[Cite as State ex rel. Davis v. Cuyahoga Cty. Court of Common Pleas, 2011-Ohio-1966.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95777
STATE OF OHIO, EX REL., WILEY DAVIS
RELATOR
vs.
CUYAHOGA COUNTY COURT OF COMMON PLEAS, ET AL.
RESPONDENTS
JUDGMENT: WRITS GRANTED
Writs of Mandamus and Procedendo Motion No. 438599 Order No. 443709
RELEASED DATE: April 15, 2011 FOR RELATOR
Wiley Davis, Jr., Pro Se 2
Inmate No. 263-009 Mansfield Correctional Institution P. O. Box 788 Mansfield, Ohio 44901
FOR RESPONDENTS Judge Deena R. Calabrese Cuyahoga County Common Pleas Court
William D. Mason Cuyahoga County Prosecutor
James E. Moss Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶ 1} On September 27, 2010, the relator, Wiley Davis, commenced this mandamus
and/or procedendo action against the respondents, the Cuyahoga County Common Pleas Court
and Judge Deena Calabrese, to compel the respondents to issue a final, appealable order in the 3
underlying case, State of Ohio v. Wiley Davis, Cuyahoga County Common Pleas Court Case
No. CR-275129. On October 21, 2010, the respondents moved for summary judgment on the
grounds of procedural defects and no clear, legal right to the requested relief. On November
5, 2010, Davis filed a brief in opposition. For the following reasons, this court denies the
respondent’s motion for summary judgment and issues the writs of mandamus and procedendo
to compel the respondent trial judge to issue a final, appealable order, pursuant to State v.
Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163.
{¶ 2} In the underlying case in May 1992, a jury convicted Davis of two counts of
aggravated murder with three felony-murder specifications and a three-year firearm
specification, as well as for counts of kidnaping and aggravated robbery with three-year
firearm specifications. After the jury recommended the death penalty for the aggravated
murder charges, the trial court on June 1, 1992, imposed the death penalty for those charges,
and 15 to 25 years consecutively for the kidnaping and aggravated robbery charges, as well as
three years for the firearm specifications.
{¶ 3} In Davis v. Mitchell (C.A. 6, 2003), 318 F.3d 682, the United States Court of
Appeals for the Sixth Circuit granted Davis habeas corpus relief by ruling that the trial court
had given the jury unconstitutional unanimity instructions during the sentencing phase of the
trial. The Sixth Circuit ordered that a writ of habeas corpus should issue unless the State of 4
Ohio conducted a new penalty phase proceeding within 180 days of remand.
{¶ 4} In early December 2004, the trial court issued a journal entry which provided in
pertinent part as follows: “Re-sentencing hearing held 12/08/2004. Pursuant to the order of
federal court, parties agree to 30 years actual to life plus 3 years actual on firearm specification
on Count 1 to run consecutive to counts 3 and 4. All other conditions of original sentence
remain.” This entry did not reiterate the charges on which Davis was convicted, the means
of conviction, or the sentences for the other offenses. 1
{¶ 5} In State v Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, the
Supreme Court of Ohio ruled: “A judgment of conviction is a final, appealable order under
R.C. 2505.02 when it sets forth (1) the guilty plea, the jury verdict, or the finding of the court
upon which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4)
entry of the journal by the clerk of court.” Syllabus. Furthermore, if the judgment of
conviction is not in final, appealable order form, then mandamus or procedendo is the proper
remedy to compel the trial court to issue a final, appealable order. State ex rel. Culgan v.
Medina County Court of Common Pleas, 119 Ohio St.3d 535, 2008-Ohio-4609, 895 N.E.2d
1 Since the trial court issued this entry, Davis has tried to appeal three times. In Case No. 85675, this court dismissed for failure to file a praecipe. In Case No. 86469, this court denied his motion for a delayed appeal, and in Case No. 87648 this court dismissed the appeal for failure to file a record. 5
805.
{¶ 6} 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 (1987), 33 Ohio St.3d 118, 515 N.E.2d 914. Although mandamus should be
used with caution, the court has discretion in issuing it. State ex rel. Pressley v. Industrial
Commission of Ohio (1967), 11 Ohio St.2d 141, 28 N.E.2d 631, paragraph seven of the
syllabus; State ex rel. Bennett v. Lime (1978), 55 Ohio St.2d 62, 378 N.E.2d 152; State ex rel.
Dollison v. Reddy (1978), 55 Ohio St.2d 59, 378 N.E.2d 150; and State ex rel. Mettler v.
Commissioners of Athens County (1941), 139 Ohio St. 86, 38 N.E.2d 393.
