[Cite as State ex rel. Untied v. Ellwood, 2011-Ohio-2836.] COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, EX REL., : JUDGES: DAVID UNTIED : Hon. W. Scott Gwin, P.J. : Hon. Sheila G. Farmer, J. Relator/Petitioner : Hon. Patricia A. Delaney, J. : -vs- : Case No. 11 CA 07 : GUERNSEY COUNTY COURT : OF COMMON PLEAS : JUDGE DAVID A. ELLWOOD : OPINION : and : : GUERNSEY COUNTY CLERK OF : COURT, TERESA DANKOVIC : : Respondents :
CHARACTER OF PROCEEDING: Appeal from the Guernsey County Court of Common Pleas, Case No. 09-CR-83
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: June 9, 2011
APPEARANCES:
For Relator/Petitioner For Respondent, Teresa Dankovic
DAVID UNTIED, PRO SE DANIEL G. PADDEN 9015 Raiders Road Guersney County Prosecutor Frazeysburg, OH 43822 139 West Eighth Street P. O. Box 640 Cambridge, OH 43725
David A. Ellwood, Judge, Pro Se Guernsey County Common Pleas Court 801 E. Wheeling Avenue Cambridge, OH 43725 Guernsey County, Case No. 11 CA 07 2
Farmer, J.
{¶1 } On February 16, 2010, Relator was convicted of passing bad checks and
sentenced to a term of community control for a period of one year. On February 16,
2011, the trial court prepared a judgment entry setting a community control violation
hearing for March 28, 2011. Relator argues he was placed on community control at
10:30 a.m. on February 16, 2010, therefore, his community control ended at 10:30 a.m.
on February 16, 2011. It is Relator’s assertion that the trial court lost subject matter
jurisdiction over the community control violation after 10:30 a.m. on February 16, 2011.
The Complaint in this case names two Respondents: Judge Ellwood and the Clerk of
Courts. Relator seeks a writ of mandamus ordering the Clerk of Courts to time stamp
all documents presented to it in this case.
{¶2 } Relator filed an Affidavit of Disqualification with the Supreme Court which
Relator argues prevents Respondent Ellwood from holding the community control
violation hearing on March 28, 2011. Subsequent to the filing of this Complaint,
Respondent Ellwood stayed the March 28, 2011 hearing until the Supreme Court issued
a ruling on the Affidavit of Disqualification. Relator seeks a writ of prohibition to prevent
Respondent Ellwood from holding a community control violation hearing.
{¶3 } For a writ of mandamus to issue, the relator must have a clear legal right
to the relief prayed for, the respondents must be under a clear legal duty to perform the
requested act, and relator must have no plain and adequate remedy in the ordinary
course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50,
451 N.E.2d 225. Guernsey County, Case No. 11 CA 07 3
{¶4 } In order for a writ of prohibition to issue, petitioner must prove that: (1) the
lower court is about to exercise judicial authority; (2) the exercise of authority is not
authorized by law; and, (3) the petitioner has no other adequate remedy in the ordinary
course of law if a writ of prohibition is denied. State ex rel. Keenan v. Calabrese (1994),
69 Ohio St.3d 176, 178, 631 N .E.2d 119. A writ of prohibition, regarding the
unauthorized exercise of judicial power, will only be granted where the judicial officer's
lack of subject-matter jurisdiction is patent and unambiguous. Ohio Dept. of Adm. Serv.,
Office of Collective Bargaining v. State Emp. Relations Bd. (1990), 54 Ohio St.3d 48,
562 N.E.2d 125. State ex rel. Daniels v. Harris, 2008 WL 5197131, 1 (Ohio App. 5
Dist.). Prohibition will not issue where there is an adequate remedy at law. Id.
{¶5 } Relator advances two reasons why the community control violations
hearing should not be held. First, he argues the trial court lacks jurisdiction because
Relator filed an Affidavit of Disqualification with the Supreme Court. Second, Relator
argues the trial court lost jurisdiction once Relator’s community control ended.
