Silver v. State

2022 Ohio 1848

• Court: Ohio Court of Appeals
• Decided: June 1, 2022
• Docket: 111557
• Status: Published

Opinion

[Cite as Silver v. State, 2022-Ohio-1848.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

TERRELL SILVER, :

Relator, : No. 111557 v. :

STATE OF OHIO, :

Respondent. :

JOURNAL ENTRY AND OPINION

JUDGMENT: PETITION DISMISSED DATED: June 1, 2022

Writ of Mandamus Order No. 555338

Appearances:

Terrell Silver, pro se.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, for respondent.

MICHELLE J. SHEEHAN, P.J.:

On May 27, 2022, the relator, Terrell Silver, commenced this

mandamus action against the respondent, the state of Ohio, to dismiss his two

underlying cases, State v. Silver, Cuyahoga C. P. Nos. CR-21-662895-A (“Case One”)

and CR-21-663017-A (“Case Two”). He argues that the common pleas court lacked jurisdiction over the cases because the initial complaint was insufficient. For the

following reasons, this court dismisses the petition for a writ of mandamus.

On May 9, 2022, in Case One, Silver pleaded guilty to attempted

robbery with a one-year firearm specification and having weapons while under

disability. The trial court sentenced him to one year on the firearm specification

consecutive to 24 months on attempted robbery and 24 months for the weapons

charge. In Case Two, Silver pleaded guilty to attempted robbery and was sentenced

to 18 months on that charge. The court ordered the three counts to be served

concurrently. The court also denied Silver’s motion to withdraw his guilty plea.

Silver argues that in Case One, the police report, upon which the

arrest and search warrants were based, was defective because it did not explain how

the police came to believe that Silver had committed the alleged crimes. He further

asserts that it was prepared after he was arrested. Thus, there was not probable

cause to charge him or obtain any evidence. Furthermore, the trial judge denied his

motion to withdraw his guilty plea despite Silver arguing the defective complaint.

Silver argues this was a denial of his rights to due process and equal protection and

deprived the trial court of jurisdiction.

The requisites for mandamus are well established: (1) the relator

must have a clear legal right to the requested relief, (2) the respondent must have a

clear legal duty to perform the requested relief, and (3) there must be no adequate

remedy at law. State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914

(1987). Furthermore, mandamus is not a substitute for appeal. State ex rel. Daggett v. Gessaman, 34 Ohio St.2d 55, 295 N.E.2d 659 (1973), and State ex rel. Pressley v.

Indus. Comm. of Ohio, 11 Ohio St.2d 141, 228 N.E.2d 631 (1967), paragraph three of

the syllabus. Thus, mandamus does not lie to correct errors and procedural

irregularities in the course of a case. State ex rel. Jerninghan v. Gaughan, 8th Dist.

Cuyahoga No. 67787, 1994 Ohio App. LEXIS 6227 (Sept. 26, 1994). Moreover,

mandamus is an extraordinary remedy that is to be exercised with caution and only

when the right is clear. It should not issue in doubtful cases. State ex rel. Taylor v.

Glasser, 50 Ohio St.2d 165, 364 N.E.2d 1 (1977), and State ex rel. Connole v.

Cleveland Bd. of Edn., 87 Ohio App.3d 43, 621 N.E.2d 850 (8th Dist.1993).

In the present case, appeal or a delayed appeal are adequate remedies

at law that preclude the writ of mandamus. State ex rel. Sands v. Court of Common

Pleas, 155 Ohio St.3d 238, 2018-Ohio-4245, 120 N.E.2d 799. Mandamus may not

be used to challenge a defective indictment. State ex rel. Hamilton v. Brunner, 105

Ohio St.3d 304, 2005-Ohio-1735, 825 N.E.2d 607. It cannot be used to challenge

the sufficiency of the evidence. State ex rel. Thomas v. Franklin Cty. Court of

Common Pleas, 141 Ohio St.3d 547, 2015-Ohio-474, 26 N.E.3d 810, and Thorne v.

State, 8th Dist. Cuyahoga No. 85024, 2004-Ohio-6288. The court further notes that

Silver has 30 days from May 9, 2022, in which to appeal as a matter of right and that

the trial court appointed the public defender as appellate counsel.

Moreover, the grand jury indicted Silver on the various charges. An

indictment provides the common pleas court with proper jurisdiction on all the

charges regardless of the existence or sufficiency of a complaint. State v. Quinnie, 8th Dist. Cuyahoga No. 105104, 2017-Ohio-2663, and State ex rel. Elder v. Matia,

8th Dist. Cuyahoga No. 101195, 2014-Ohio-3598.

A plea of guilty waives all appealable errors that may have occurred

during the trial unless such error precluded the defendant from knowingly and

voluntarily entering his guilty plea. State v. Kelly, 57 Ohio St.3d 127, 566 N.E.2d

658 (1991). Specifically, a guilty plea operates as a waiver of any claimed errors

regarding suppression issues. State v. Collier, 8th Dist. Cuyahoga No. 95572, 2011-

Ohio-6154. A guilty plea waives any alleged defects in the indictment. State v.

Szidik, 8th Dist. Cuyahoga No. 95644, 2011-Ohio-4093.

Relator also did not comply with R.C. 2969.25(C), which requires that

an inmate file a certified statement from his prison cashier setting forth the balance

in his private account for each of the preceding six months. This also is a sufficient

reason to deny the mandamus, deny indigency status, and assess costs against the

relator. State ex rel. Pamer v. Collier, 108 Ohio St.3d 492, 2006-Ohio-1507, 844

N.E.2d 842; State ex rel. Hunter v. Cuyahoga Cty. Court of Common Pleas, 88 Ohio

St.3d 176, 2000-Ohio-285, 724 N.E.2d 420; and Hazel v. Knab, 130 Ohio St.3d 22,

2011-Ohio-4608, 955 N.E.2d 378 — the defect may not be cured by subsequent

filings. Nor was the poverty affidavit properly notarized. Chari v. Vore, 91 Ohio

St.3d 323, 744 N.E.2d 763 (2001).

Accordingly, this court sua sponte dismisses the petition for a writ of

mandamus. Relator to pay costs. This court directs the clerk of court to serve all parties notice of the judgment and its date of entry upon the journal as required by

Civ.R. 58(B).

Petition dismissed.

_________________________________ MICHELLE J. SHEEHAN, PRESIDING JUDGE

MARY EILEEN KILBANE, J., and EILEEN T. GALLAGHER, J., CONCUR