{¶ 7} The writ of procedendo is merely an order from a court of superior jurisdiction
to one of inferior jurisdiction to proceed to judgment. Yee v. Erie County Sheriff’s
Department (1990), 51 Ohio St.3d 43, 553 N.E.2d 1354. Procedendo is appropriate when a
court has either refused to render a judgment or has unnecessarily delayed proceeding to
judgment. State ex rel. Watkins v. Eighth District Court of Appeals, 82 Ohio St.3d 532,
1998-Ohio-190, 696 N.E.2d 1079. Moreover, it will not issue when there is an adequate
remedy at law. State ex rel. Utley v. Abruzzo (1985), 17 Ohio St.3d 202, 478 N.E.2d 789 and
State ex rel. Hansen v. Reed (1992), 63 Ohio St.3d 597, 589 N.E.2d 1324. 6
{¶ 8} In the present case, the December 2004 sentencing entry does not comply with
Baker and Crim.R. 32. It does not state the means of conviction for any of the counts, and it
specifies the sentence only for count 1. The respondents have the clear, legal duty to issue a
final judgment of conviction, which must be compliant with Baker and Crim.R. 32, and a
criminal defendant has the clear legal right to such a judgment. As shown by Culgan, there is
no adequate remedy at law; the Supreme Court of Ohio implicitly rejected the principle that a
motion for resentencing was an adequate remedy.
{¶ 9} Accordingly, the court issues the writs of mandamus and procedendo and orders
the respondents to issue a final, appealable order in the underlying case which removes the
various jurisdictional impediments under Crim.R. 32, and Baker.
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[Cite as State ex rel. Davis v. Cuyahoga Cty. Court of Common Pleas, 2011-Ohio-1966.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95777
STATE OF OHIO, EX REL., WILEY DAVIS
RELATOR
vs.
CUYAHOGA COUNTY COURT OF COMMON PLEAS, ET AL.
RESPONDENTS
JUDGMENT: WRITS GRANTED
Writs of Mandamus and Procedendo Motion No. 438599 Order No. 443709
RELEASED DATE: April 15, 2011 FOR RELATOR
Wiley Davis, Jr., Pro Se 2
Inmate No. 263-009 Mansfield Correctional Institution P. O. Box 788 Mansfield, Ohio 44901
FOR RESPONDENTS Judge Deena R. Calabrese Cuyahoga County Common Pleas Court
William D. Mason Cuyahoga County Prosecutor
James E. Moss Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶ 1} On September 27, 2010, the relator, Wiley Davis, commenced this mandamus
and/or procedendo action against the respondents, the Cuyahoga County Common Pleas Court
and Judge Deena Calabrese, to compel the respondents to issue a final, appealable order in the 3
underlying case, State of Ohio v. Wiley Davis, Cuyahoga County Common Pleas Court Case
No. CR-275129. On October 21, 2010, the respondents moved for summary judgment on the
grounds of procedural defects and no clear, legal right to the requested relief. On November
5, 2010, Davis filed a brief in opposition. For the following reasons, this court denies the
respondent’s motion for summary judgment and issues the writs of mandamus and procedendo
to compel the respondent trial judge to issue a final, appealable order, pursuant to State v.
Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163.
{¶ 2} In the underlying case in May 1992, a jury convicted Davis of two counts of
aggravated murder with three felony-murder specifications and a three-year firearm
specification, as well as for counts of kidnaping and aggravated robbery with three-year
firearm specifications. After the jury recommended the death penalty for the aggravated
murder charges, the trial court on June 1, 1992, imposed the death penalty for those charges,
and 15 to 25 years consecutively for the kidnaping and aggravated robbery charges, as well as
three years for the firearm specifications.
{¶ 3} In Davis v. Mitchell (C.A. 6, 2003), 318 F.3d 682, the United States Court of
Appeals for the Sixth Circuit granted Davis habeas corpus relief by ruling that the trial court
had given the jury unconstitutional unanimity instructions during the sentencing phase of the
trial. The Sixth Circuit ordered that a writ of habeas corpus should issue unless the State of 4
Ohio conducted a new penalty phase proceeding within 180 days of remand.
{¶ 4} In early December 2004, the trial court issued a journal entry which provided in
pertinent part as follows: “Re-sentencing hearing held 12/08/2004. Pursuant to the order of
federal court, parties agree to 30 years actual to life plus 3 years actual on firearm specification
on Count 1 to run consecutive to counts 3 and 4. All other conditions of original sentence
remain.” This entry did not reiterate the charges on which Davis was convicted, the means
of conviction, or the sentences for the other offenses. 1
{¶ 5} In State v Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, the
Supreme Court of Ohio ruled: “A judgment of conviction is a final, appealable order under
R.C. 2505.02 when it sets forth (1) the guilty plea, the jury verdict, or the finding of the court
upon which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4)
entry of the journal by the clerk of court.” Syllabus. Furthermore, if the judgment of
conviction is not in final, appealable order form, then mandamus or procedendo is the proper
remedy to compel the trial court to issue a final, appealable order. State ex rel. Culgan v.
