[Cite as State ex rel. Lofton v. Clancy, 2020-Ohio-4570.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE EX REL., JAQUISE LOFTON, :
Relator, : No. 109830 v. :
JUDGE MAUREEN CLANCY, :
Respondent. :
JOURNAL ENTRY AND OPINION
JUDGMENT: WRIT DISMISSED DATED: September 18, 2020
Writ of Mandamus Motion No. 540272 Order No. 540906
Appearances:
Jaquise Lofton, pro se.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for respondent.
FRANK D. CELEBREZZE, JR., J.:
Relator, Jaquise Lofton, requests a writ of mandamus directing
respondent, Judge Maureen Clancy,1 to resentence him to properly advise him of his
Relator named Judge Timothy E. McMonagle as respondent in his complaint. 1
Pursuant to App.R. 29(C)(1), Judge Maureen Clancy, who currently holds the seat on the appellate rights. Relator has an adequate remedy in the ordinary course of law.
Therefore, respondent’s motion to dismiss is granted, and relator’s complaint for
writ of mandamus is dismissed.
I. Factual and Procedural History
According to the complaint filed July 15, 2020, relator was a criminal
defendant in three cases, Cuyahoga C.P. No. CR-09-521349-A, CR-09-523781-A,
and CR-09-525202-B. In 2010, he entered guilty pleas in these cases and was
sentenced. Relator asserts that respondent failed to advise him of his appellate
rights pursuant to Crim.R. 32(B)(2)-(B)(3). As a result, relator did not timely appeal
from these convictions. Relator asserts that on January 4, 2016, he filed a motion
for delayed appeal with this court, which was denied on January 21, 2016. The next
action he took to redress this claimed grievance was to file the instant action on
July 15, 2020. Relator seeks an order from this court requiring respondent to
resentence him to properly inform him of his appellate rights. Respondent filed a
motion to dismiss on August 3, 2020. There, she argued that relator was not entitled
to relief in mandamus based on the allegations made in the complaint. Relator did
not timely oppose the motion to dismiss.
II. Law and Analysis
The case is before us on respondent’s motion to dismiss. As such, this
court must take as admitted all material factual allegations in the complaint, and
common pleas court previously held by Judge McMonagle, was previously substituted as a party pursuant to Civ.R. 25(D). construe all reasonable inferences in favor of the nonmovant. State ex rel. Hanson
v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992).
In order to grant the motion and dismiss the complaint, “‘it must appear beyond
doubt from the complaint that the plaintiff can prove no set of facts entitling him to
recovery.’” Id., quoting O’Brien v. Univ. Community Tenants Union, 42 Ohio St.2d
242, 242, 327 N.E.2d 753 (1975).
Mandamus is appropriate when relators show by clear and
convincing evidence that (1) that they have a clear legal right to the requested relief,
(2) that respondents have a clear legal duty to provide the requested relief, and (3)
that they have no plain and adequate legal remedy. State ex rel. Kerns v. Simmers,
153 Ohio St.3d 103, 2018-Ohio-256, 101 N.E.3d 430, ¶ 5.
Lofton claims that he was entitled to an explanation of his appellate
rights when he was sentenced in his three criminal cases and that obligation has yet
to be fulfilled.
Crim.R. 32(B)(2) states in part, “After imposing sentence in a serious
offense, the court shall advise the defendant of the defendant’s right, where
applicable, to appeal or to seek leave to appeal the sentence imposed.” Crim.R.
32(B)(3) goes on to state,
If a right to appeal or a right to seek leave to appeal applies under division (B)(1) or (B)(2) of this rule, the court also shall advise the defendant of all of the following:
(a) That if the defendant is unable to pay the cost of an appeal, the defendant has the right to appeal without payment; (b) That if the defendant is unable to obtain counsel for an appeal, counsel will be appointed without cost;
(c) That if the defendant is unable to pay the costs of documents necessary to an appeal, the documents will be provided without cost;
(d) That the defendant has a right to have a notice of appeal timely filed on his or her behalf.
Relator has alleged that these provisions apply to him. According to
this rule of criminal procedure, relator has a clear legal right to an explanation of his
appellate rights during sentencing.
Relator claims he never received such an advisement, but he did not
attach portions of the transcript from his sentencing hearing to demonstrate that
the trial court failed to inform him of his appellate rights during his sentencing.
Relator did attach copies of the sentencing entries from his cases, which did not
include any mention of his appellate rights. He claims that an explanation of his
appellate rights must appear in the journal entries of sentence, and such a
notification was not incorporated into his sentencing entries. He concludes that, as
a result, he is required to be resentenced by respondent so that he may be properly
informed of his appellate rights. Construing this evidence in relator’s favor as we
must, this court will assume that relator was not informed of his appellate rights.