{¶6 } With regard to the Affidavit of Disqualification, the trial court stayed the
hearing until the Supreme Court issued a ruling on the Affidavit. For this reason, the
requested writ is moot because the relief sought was already granted by the trial court’s
stay of proceedings. See State ex rel. Denton v. Bedinghaus (2003), 98 Ohio St.3d
298, 304, 784 N.E.2d 99, 105. Furthermore, the Supreme Court has now denied the
Affidavit of Disqualification which also makes this portion of the Complaint moot.
{¶7 } Next, Relator argues a writ should issue because the trial court lacks
jurisdiction to hold a community control violation hearing because Relator’s community
control expired prior to the filing of the entry setting the matter for a hearing. Within this Guernsey County, Case No. 11 CA 07 4
argument, Relator offers two reasons in support of his argument. First, he argues his
community control expired at 10:30 a.m. on February 16, 2011. He maintains that the
Clerk was required to place a stamp on the entry bearing the time it was filed. Second,
he argues the entry was not filed by the Clerk on February 16, 2011. He suggests it
was not fully filed until it was placed on the Clerk’s online docket which was on February
22, 2011.
{¶8 } With regard to the notion that Relator’s community control would end at a
particular time during the day, we have previously held that there are no partial days. It
is the common-law rule that there is no fraction of a day. State v. Clark (1993), 84 Ohio
App.3d 789, 791, 618 N.E.2d 257, 258. For this reason, this portion of Relator’s
argument is overruled.
{¶9 } We will now examine whether there is a duty on the part of the Clerk of
Courts duty to time stamp documents. Even assuming arguendo the Clerk was
required to place a time stamp on the document, the Supreme Court has held, “[W]hen
a document is filed, the clerk's failure to file-stamp it does not create a jurisdictional
defect. State v. Otte (2002), 94 Ohio St.3d 167, 169, 761 N.E.2d 34, citing State ex rel.
Larkins v. Baker (1995), 73 Ohio St.3d 658, 653 N.E.2d 701.” Zanesville v.
Rouse (2010), 126 Ohio St.3d 1, 3, 929 N.E.2d 1044, 1046. For this reason, we find
any alleged failure of the clerk to put a time stamp on the document does not deprive
the trial court of jurisdiction over the community control violation.
{¶10 } Further, we find the entry in question bears a file stamp with the
endorsement of the Clerk of Courts dated February 16, 2011. We find this file stamp to
be evidence of the filing of this entry on this date. Again, the Supreme Court held, Guernsey County, Case No. 11 CA 07 5
“Certification by a clerk on a document attests that it was indeed filed.” Zanesville v.
Rouse (2010), 126 Ohio St.3d 1, 3, 929 N.E.2d 1044, 1046.
{¶11 } The Supreme Court has recently considered a case very similar to the
case at bar wherein the Relator argued the trial court lacked jurisdiction over a
community control violation because the hearing on the violation was to be held after
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[Cite as State ex rel. Untied v. Ellwood, 2011-Ohio-2836.] COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, EX REL., : JUDGES: DAVID UNTIED : Hon. W. Scott Gwin, P.J. : Hon. Sheila G. Farmer, J. Relator/Petitioner : Hon. Patricia A. Delaney, J. : -vs- : Case No. 11 CA 07 : GUERNSEY COUNTY COURT : OF COMMON PLEAS : JUDGE DAVID A. ELLWOOD : OPINION : and : : GUERNSEY COUNTY CLERK OF : COURT, TERESA DANKOVIC : : Respondents :
CHARACTER OF PROCEEDING: Appeal from the Guernsey County Court of Common Pleas, Case No. 09-CR-83
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: June 9, 2011
APPEARANCES:
For Relator/Petitioner For Respondent, Teresa Dankovic
DAVID UNTIED, PRO SE DANIEL G. PADDEN 9015 Raiders Road Guersney County Prosecutor Frazeysburg, OH 43822 139 West Eighth Street P. O. Box 640 Cambridge, OH 43725
David A. Ellwood, Judge, Pro Se Guernsey County Common Pleas Court 801 E. Wheeling Avenue Cambridge, OH 43725 Guernsey County, Case No. 11 CA 07 2
Farmer, J.
