[Cite as State ex rel. McCuller v. Calabrese, 2011-Ohio-3992.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 96764
STATE OF OHIO EX REL. CHARLES D. MCCULLER RELATOR vs.
HONORABLE DEENA R. CALABRESE RESPONDENT
JUDGMENT: WRITS DENIED
Writs of Mandamus and Prohibition Motion No. 444843 Order No. 446548
RELEASE DATE: August 5, 2011 2
FOR RELATOR:
Charles McCuller, pro se Inmate #482-821 Allen Correctional Instiute P.O. Box 4501 Lima, Ohio 45802
ATTORNEYS FOR RESPONDENT:
William D. Mason Cuyahoga County Prosecutor
By: James E. Moss Assistant County Prosecutor Justice Center 1200 Ontario Street Cleveland, Ohio 44113
KENNETH A. ROCCO, P.J.:
{¶ 1} On May 6, 2011, the relator, Charles McCuller, commenced this
mandamus and prohibition action against the respondent, Judge Deena Calabrese, to
prevent the continued use and correct the results of unauthorized jurisdiction in the
underlying cases, State of Ohio v. Charles McCuller, Cuyahoga Common Pleas Court
Case Nos. CR-49139 and 52011. McCuller maintains that in the underlying cases, the
juvenile court did not bind him over to the common pleas court for further prosecution,
and thus, those cases are void ab initio. On May 26, 2011, the respondent, through the 3
Cuyahoga County Prosecutor, moved for summary judgment; attached as exhibits to this
motion are copies of the docket from the underlying cases showing that the juvenile court
did bind him over in the underlying cases. McCuller filed a brief in opposition on July
25, 2011. For the following reasons, this court grants the respondent’s motion for
summary judgment and denies the complaint for writs of mandamus and prohibition.
{¶ 2} Charles McCuller was born on April 2, 1962; thus, he would turn 18 in
April 1980. In June 1979, McCuller faced multiple charges of juvenile delinquency.
In Cuyahoga County Juvenile Court Case No. 7906998 McCuller was charged with (1)
breaking and entering/trespass and (2) possession of criminal tools. This case later
became Cuyahoga County Court of Common Pleas Case No. CR-49139. In Cuyahoga
County Juvenile Court Case No. 7909646 McCuller was accused of kidnapping and rape.
This case became Cuyahoga County Common Pleas Court Case No. 52011.
Similarly, other juvenile court cases became Cuyahoga County Court of Common Pleas
Case Nos. CR-48919 and CR-48254.1
{¶ 3} McCuller attaches the front pages of the dockets from the four criminal
court of common pleas cases. The front pages for Case Nos. CR-48254 and CR-48919
include the notation “INDICTED BINDOVER.” The front pages for Case Nos.
CR-49139 and CR-52011 include the notation “INDICTED ORIGINAL.” From these
1 From the materials presented by the parties, this court cannot determine with certainty which of McCuller’s other juvenile cases align with the common pleas court cases. Fortunately, such information is not necessary to the determination of this writ action. 4
notations McCuller infers that the juvenile court did not make the necessary bindover
findings pursuant to then R.C. 2151.262 and Juv.R. 30 for those two cases. McCuller
continues that without those necessary findings, the common pleas court would be
without jurisdiction to hear the cases, and the writs of mandamus and prohibition would
lie to prevent any further actions on those cases and to correct the results of the
unauthorized exercise of jurisdiction.
{¶ 4} The respondent judge moved for summary judgment. Attached to this
motion are copies, certified by the juvenile court’s deputy clerk, of the relevant docket
entries for the two subject cases. These docket entries show that the juvenile court made
the necessary findings pursuant to the bindover statute and ruled that McCuller was 17
years-old, that there was probable cause to believe that he had committed the charged
offenses that would be felonies if committed by an adult, that he was not amenable to
rehabilitation, and that the safety of the community required that he be placed under legal
restraint including, if necessary, for a period extending beyond his majority. Finally, in
both cases the juvenile court ruled that McCuller be bound over for further proceedings.
{¶ 5} In Harless v. Willis Day Warehouse Company, Inc. (1978), 54 Ohio St.2d
64, 66, 375 N.E.2d 46, the Supreme Court of Ohio stated the appropriate standard for
granting summary judgment: “Appositeness of rendering a summary judgment hinges
upon the tripartite demonstration: (1) that there is no genuine issue as to any material fact;
2 The bindover statute is now R.C. 2152.12. 5
(2) that the moving party is entitled to judgment as a matter of law, and (3) that
reasonable minds can come to but one conclusion, and that conclusion is adverse to the
party against whom the motion for summary judgment is made, who is entitled to have
the evidence construed most strongly in his favor.” Furthermore, when a motion for
summary judgment is made, the nonmoving party may not rest on the mere allegations of
his pleading, but his response, by affidavit or as otherwise provided in Civ.R. 56, must set
forth specific facts establishing the existence of a genuine triable issue. State ex rel.