However, relator’s claim that he is entitled to a writ of mandamus
does not immediately follow. Relator must have no adequate remedy in the ordinary
course of law to be entitled to relief in mandamus. State ex rel Kerns v. Simmers,
153 Ohio St.3d 103, 2018-Ohio-256, 101 N.E.3d 430, ¶ 5. Relator claims that he has no adequate remedy because he filed a motion for delayed appeal, and that was
denied. Setting aside the fact that a motion for delayed appeal constitutes a remedy
that was available to relator, his claims that mandamus is available relies on State v.
Hunter, 8th Dist. Cuyahoga No. 92626, 2010-Ohio-657.
In Hunter, after finding that a sentence that was imposed on an
appellant was void, this court went on to find that the appellant was not properly
informed of his appellate rights. Id. at ¶ 18. The Hunter court stated that the trial
court failed to inform Hunter of his appellate rights “under Crim.R. 32, including
the right to counsel. Therefore, the appropriate avenue of relief is for the trial court
to resentence Hunter advising him of these rights, thus reinstating the time within
which he may file a timely notice of appeal on the resentencing.” Id. at ¶ 22.
Hunter actually demonstrates that relator has an adequate remedy at
law. State ex rel. Wright v. Cuyahoga Cty. Court, 8th Dist. Cuyahoga No. 96397,
2011-Ohio-2159, ¶ 3 (rejecting a claim premised on Hunter similar to the one
advanced by relator in the present action).
Further, the Supreme Court of Ohio has recognized that a motion for
resentencing filed with the trial court is a proper means to address the failure of a
judge to advise criminal defendants of their appellate rights after the imposition of
sentence. State ex rel. Hill v. Navarre, Slip Opinion No.
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[Cite as State ex rel. Lofton v. Clancy, 2020-Ohio-4570.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE EX REL., JAQUISE LOFTON, :
Relator, : No. 109830 v. :
JUDGE MAUREEN CLANCY, :
Respondent. :
JOURNAL ENTRY AND OPINION
JUDGMENT: WRIT DISMISSED DATED: September 18, 2020
Writ of Mandamus Motion No. 540272 Order No. 540906
Appearances:
Jaquise Lofton, pro se.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for respondent.
FRANK D. CELEBREZZE, JR., J.:
Relator, Jaquise Lofton, requests a writ of mandamus directing
respondent, Judge Maureen Clancy,1 to resentence him to properly advise him of his
Relator named Judge Timothy E. McMonagle as respondent in his complaint. 1
Pursuant to App.R. 29(C)(1), Judge Maureen Clancy, who currently holds the seat on the appellate rights. Relator has an adequate remedy in the ordinary course of law.
Therefore, respondent’s motion to dismiss is granted, and relator’s complaint for
writ of mandamus is dismissed.
I. Factual and Procedural History
According to the complaint filed July 15, 2020, relator was a criminal
defendant in three cases, Cuyahoga C.P. No. CR-09-521349-A, CR-09-523781-A,
and CR-09-525202-B. In 2010, he entered guilty pleas in these cases and was
sentenced. Relator asserts that respondent failed to advise him of his appellate
rights pursuant to Crim.R. 32(B)(2)-(B)(3). As a result, relator did not timely appeal
from these convictions. Relator asserts that on January 4, 2016, he filed a motion
for delayed appeal with this court, which was denied on January 21, 2016. The next
action he took to redress this claimed grievance was to file the instant action on
July 15, 2020. Relator seeks an order from this court requiring respondent to
resentence him to properly inform him of his appellate rights. Respondent filed a
motion to dismiss on August 3, 2020. There, she argued that relator was not entitled
to relief in mandamus based on the allegations made in the complaint. Relator did
not timely oppose the motion to dismiss.
II. Law and Analysis
The case is before us on respondent’s motion to dismiss. As such, this
court must take as admitted all material factual allegations in the complaint, and
common pleas court previously held by Judge McMonagle, was previously substituted as a party pursuant to Civ.R. 25(D). construe all reasonable inferences in favor of the nonmovant. State ex rel. Hanson
v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378 (1992).
In order to grant the motion and dismiss the complaint, “‘it must appear beyond
doubt from the complaint that the plaintiff can prove no set of facts entitling him to
recovery.’” Id., quoting O’Brien v. Univ. Community Tenants Union, 42 Ohio St.2d
242, 242, 327 N.E.2d 753 (1975).
Mandamus is appropriate when relators show by clear and
convincing evidence that (1) that they have a clear legal right to the requested relief,
(2) that respondents have a clear legal duty to provide the requested relief, and (3)
that they have no plain and adequate legal remedy. State ex rel. Kerns v. Simmers,
153 Ohio St.3d 103, 2018-Ohio-256, 101 N.E.3d 430, ¶ 5.
Lofton claims that he was entitled to an explanation of his appellate
rights when he was sentenced in his three criminal cases and that obligation has yet
to be fulfilled.