{¶1 } On February 16, 2010, Relator was convicted of passing bad checks and
sentenced to a term of community control for a period of one year. On February 16,
2011, the trial court prepared a judgment entry setting a community control violation
hearing for March 28, 2011. Relator argues he was placed on community control at
10:30 a.m. on February 16, 2010, therefore, his community control ended at 10:30 a.m.
on February 16, 2011. It is Relator’s assertion that the trial court lost subject matter
jurisdiction over the community control violation after 10:30 a.m. on February 16, 2011.
The Complaint in this case names two Respondents: Judge Ellwood and the Clerk of
Courts. Relator seeks a writ of mandamus ordering the Clerk of Courts to time stamp
all documents presented to it in this case.
{¶2 } Relator filed an Affidavit of Disqualification with the Supreme Court which
Relator argues prevents Respondent Ellwood from holding the community control
violation hearing on March 28, 2011. Subsequent to the filing of this Complaint,
Respondent Ellwood stayed the March 28, 2011 hearing until the Supreme Court issued
a ruling on the Affidavit of Disqualification. Relator seeks a writ of prohibition to prevent
Respondent Ellwood from holding a community control violation hearing.
{¶3 } For a writ of mandamus to issue, the relator must have a clear legal right
to the relief prayed for, the respondents must be under a clear legal duty to perform the
requested act, and relator must have no plain and adequate remedy in the ordinary
course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50,
451 N.E.2d 225. Guernsey County, Case No. 11 CA 07 3
{¶4 } In order for a writ of prohibition to issue, petitioner must prove that: (1) the
lower court is about to exercise judicial authority; (2) the exercise of authority is not
authorized by law; and, (3) the petitioner has no other adequate remedy in the ordinary
course of law if a writ of prohibition is denied. State ex rel. Keenan v. Calabrese (1994),
69 Ohio St.3d 176, 178, 631 N .E.2d 119. A writ of prohibition, regarding the
unauthorized exercise of judicial power, will only be granted where the judicial officer's
lack of subject-matter jurisdiction is patent and unambiguous. Ohio Dept. of Adm. Serv.,
Office of Collective Bargaining v. State Emp. Relations Bd. (1990), 54 Ohio St.3d 48,
562 N.E.2d 125. State ex rel. Daniels v. Harris, 2008 WL 5197131, 1 (Ohio App. 5
Dist.). Prohibition will not issue where there is an adequate remedy at law. Id.
{¶5 } Relator advances two reasons why the community control violations
hearing should not be held. First, he argues the trial court lacks jurisdiction because
Relator filed an Affidavit of Disqualification with the Supreme Court. Second, Relator
argues the trial court lost jurisdiction once Relator’s community control ended.
{¶6 } With regard to the Affidavit of Disqualification, the trial court stayed the
hearing until the Supreme Court issued a ruling on the Affidavit. For this reason, the
requested writ is moot because the relief sought was already granted by the trial court’s
stay of proceedings. See State ex rel. Denton v. Bedinghaus (2003), 98 Ohio St.3d
298, 304, 784 N.E.2d 99, 105. Furthermore, the Supreme Court has now denied the
Affidavit of Disqualification which also makes this portion of the Complaint moot.
{¶7 } Next, Relator argues a writ should issue because the trial court lacks
jurisdiction to hold a community control violation hearing because Relator’s community
control expired prior to the filing of the entry setting the matter for a hearing. Within this Guernsey County, Case No. 11 CA 07 4
argument, Relator offers two reasons in support of his argument. First, he argues his
community control expired at 10:30 a.m. on February 16, 2011. He maintains that the
Clerk was required to place a stamp on the entry bearing the time it was filed. Second,
he argues the entry was not filed by the Clerk on February 16, 2011. He suggests it
was not fully filed until it was placed on the Clerk’s online docket which was on February
22, 2011.