Medina County Court of Common Pleas, 119 Ohio St.3d 535, 2008-Ohio-4609, 895 N.E.2d
1 Since the trial court issued this entry, Davis has tried to appeal three times. In Case No. 85675, this court dismissed for failure to file a praecipe. In Case No. 86469, this court denied his motion for a delayed appeal, and in Case No. 87648 this court dismissed the appeal for failure to file a record. 5
805.
{¶ 6} 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 (1987), 33 Ohio St.3d 118, 515 N.E.2d 914. Although mandamus should be
used with caution, the court has discretion in issuing it. State ex rel. Pressley v. Industrial
Commission of Ohio (1967), 11 Ohio St.2d 141, 28 N.E.2d 631, paragraph seven of the
syllabus; State ex rel. Bennett v. Lime (1978), 55 Ohio St.2d 62, 378 N.E.2d 152; State ex rel.
Dollison v. Reddy (1978), 55 Ohio St.2d 59, 378 N.E.2d 150; and State ex rel. Mettler v.
Commissioners of Athens County (1941), 139 Ohio St. 86, 38 N.E.2d 393.
{¶ 7} The writ of procedendo is merely an order from a court of superior jurisdiction
to one of inferior jurisdiction to proceed to judgment. Yee v. Erie County Sheriff’s
Department (1990), 51 Ohio St.3d 43, 553 N.E.2d 1354. Procedendo is appropriate when a
court has either refused to render a judgment or has unnecessarily delayed proceeding to
judgment. State ex rel. Watkins v. Eighth District Court of Appeals, 82 Ohio St.3d 532,
1998-Ohio-190, 696 N.E.2d 1079. Moreover, it will not issue when there is an adequate
remedy at law. State ex rel. Utley v. Abruzzo (1985), 17 Ohio St.3d 202, 478 N.E.2d 789 and
State ex rel. Hansen v. Reed (1992), 63 Ohio St.3d 597, 589 N.E.2d 1324. 6
{¶ 8} In the present case, the December 2004 sentencing entry does not comply with
Baker and Crim.R. 32. It does not state the means of conviction for any of the counts, and it
specifies the sentence only for count 1. The respondents have the clear, legal duty to issue a
final judgment of conviction, which must be compliant with Baker and Crim.R. 32, and a
criminal defendant has the clear legal right to such a judgment. As shown by Culgan, there is
no adequate remedy at law; the Supreme Court of Ohio implicitly rejected the principle that a
motion for resentencing was an adequate remedy.
{¶ 9} Accordingly, the court issues the writs of mandamus and procedendo and orders
the respondents to issue a final, appealable order in the underlying case which removes the
various jurisdictional impediments under Crim.R. 32, and Baker.
{¶ 10} The respondents’s reliance on State v. Ketterer, 126 Ohio St.3d 448,
2010-Ohio-3831, 935 N.E.2d 9 is misplaced. In Ketterer the Supreme Court of Ohio held
that in death penalty cases the final, appealable order consists of both the sentencing opinion
filed pursuant to R.C. 2929.03(F) and the judgment of conviction filed pursuant to Crim.R.
32(C). So long as all the elements required by Baker are in those two orders, a final,
appealable order is presented. However, as of December 2004, this case was no longer a
capital case, and Ketterer no longer applies. This underscores the need for having a judgment
of conviction fully compliant with Crim.R. 32(C). 7
{¶ 11} The respondents also argue that the Court of Common Pleas is not a proper
party. The Supreme Court of Ohio implicitly rejected this argument in Culgan, when it
granted the writs of mandamus and procedendo to compel the appellees, which were the trial
court judge and the Medina County Court of Common Pleas, to issue a sentencing entry that
complies with Crim.R. 32(C) and constitutes a final, appealable order.
{¶ 12} The respondents raise the issue of pleading deficiencies. In weighing the
possible defects in Davis’s pleadings against the deficiencies in the December 2004 order, the
court decides to grant the writs. Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 297
N.E.2d 113.
{¶ 13} Accordingly, the court issues the writs of mandamus and precedendo and orders
the respondents to issue a final, appealable order in the underlying case which removes the
various jurisdictional impediments under Crim.R. 32, and Baker. Each side to bear its own
costs. The court directs the Clerk of the Eighth District Court of Appeals to serve notice of
this judgment and its date of entry upon the journal upon all the parties. Civ.R. 59(B).
Writs granted.
PATRICIA ANN BLACKMON, JUDGE 8
KENNETH A. ROCCO, P.J., and MELODY J. STEWART, J., CONCUR