State ex rel. Hunter v. Binette (Slip Opinion)

2018 Ohio 2681, 116 N.E.3d 121, 154 Ohio St. 3d 508
CourtOhio Supreme Court
DecidedJuly 11, 2018
Docket2017-1062
StatusPublished
Cited by13 cases

This text of 2018 Ohio 2681 (State ex rel. Hunter v. Binette (Slip Opinion)) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Hunter v. Binette (Slip Opinion), 2018 Ohio 2681, 116 N.E.3d 121, 154 Ohio St. 3d 508 (Ohio 2018).

Opinions

Per Curiam.

*508{¶ 1} Appellant, Sylvester J. Hunter, appeals the decision of the Sixth District Court of Appeals denying his complaint for a writ of mandamus against appellee, Erie County Common Pleas Court Judge Roger E. Binette. Also pending are Hunter's motions for judgment on the pleadings and for an order to the clerk of courts, as well as Judge Binette's motion to dismiss. For the reasons set forth below, we deny the motions and affirm the judgment of the court of appeals.

Background

{¶ 2} Hunter was convicted by a jury of one count of rape. On July 7, 2005, Judge Binette held a sentencing hearing at which he sentenced Hunter to a term *509of imprisonment of 10 to 25 years. Hunter appealed his conviction, which was affirmed. State v. Hunter , 169 Ohio App.3d 65, 2006-Ohio-5113, 861 N.E.2d 898 (6th Dist.).

{¶ 3} On June 26, 2017, Hunter filed an original action for a writ of mandamus in the Sixth District Court of Appeals to compel Judge Binette to vacate his sentence and conduct a new sentencing hearing. Hunter alleged that his sentence was void for at least two reasons.

{¶ 4} First, Hunter alleged that the trial court unlawfully declined to show him his presentence-investigation report ("PSI") before sentencing and that therefore, he was never properly sentenced. He invoked R.C. 2951.03(B)(1), which instructs that the trial court, "at a reasonable time before imposing sentence, shall permit the defendant or the defendant's counsel to read the report." Citing the appellate court's docket sheet showing when the trial court certified the PSI report to the court of appeals, he claimed that a May 30, 2006 entry is proof that he and his attorney were not permitted to see the PSI before his 2005 sentencing.

{¶ 5} Hunter also alleged that the July 8, 2005 entry on the trial court's docket showing the filing of his judgment of conviction and a May 18, 2006 Sixth District judgment entry ordering the transmission of his lower-court record for appeal prove that he was improperly convicted of the same offense in two different courts.

{¶ 6} On June 30, 2017, the court of appeals sua sponte dismissed the complaint as "frivolous." 6th Dist. Erie No. E-17-030, ¶ 2, 8. The court of appeals held that Hunter misunderstood the docket sheet. The trial court's docket sheet shows that the trial court certified the PSI report to the court of appeals on May 18, 2006, as required by App.R. 9(A) as part of the direct-appeal record, and mailed it to the court of appeals on May 30, 2006. These docket entries bear no relation to when the PSI was shared with Hunter. In fact, the trial court's docket shows the filing of the *124PSI on July 6, 2005, one day before the sentencing hearing.

{¶ 7} As for Hunter's second claim, the court of appeals recognized that there was only one judgment entry and that Hunter had once again misunderstood the information on the appeals court's docket. Id. at ¶ 7.

{¶ 8} Hunter appealed and filed a merit brief. On October 23, 2017, he filed a Civ.R. 12(C) motion for judgment on the pleadings, asserting that he was entitled to judgment because the state failed to file a merit brief. The state responded with a motion to dismiss Hunter's merit brief (captioned as a motion to dismiss the complaint) because Hunter had allegedly failed to serve his brief on the state. Alternatively, the state asked for additional time in which to file its merit brief. Hunter filed a brief in opposition to the state's motion on November 3, 2017.

*510Hunter's motion for an order to the clerk of courts

{¶ 9} On August 30, 2017, Hunter filed a motion asking the court to order the Erie County Clerk of Courts to send him a complete index of the items filed in this court. S.Ct.Prac.R. 11.04(A)(1) requires the clerk of the trial court to prepare a certified copy of the docket and transmit it, along with the record, to this court. It does not require the clerk to serve those papers upon the parties to the appeal. We deny the motion.

Hunter's motion for judgment on the pleadings

{¶ 10} Hunter asks for judgment in his favor because the state failed to file a timely merit brief. Our Rules of Practice address this scenario. "If the appellee fails to file a merit brief within the time provided * * *, the Supreme Court may accept the appellant's statement of facts and issues as correct and reverse the judgment if the appellant's brief reasonably appears to sustain reversal ." (Emphasis added.) S.Ct.Prac.R. 16.07(B). Thus, Hunter is not automatically entitled to judgment in his favor; he must demonstrate that he is reasonably entitled to reversal. State ex rel. Willacy v. Smith , 78 Ohio St.3d 47, 49, 676 N.E.2d 109 (1997) (affirming the court of appeals' decision denying the appellant's requests for writs of mandamus and prohibition despite the appellee's failure to file a merit brief). Therefore, we deny Hunter's motion for judgment on the pleadings.

The state's motion to dismiss

{¶ 11} Judge Binette's motion to dismiss is based on Hunter's alleged failure to serve his merit brief. Our rules address this circumstance as well. "When a party * * * fails to serve a party or parties to the case in accordance with [the rules of service], any party adversely affected may file a motion to strike the document that was not served." S.Ct.Prac.R. 3.11(E)(1). If we determine that service was not proper, we may strike the document or order that it be served and impose a new deadline for the filing of any responsive document. S.Ct.Prac.R. 3.11(E)(2). We believe that this is what the state was trying to achieve with its miscaptioned motion to dismiss.

{¶ 12} We deny the motion because we find that even if service was improper, the state was not adversely affected. As discussed in the next section, even without a merit brief from the state, we affirm the judgment of the court of appeals.

The merits of the appeal

{¶ 13} Hunter's merit brief presents nine propositions of law. In proposition of law No. 1, he asserts that the PSI was not journalized in the common pleas court or made available to his counsel. The record does not support that assertion, *125

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Bluebook (online)
2018 Ohio 2681, 116 N.E.3d 121, 154 Ohio St. 3d 508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-hunter-v-binette-slip-opinion-ohio-2018.