{¶8 } With regard to the notion that Relator’s community control would end at a
particular time during the day, we have previously held that there are no partial days. It
is the common-law rule that there is no fraction of a day. State v. Clark (1993), 84 Ohio
App.3d 789, 791, 618 N.E.2d 257, 258. For this reason, this portion of Relator’s
argument is overruled.
{¶9 } We will now examine whether there is a duty on the part of the Clerk of
Courts duty to time stamp documents. Even assuming arguendo the Clerk was
required to place a time stamp on the document, the Supreme Court has held, “[W]hen
a document is filed, the clerk's failure to file-stamp it does not create a jurisdictional
defect. State v. Otte (2002), 94 Ohio St.3d 167, 169, 761 N.E.2d 34, citing State ex rel.
Larkins v. Baker (1995), 73 Ohio St.3d 658, 653 N.E.2d 701.” Zanesville v.
Rouse (2010), 126 Ohio St.3d 1, 3, 929 N.E.2d 1044, 1046. For this reason, we find
any alleged failure of the clerk to put a time stamp on the document does not deprive
the trial court of jurisdiction over the community control violation.
{¶10 } Further, we find the entry in question bears a file stamp with the
endorsement of the Clerk of Courts dated February 16, 2011. We find this file stamp to
be evidence of the filing of this entry on this date. Again, the Supreme Court held, Guernsey County, Case No. 11 CA 07 5
“Certification by a clerk on a document attests that it was indeed filed.” Zanesville v.
Rouse (2010), 126 Ohio St.3d 1, 3, 929 N.E.2d 1044, 1046.
{¶11 } The Supreme Court has recently considered a case very similar to the
case at bar wherein the Relator argued the trial court lacked jurisdiction over a
community control violation because the hearing on the violation was to be held after
the community control term ended. In its holding, the Supreme Court stated, “[T]he
court was authorized to conduct proceedings on the alleged community-control
violations even though they were conducted after the expiration of the term of
community control, provided that the notice of violations was properly given and the
revocation proceedings were commenced before the expiration.” State ex rel. Hemsley
v. Unruh (2011), 943 N.E.2d 1014, 1017. The community control proceedings in the
underlying criminal case were commenced prior to the expiration of the term of
community control, therefore, the trial court does not patently and unambiguously lack
jurisdiction.
{¶12 } Finally, the Supreme Court in Helmsley found prohibition is precluded
when raising a jurisdictional challenge to a community control violation because an
adequate remedy at law exists, “[The Petitioner] has an adequate remedy by way of
appeal and motion for stay of the court's judgment pending appeal to raise his
jurisdictional claim.” State ex rel. Hemsley v. Unruh (2011), 943 N.E.2d 1014, 1018. Guernsey County, Case No. 11 CA 07 6
{¶13 } For these reasons, Respondent’s motion to dismiss is granted.
By Farmer, J.
Gwin, J. and
Delaney, J. concur.
_s/ Sheila G. Farmer__________________
_s/ W. Scott Gwin____________________
_s/ Patricia A. Delaney________________
JUDGES
SGF/as Guernsey County, Case No. 11 CA 07 7
IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, EX REL., : DAVID UNITIED : : Relator/Petitioner : : -vs- : JUDGMENT ENTRY : GUERNSEY COUNTY COURT OF : COMMON PLEAS, JUDGE : DAVID A. ELLWOOD : : and : Case No. 11 CA 07 : GUERNSEY COUNTY CLERK OF : COURT, TERESA DANKOVIC :
Respondents
For the reasons stated in our accompanying Memorandum-Opinion, the
Complaint for Writ of Prohibition and/or Writ of Mandamus is dismissed.
Costs to Relator.
s/ Sheila G. Farmer__________________