Flagner v. Arko, 83 Ohio St.3d 176, 177, 1998-Ohio-127, 699 N.E.2d 62.
{¶ 6} In the present case the judge’s exhibits establish that the requisites of the
statute and the rule were fulfilled and that McCuller was bound over. McCuller’s claim
is factually unfounded. Significantly, McCuller’s Loc.App.R. 45 supporting affidavit in
substance stated only the following: “I am seeking an original action in Mandamus and
Prohibition to prevent any future unauthorized exercise of jurisdiction and to correct the
results of prior jurisdictional unauthorized actions.” He does not swear that for the two
subject cases there were no bindover hearings and no findings of probable cause. Thus,
his writ action fails because it is factually unfounded.
{¶ 7} Moreover, the principles of mandamus and prohibition are well established.
For mandamus (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, 6
515 N.E.2d 914. Furthermore, mandamus is not a substitute for appeal. State ex rel.
Keenan v. Calabrese (1994), 69 Ohio St.3d 176, 631 N.E.2d 119; State ex rel. Daggett v.
Gessaman (1973), 34 Ohio St.2d 55, 295 N.E.2d 659; and State ex rel. Pressley v.
Industrial Commission of Ohio (1967), 11 Ohio St.2d 141, 228 N.E.2d 631, paragraph
three of the syllabus. 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,
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[Cite as State ex rel. McCuller v. Calabrese, 2011-Ohio-3992.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 96764
STATE OF OHIO EX REL. CHARLES D. MCCULLER RELATOR vs.
HONORABLE DEENA R. CALABRESE RESPONDENT
JUDGMENT: WRITS DENIED
Writs of Mandamus and Prohibition Motion No. 444843 Order No. 446548
RELEASE DATE: August 5, 2011 2
FOR RELATOR:
Charles McCuller, pro se Inmate #482-821 Allen Correctional Instiute P.O. Box 4501 Lima, Ohio 45802
ATTORNEYS FOR RESPONDENT:
William D. Mason Cuyahoga County Prosecutor
By: James E. Moss Assistant County Prosecutor Justice Center 1200 Ontario Street Cleveland, Ohio 44113
KENNETH A. ROCCO, P.J.:
{¶ 1} On May 6, 2011, the relator, Charles McCuller, commenced this
mandamus and prohibition action against the respondent, Judge Deena Calabrese, to
prevent the continued use and correct the results of unauthorized jurisdiction in the
underlying cases, State of Ohio v. Charles McCuller, Cuyahoga Common Pleas Court
Case Nos. CR-49139 and 52011. McCuller maintains that in the underlying cases, the
juvenile court did not bind him over to the common pleas court for further prosecution,
and thus, those cases are void ab initio. On May 26, 2011, the respondent, through the 3
Cuyahoga County Prosecutor, moved for summary judgment; attached as exhibits to this
motion are copies of the docket from the underlying cases showing that the juvenile court
did bind him over in the underlying cases. McCuller filed a brief in opposition on July
25, 2011. For the following reasons, this court grants the respondent’s motion for
summary judgment and denies the complaint for writs of mandamus and prohibition.
{¶ 2} Charles McCuller was born on April 2, 1962; thus, he would turn 18 in
April 1980. In June 1979, McCuller faced multiple charges of juvenile delinquency.
In Cuyahoga County Juvenile Court Case No. 7906998 McCuller was charged with (1)
breaking and entering/trespass and (2) possession of criminal tools. This case later
became Cuyahoga County Court of Common Pleas Case No. CR-49139. In Cuyahoga
County Juvenile Court Case No. 7909646 McCuller was accused of kidnapping and rape.
This case became Cuyahoga County Common Pleas Court Case No. 52011.
Similarly, other juvenile court cases became Cuyahoga County Court of Common Pleas
Case Nos. CR-48919 and CR-48254.1
{¶ 3} McCuller attaches the front pages of the dockets from the four criminal
court of common pleas cases. The front pages for Case Nos. CR-48254 and CR-48919
include the notation “INDICTED BINDOVER.” The front pages for Case Nos.
CR-49139 and CR-52011 include the notation “INDICTED ORIGINAL.” From these
1 From the materials presented by the parties, this court cannot determine with certainty which of McCuller’s other juvenile cases align with the common pleas court cases. Fortunately, such information is not necessary to the determination of this writ action. 4
notations McCuller infers that the juvenile court did not make the necessary bindover
findings pursuant to then R.C. 2151.262 and Juv.R. 30 for those two cases. McCuller
continues that without those necessary findings, the common pleas court would be
without jurisdiction to hear the cases, and the writs of mandamus and prohibition would
lie to prevent any further actions on those cases and to correct the results of the
unauthorized exercise of jurisdiction.
