State ex rel. Freeman v. O'Donnell

2023 Ohio 4662

• Court: Ohio Court of Appeals
• Decided: December 19, 2023
• Docket: 113187
• Status: Published

Opinion

[Cite as State ex rel. Freeman v. O'Donnell, 2023-Ohio-4662.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, EX REL., MAURICE FREEMAN, :

Relator, : No. 113187 v. :

JUDGE JENNIFER O’DONNELL, :

Respondent. :

JOURNAL ENTRY AND OPINION

JUDGMENT: WRITS DENIED DATED: December 19, 2023

Writs of Prohibition and Mandamus Motion No. 568509 Order No. 570500

Appearances:

Maurice Freeman, pro se.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for respondent.

EILEEN T. GALLAGHER, J.:

On September 19, 2023, the relator, Maurice Freeman, commenced this

mandamus and prohibition action against the respondent, Judge Nancy McDonnell.1 Freeman seeks to void his conviction for having a weapon while under

disability in the underlying case, State v. Freeman, Cuyahoga C.P. No. CR-01-

410924-ZA. He argues that the trial court’s summary disposition of the weapons

charge deprived him of his right to counsel and under Johnson v. Zerbst, 304 U.S.

458, 58 S.Ct. 1019, 82 L.Ed.2d 1461 (1938), and State ex rel. Ogle v. Hocking Cty.

Common Pleas Court, 167 Ohio St.3d 181, 2021-Ohio-4453, 190 N.E.2d 594, the

deprivation of the right to counsel divests the trial court of jurisdiction, rendering

the conviction void. On October 11, 2023, the respondent, through the Cuyahoga

County Prosecutor, moved for summary judgment, and Freeman filed his brief in

opposition on November 6, 2023. For the following reasons, this court grants the

respondent’s dispositive motion and denies the application for writs of mandamus

and prohibition.

FACTUAL BACKGROUND

The evidence in the underlying case shows that on July 25, 2001, after

making a phone call at his girlfriend’s house, Freeman entered the rear of an

automobile that had stopped when Freeman had called out to the front seat

passenger. Freeman had been in the car only a short time before the front seat

passenger heard a shot fired. He saw Freeman pulling the gun back, and the driver,

Alphonso Amos, was trying to snatch the weapon away. A witness who was leaving

the girlfriend’s house saw the car strike a utility pole. The driver leaped out and ran

1 Judge Jennifer O’Donnell has succeeded Judge Nancy McDonnell. Pursuant to Civ.R. 21 and App.R. 29(C), this court substitutes Judge O’Donnell as the respondent. a short distance while trailing blood before collapsing. The witness saw the car back

away from the pole and drive next to Amos, and he heard another shot, before the

car drove away. Amos had suffered a mortal gunshot wound. However, before

dying, he said that Maurice Freeman had shot him.

The grand jury indicted Freeman on two counts of aggravated murder

with two firearm specifications, one count of aggravated robbery, and one count of

having a weapon while under disability. Before trial, the second count of aggravated

murder was nolled. The jury convicted him of aggravated murder but found him not

guilty of aggravated robbery. Freeman had agreed to try the weapons charge to the

judge. State v. Freeman, 8th Dist. Cuyahoga No. 80720, 2002-Ohio-4572.

After the jury trial, the trial judge and the attorneys were discussing

sentencing. The following discourse ensued:

[The prosecuting attorney]: Your Honor, there’s the issue of the weapons while under disability.

The Court: Yes. With respect to Count 4, the case was tried to myself, having the weapon under disability count, and I, in fact, find the defendant guilty of that charge. He will be sentenced on that case as well.

All right. Anything further on behalf of either the State or the defense: [The prosecuting attorney]: No, your Honor.

[Defense attorney]: No, your Honor.

(Tr. 788-789.)

The trial court sentenced Freeman to three years on the firearm

specifications, 20 years to life on the aggravated murder charge, and one year

concurrent on the weapons charge. In the ensuing 20 years, Freeman has filed appeals, habeas corpus

petitions, an App.R. 26(B) application to reopen, and postconviction relief petitions.

In his April 2020 postconviction petition he contested the conviction for having a

weapon while under disability. He argued, inter alia, that he was not allowed

appointed counsel during the trial for the weapons charge. He framed this argument

as follows: his counsel was not allowed to present argument or evidence, the count

was improperly numbered and thus void, he was not allowed a jury trial, and the

trial court rendered the verdict at an improper moment in the trial. In Ohio v.

Freeman, 8th Dist. Cuyahoga No. 109744, 2012-Ohio-1489, this court held that

these claims were, once again, meritless. It ruled that “Freeman was arraigned on

these charges on August 9, 2001, at which time he was appointed counsel who

continued to represent him throughout the pretrial and trial process and through

conviction.” Id. at ¶ 16. Freeman now tries to resurrect this argument in the

framework of mandamus and prohibition.

LEGAL ANALYSIS

The principles governing prohibition are well established. Its requisites

are (1) the respondent against whom it is sought is about to exercise judicial power,

(2) the exercise of such power is unauthorized by law, and (3) there is no adequate

remedy at law. State ex rel. Largent v. Fisher, 43 Ohio St.3d 160, 540 N.E.2d 239

(1989). Furthermore, if a petitioner had an adequate remedy, relief in prohibition

is precluded, even if the remedy was not used. State ex rel. Lesher v. Kainrad, 65

Ohio St.2d 68, 417 N.E.2d 1382 (1981). Prohibition will not lie unless it clearly appears that the court has no jurisdiction of the cause that it is attempting to

adjudicate or the court is about to exceed its jurisdiction. State ex rel. Ellis v.

