State ex rel. Swift v. Geauga Cty. Court of Common Pleas

2018 Ohio 3962

• Court: Ohio Court of Appeals
• Decided: September 28, 2018
• Docket: 2017-G-0144
• Status: Published

Opinion

[Cite as State ex rel. Swift v. Geauga Cty. Court of Common Pleas, 2018-Ohio-3962.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

GEAUGA COUNTY, OHIO

STATE OF OHIO ex rel. : PER CURIAM OPINION THOMAS A. SWIFT,

Relator, : CASE NO. 2017-G-0144 - vs - :

GEAUGA COUNTY COURT OF : COMMON PLEAS, et al.,

Respondents. :

Original Action in Mandamus and Procedendo.

Judgment: Dismissed.

James R. Flaiz, Geauga County Prosecutor, and Nicholas A. Burling, Assistant Prosecuting Attorney, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For Respondents).

Thomas A. Swift, pro se, PID: A283-573, North Central Correctional Complex, 670 Marion- Williamsport Road, P.O. Box 1812, Marion, OH 43302 (Relator).

PER CURIAM

{¶1} Relator, State of Ohio ex rel. Thomas A. Swift, seeks a writ of mandamus

and a writ of procedendo to compel the Geauga County Court of Common Pleas to enter

a single judgment of conviction in accordance with Crim.R. 32(C) and State v. Baker, 119

Ohio St.3d 197, 2008-Ohio-3330. Respondents, Geauga County Court of Common Pleas,

Judge H.F. Inderlied, Jr. (Retired), and Judge Carolyn J. Paschke, move to dismiss Swift’s petition pursuant to Cir.R 12(B)(6), for failure to state a claim upon which relief can be

granted. We grant the motion to dismiss.

{¶2} In December 1991, Swift entered a plea of guilty to one count of rape in

Geauga County Court of Common Pleas case number 91C190. Upon accepting his plea,

the court sentenced Swift to a term of eight to 25 years in a state penitentiary.

{¶3} Immediately thereafter, Swift appealed his conviction to this court. On

February 16, 1993, we reversed and remanded Swift’s conviction because the record

failed to show that Swift knowingly entered a plea of guilty. Upon remand, the state

submitted its case to the Geauga County Grand Jury, which returned an indictment

containing 500 counts of rape.

{¶4} Thus, Swift faced 500 counts of rape in case number 93C121. Swift

unsuccessfully moved to dismiss case number 93C121. Thereafter, the state moved to

join Geauga County Court of Common Pleas case numbers 91C190 and 93C121 for trial,

and the court granted the motion to join the cases for trial.

{¶5} On December 13, 1993, Swift entered a plea of guilty to one charge of rape

in case number 91C190, and 500 counts of rape in case number 93C121. The trial court

accepted Swift’s guilty plea as to all 501 charges. On December 17,1993, the court filed

two separate judgments of conviction.

{¶6} In 1995, Swift appealed his conviction to this court. Swift argued that the

trial court erred when it denied his motion to dismiss the 500 count indictment. Swift also

argued that he did not voluntarily enter a guilty plea. On November 9, 1995, we affirmed

the trial court’s judgment. Our opinion began by recognizing that “[t]his appeal has been

2 taken from a final judgment of the Geauga County Court of Common Pleas.” See State

v. Swift, 11th Dist. Geauga No. 94-G-1838, 1995 WL 803806, *1 (1995).

{¶7} In 2017, Swift filed a motion to revise/correct the judgment entries to comply

with Crim.R. 32(C) and State v. Baker. Swift argued that the court failed to provide him

with a single judgment entry reflecting two combined cases and sentences under the

“Baker one document rule.” On July 19, 2017, Judge Paschke of the Geauga County

Court of Common Pleas denied Swift’s motion to revise/correct the judgment entries after

applying the “Baker one document rule.”

{¶8} On December 4, 2017, Swift filed a complaint for writs of mandamus and

procedendo to this court. Swift argues that the trial court failed to properly set forth his

sentencing in one judgment entry, as required by Crim.R. 32(C). He argues that the writs

are necessary because the court denied his motion to revise/correct the judgment entries.