{¶ 4} The respondent judge moved for summary judgment. Attached to this
motion are copies, certified by the juvenile court’s deputy clerk, of the relevant docket
entries for the two subject cases. These docket entries show that the juvenile court made
the necessary findings pursuant to the bindover statute and ruled that McCuller was 17
years-old, that there was probable cause to believe that he had committed the charged
offenses that would be felonies if committed by an adult, that he was not amenable to
rehabilitation, and that the safety of the community required that he be placed under legal
restraint including, if necessary, for a period extending beyond his majority. Finally, in
both cases the juvenile court ruled that McCuller be bound over for further proceedings.
{¶ 5} In Harless v. Willis Day Warehouse Company, Inc. (1978), 54 Ohio St.2d
64, 66, 375 N.E.2d 46, the Supreme Court of Ohio stated the appropriate standard for
granting summary judgment: “Appositeness of rendering a summary judgment hinges
upon the tripartite demonstration: (1) that there is no genuine issue as to any material fact;
2 The bindover statute is now R.C. 2152.12. 5
(2) that the moving party is entitled to judgment as a matter of law, and (3) that
reasonable minds can come to but one conclusion, and that conclusion is adverse to the
party against whom the motion for summary judgment is made, who is entitled to have
the evidence construed most strongly in his favor.” Furthermore, when a motion for
summary judgment is made, the nonmoving party may not rest on the mere allegations of
his pleading, but his response, by affidavit or as otherwise provided in Civ.R. 56, must set
forth specific facts establishing the existence of a genuine triable issue. State ex rel.
Flagner v. Arko, 83 Ohio St.3d 176, 177, 1998-Ohio-127, 699 N.E.2d 62.
{¶ 6} In the present case the judge’s exhibits establish that the requisites of the
statute and the rule were fulfilled and that McCuller was bound over. McCuller’s claim
is factually unfounded. Significantly, McCuller’s Loc.App.R. 45 supporting affidavit in
substance stated only the following: “I am seeking an original action in Mandamus and
Prohibition to prevent any future unauthorized exercise of jurisdiction and to correct the
results of prior jurisdictional unauthorized actions.” He does not swear that for the two
subject cases there were no bindover hearings and no findings of probable cause. Thus,
his writ action fails because it is factually unfounded.
{¶ 7} Moreover, the principles of mandamus and prohibition are well established.
For mandamus (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, 6
515 N.E.2d 914. Furthermore, mandamus is not a substitute for appeal. State ex rel.
Keenan v. Calabrese (1994), 69 Ohio St.3d 176, 631 N.E.2d 119; State ex rel. Daggett v.
Gessaman (1973), 34 Ohio St.2d 55, 295 N.E.2d 659; and State ex rel. Pressley v.
Industrial Commission of Ohio (1967), 11 Ohio St.2d 141, 228 N.E.2d 631, paragraph
three of the syllabus. 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,
1997-Ohio-245, 676 N.E.2d 108 and State ex rel. Boardwalk Shopping Center, Inc. v.
Court of Appeals for Cuyahoga County (1990), 56 Ohio St.3d 33, 564 N.E.2d 86.
Similarly, for prohibition (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 (1989), 43 Ohio St.3d 160, 540
N.E.2d 239. 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 (1981), 65
Ohio St.2d 68, 417 N.E.2d 1382, certiorari denied (1981), 454 U.S. 854, 102 S.Ct. 300,
70 L.Ed.2d 147; Cf. State ex rel. Sibarco Corp. v. City of Berea (1966), 7 Ohio St.2d 85,
218 N.E.2d 428, certiorari denied (1967), 386 U.S. 957, 87 S.Ct. 1022, 18 L.Ed.2d 104.
{¶ 8} Generally, any error complained of in a bindover order must be raised on
appeal from the judgment of the common pleas court. Thus, McCuller’s writ action is
also barred because he has or had an adequate remedy at law. State ex rel. Torres v.
Simmons (1981), 68 Ohio St.3d 118, 428 N.E.2d 862; State ex rel. Wehrung v. Kinklacker 7
(Oct. 13, 2000), Hamilton App. No. C-000449; and State ex rel. Campbell v. Carroll,
Cuyahoga App. No. 81615, 2003-Ohio-181.
{¶ 9} The court further notes that the charges in Case No. CR-49139 were nolled.
It is difficult to see how any meaningful relief could be granted in that case. A writ will
not issue to compel a vain act. State ex rel. Cotton v. Ghee, 84 Ohio St.3d 54,
1998-Ohio-679, 701 N.E.2d 989; and State ex rel. Thomas v. Ghee, 81 Ohio St.3d 191,
1998-Ohio-461, 690 N.E.2d 6.
{¶ 10} Accordingly, this court grants the respondent’s motion for summary
judgment and denies the complaint for writs of mandamus and prohibition. Costs assessed
against the relator. This court directs the Clerk of the Eighth District Court of Appeals
to serve upon the parties notice of this judgment and its date of entry upon the journal.
Civ.R. 58(B).
Writs denied.
__________________________________________ KENNETH A. ROCCO, PRESIDING JUDGE
KATHLEEN ANN KEOUGH and EILEEN A. GALLAGHER, J., CONCUR