McCabe, 138 Ohio St. 417, 35 N.E.2d 571 (1941), paragraph three of the syllabus.

“The writ will not issue to prevent an erroneous judgment, or to serve the purpose

of appeal, or to correct mistakes of the lower court in deciding questions within its

jurisdiction.” State ex rel. Sparto v. Juvenile Court of Darke Cty., 153 Ohio St. 64,

65, 90 N.E.2d 598 (1950). Furthermore, it should be used with great caution and

not issue in a doubtful case. State ex rel. Merion v. Tuscarawas Cty. Court of

Common Pleas, 137 Ohio St. 273, 28 N.E.2d 641 (1940); and Reiss v. Columbus

Mun. Court, 76 Ohio Law Abs. 141, 145 N.E.2d 447 (10th Dist.1956). Nevertheless,

when a court is patently and unambiguously without jurisdiction to act whatsoever,

the availability or adequacy of a remedy is immaterial to the issuance of a writ of

prohibition. State ex rel. Tilford v. Crush, 39 Ohio St.3d 174, 529 N.E.2d 1245

(1988). However, absent such a patent and unambiguous lack of jurisdiction, a

court having general jurisdiction of the subject matter of an action has authority to

determine its own jurisdiction. A party challenging the court’s jurisdiction has an

adequate remedy at law via an appeal from the court’s holding that it has

jurisdiction. State ex rel. Rootstown Local School Dist. Bd. of Edn. v. Portage Cty.

Court of Common Pleas, 78 Ohio St.3d 489, 678 N.E.2d 1365 (1997). Moreover, this

court has discretion in issuing the writ of prohibition. State ex rel. Gilligan v.

Hoddinott, 36 Ohio St.2d 127, 304 N.E.2d 382 (1973). 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. Additionally, although mandamus may be used to compel a court to exercise

judgment or to discharge a function, it may not control judicial discretion, even if

that discretion is grossly abused. 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); 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). Furthermore, if the relator had an adequate remedy, regardless of whether it

was used, relief in mandamus is precluded. State ex rel. Tran v. McGrath, 78 Ohio

St.3d 45, 676 N.E.2d 108 (1997); State ex rel. Boardwalk Shopping Ctr., Inc. v.

Court of Appeals for Cuyahoga Cty., 56 Ohio St.3d 33, 564 N.E.2d 86 (1990).

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).

In Johnson v. Zerbst, supra, the defendant was convicted of uttering

counterfeit money, and he never had counsel during the proceedings. In reversing

the conviction, the United States Supreme Court held that “[a] court’s jurisdiction at the beginning of trial may be lost ‘in the course of the proceedings’ due to failure

to complete the court — as the Sixth Amendment requires — by providing counsel

for an accused who is unable to obtain counsel, who has not intelligently waived this

constitutional guaranty, and whose life or liberty is at stake.” 304 U.S. 458, 468, 58

S.Ct. 1019, 82 L.Ed.2d 1461 (1938).

In State ex rel. Ogle, supra, the defendant had counsel during the trial

and she was convicted of assaulting a peace officer. However, after trial the judge

placed her on house arrest and ordered her to have no contact, direct or indirect,

with any juror, witness, lawyer, or court. Thus, she did not have counsel at the

sentencing, but she explicitly did not waive her right to counsel. Nevertheless, the

trial court sentenced her. Approximately nine years after her conviction, Ogle

brought claims for mandamus and prohibition to vacate the sentencing entry

because the trial court lacked jurisdiction. The court of appeal dismissed the writ

action because the trial court had general jurisdiction over the case and appeal was

an adequate remedy at law precluding the writs. The Supreme Court of Ohio

followed Zerbst, and held that depriving a defendant of counsel would divest the

trial court of jurisdiction or at least be a structural error as to demand reversal.

Thus, the Supreme Court reversed the dismissal and remanded the writ action for

further proceedings. 167 Ohio St.3d 181, 2021-Ohio-4453, 190 N.E.2d 594.

Freeman now argues that the summary manner in which the trial court

resolved the weapons while under disability charge deprived him of his right to

counsel and thus divested the trial court of jurisdiction over that charge. Mandamus or prohibition will issue if there is a complete lack of jurisdiction, notwithstanding

the availability of appeal. Ogle at ¶ 21; and State ex rel. State Farm Mut. Ins. Co. v.

O’Donnell, 163 Ohio St.3d 541, 2021-Ohio-1205, 171 N.E.3d 321, ¶ 8.

However, as previously stated by this court and unlike Zerbst and

Ogle, Freeman had counsel throughout the entire proceedings, including during the

judge’s resolution of the weapons charge. In fact, the trial court solicited the input

of defense counsel immediately after announcing the decision. This court rules that

the trial court in the handling of the weapons charge did not deprive Freeman of his

right to counsel and thus did not divest the trial court of jurisdiction over the charge,

despite however Freeman protests otherwise.

Because the trial court did not lose jurisdiction over the charge, all of

the other principles regarding writs remain effective, such as having or had an

adequate remedy at law and that res judicata precludes arguments that were or

could have been made. Brooks v. Kelly, 144 Ohio St.3d 322, 2015-Ohio-2805, 43

N.E.3d 385.

Accordingly, this court grants the respondent’s dispositive motion and

denies this application for writs of mandamus and prohibition. Relator to pay costs.

This court directs the clerk of courts to serve all parties notice of the judgment and

its date of entry upon the journal as required by Civ.R. 58(B). Writs denied.

_________________________ EILEEN T. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., and EMANUELLA D. GROVES, J., CONCUR