of Hartford, 158 Ohio App.3d

453, 2004-Ohio-4845, 816 N.E.2d 1083, ¶ 13 (6th Dist.), citing Fioresi v. State Farm Mut.

Auto. Ins. Co., 26 Ohio App.3d 203, 499 N.E.2d 5 (1st Dist.1985).

{¶7} A declaratory judgment action is not a part of the criminal appellate process.

Brooks at id., citing Tootle v. Wood, 40 Ohio App.2d 576, 577, 321 N.E.2d 623 (4th

Dist.1974); Richard v. Jones, 8th Dist. Cuyahoga No. 64769, 1994 Ohio App. LEXIS 788

(Mar. 3, 1994). “The effect of a dismissal of a declaratory judgment action without

making a declaration of the parties’ rights is a determination that the plaintiff in the

declaratory judgment action has no right to a declaratory judgment.” State ex rel. Fenske

v. McGovern, 11 Ohio St.3d 129, 133, 464 N.E.2d 525 (1984).

{¶8} Parham appealed his conviction, but did not raise the issue he now seeks to

adjudicate regarding the indictment. He cannot now seek to use declaratory judgment as

part of the criminal appellate process. Moreover, even if he had raised this issue on

appeal, we find that he would not have been successful. Under Crim.R. 12, his challenge

to the indictment would have had to have been made prior to trial. See Crim.R. 12(C)(2).

Failure to make such challenges prior to trial results in a waiver. See Crim.R. 12(H).

{¶9} In light of the above, Parham’s two assigned errors are overruled and the trial

court’s judgment is affirmed.

It is ordered that appellee recover of appellant costs herein taxed. The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas 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.

LARRY A. JONES, SR., ADMINISTRATIVE JUDGE

MARY J. BOYLE, J., and FRANK D. CELEBREZZE, JR., J., CONCUR