{¶9} Crim.R. 32(C) provides:

{¶10} “A judgment of conviction shall set forth the fact of conviction and the

sentence. Multiple judgments of conviction may be addressed in one judgment entry. . .”

{¶11} The Supreme Court has clarified that only a single document constitutes a

final appealable order. See Baker, supra at ¶1. The purpose of Crim.R. 32(C) is to “ensure

that a defendant is on notice concerning when a final judgment has been entered and the

time for filing an appeal has begun to run.” State v. Lester, 130 Ohio St.3d., 2011-Ohio-

303, ¶10.

{¶12} A writ of “[m]andamus is an extraordinary remedy ‘to be issued with great

caution and discretion and only when the way is clear.’ * * * A relator seeking a writ of

mandamus must establish (1) a clear legal right to the requested relief, (2) a clear legal

3 duty on the part of the respondent official or governmental unit to provide it, and (3) the

lack of an adequate remedy in the ordinary course of the law. * * *” (Citations omitted).

State ex rel. Manley v. Walsh, 142 Ohio St.3d 384, 2014-Ohio-4563, ¶18. In considering

the third element of a mandamus claim, we have held that “a direct appeal from a criminal

conviction constitutes an adequate legal remedy which forecloses the issuance of the

writ.” Sellers v. State, 11th Dist. Trumbull No. 2007-T-0090, 2007-Ohio-4484, ¶7.

{¶13} Similarly, “an appeal is an adequate remedy to prevent a writ of

procedendo. See State ex rel. New Concept Hous., Inc. v. Metz, 123 Ohio St.3d 457,

2009-Ohio-5862, ¶2, quoting State ex rel. Bd. of State Teachers Retirement Sys. of Ohio

v. Davis, 113 Ohio St.3d 410, 2007-Ohio-2205, ¶43 (holding that “‘(p)rocedendo is not

appropriate when the party seeking the writ has an adequate remedy in the ordinary

course of law, e.g., appeal.’”)” State ex. rel. Huntington Natl. Bank v. Kontos, 11th Dist.

Trumbull No. 2013-T-0089, 2014-Ohio-1374, ¶22.

{¶14} Here, Swift seeks writs of mandamus and procedendo to compel the court

to comply with the Baker one document rule. However, Swift filed a Motion to

Revise/Correct Judgment Entry of Conviction and Sentence, which Judge Paschke

denied on July 19, 2017. In her decision, Judge Paschke noted that there were two

judgments of conviction, one for case number 91C190, and one for case number 93C121:

{¶15} “In case number 91C190, Mr. Swift: (1) plead[ed] guilty and (2) was

sentenced to incarceration for eight to twenty-five years. The Judgment of Conviction

was: (3) signed by Judge Inderlied and 4) journalized by the clerk. See Judgment of

Conviction.”

4 {¶16} “In case number 93C121, Mr. Swift (1) plead[ed] guilty and (2) was

sentenced to incarceration on (a) count one for eight to twenty-five years consecutive with

the sentence in Geauga County Court of Common Pleas case number 91C190; (b) count

two for eight to twenty-five years consecutive to the sentence in 91C190 and consecutive

to the sentence in count one of 93C121; and (c) counts three to five hundred for eight to

twenty-five years concurrent with the second count in 93C121. The Judgment of

Conviction was: (3) signed by Judge Inderlied and (4) journalized by the clerk. See

Judgment of Conviction.”

{¶17} Following Judge Paschke’s decision, Swift could have filed a direct appeal.

Because Swift had the opportunity to appeal, he cannot establish that he is entitled to a

writ of mandamus or a writ of procedendo.

{¶18} Moreover, Crim.R. 32(C)’s purpose is to put defendants on notice of their

opportunity to appeal. After the judgment against him, Swift appealed to this court in

1995, fulfilling Crim.R. 32(C)’s purpose. On that appeal, Swift failed to raise the issue of

improper judgment. Further, our 1995 decision recognized that Swift’s appeal came from

the trial court’s final judgment.

{¶19} For the foregoing reasons, respondents’ motion to dismiss is granted.

Swift’s mandamus and procedendo petition is hereby dismissed.

CYNTHIA WESTCOTT RICE, J., TIMOTHY P. CANNON, J., COLLEEN MARY

O’TOOLE, J., concur.