Crim.R. 32(B)(2) states in part, “After imposing sentence in a serious
offense, the court shall advise the defendant of the defendant’s right, where
applicable, to appeal or to seek leave to appeal the sentence imposed.” Crim.R.
32(B)(3) goes on to state,
If a right to appeal or a right to seek leave to appeal applies under division (B)(1) or (B)(2) of this rule, the court also shall advise the defendant of all of the following:
(a) That if the defendant is unable to pay the cost of an appeal, the defendant has the right to appeal without payment; (b) That if the defendant is unable to obtain counsel for an appeal, counsel will be appointed without cost;
(c) That if the defendant is unable to pay the costs of documents necessary to an appeal, the documents will be provided without cost;
(d) That the defendant has a right to have a notice of appeal timely filed on his or her behalf.
Relator has alleged that these provisions apply to him. According to
this rule of criminal procedure, relator has a clear legal right to an explanation of his
appellate rights during sentencing.
Relator claims he never received such an advisement, but he did not
attach portions of the transcript from his sentencing hearing to demonstrate that
the trial court failed to inform him of his appellate rights during his sentencing.
Relator did attach copies of the sentencing entries from his cases, which did not
include any mention of his appellate rights. He claims that an explanation of his
appellate rights must appear in the journal entries of sentence, and such a
notification was not incorporated into his sentencing entries. He concludes that, as
a result, he is required to be resentenced by respondent so that he may be properly
informed of his appellate rights. Construing this evidence in relator’s favor as we
must, this court will assume that relator was not informed of his appellate rights.
However, relator’s claim that he is entitled to a writ of mandamus
does not immediately follow. Relator must have no adequate remedy in the ordinary
course of law to be entitled to relief in mandamus. State ex rel Kerns v. Simmers,
153 Ohio St.3d 103, 2018-Ohio-256, 101 N.E.3d 430, ¶ 5. Relator claims that he has no adequate remedy because he filed a motion for delayed appeal, and that was
denied. Setting aside the fact that a motion for delayed appeal constitutes a remedy
that was available to relator, his claims that mandamus is available relies on State v.
Hunter, 8th Dist. Cuyahoga No. 92626, 2010-Ohio-657.
In Hunter, after finding that a sentence that was imposed on an
appellant was void, this court went on to find that the appellant was not properly
informed of his appellate rights. Id. at ¶ 18. The Hunter court stated that the trial
court failed to inform Hunter of his appellate rights “under Crim.R. 32, including
the right to counsel. Therefore, the appropriate avenue of relief is for the trial court
to resentence Hunter advising him of these rights, thus reinstating the time within
which he may file a timely notice of appeal on the resentencing.” Id. at ¶ 22.
Hunter actually demonstrates that relator has an adequate remedy at
law. State ex rel. Wright v. Cuyahoga Cty. Court, 8th Dist. Cuyahoga No. 96397,
2011-Ohio-2159, ¶ 3 (rejecting a claim premised on Hunter similar to the one
advanced by relator in the present action).
Further, the Supreme Court of Ohio has recognized that a motion for
resentencing filed with the trial court is a proper means to address the failure of a
judge to advise criminal defendants of their appellate rights after the imposition of
sentence. State ex rel. Hill v. Navarre, Slip Opinion No. 2020-Ohio-4274, ¶ 8.
There, the court upheld the decision of the Sixth District Court of Appeals denying
a writ of mandamus, stating the relator “could have appealed [the judge’s] order [denying a motion for resentencing] and obtained appellate review of whether he
had been properly informed of his appeal rights and of postrelease control * * *.” Id.
These other avenues of relief establish that relator has or had an
adequate remedy at law. Accord Wright at ¶ 3. Whether or not used, an adequate
remedy in the ordinary course of law precludes relief in mandamus. State ex rel.
Phelps v. McClelland, 8th Dist. Cuyahoga No. 108021, 2019-Ohio-2448, ¶ 13, citing
State ex rel. Tran v. McGrath, 78 Ohio St.3d 45, 676 N.E.2d 108 (1997).
Accordingly, respondent’s motion to dismiss is granted because
relator possesses an adequate remedy at law. Relator’s request for writ of
mandamus is dismissed. Costs to relator. The clerk is directed to serve upon the
parties notice of this judgment and its date of entry upon the journal. Civ.R. 58(B).
Writ dismissed.
_____________________________________ FRANK D. CELEBREZZE, JR., JUDGE
ANITA LASTER MAYS, P.J., and RAYMOND C. HEADEN, J., CONCUR