[Cite as State v. Wynn, 2017-Ohio-659.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 105205
STATE OF OHIO
RESPONDENT
vs.
ANTOINNE WYNN RELATOR
JUDGMENT: WRIT DENIED
Writ of Mandamus Motion No. 502939 Order No. 503808
RELEASE DATE: February 17, 2017 FOR RELATOR
Antoinne Wynn, pro se Inmate No. A674993 Madison Correctional Institution P.O Box 740 London, Ohio 43140
ATTORNEYS FOR RESPONDENT
Michael C. O’Malley Cuyahoga County Prosecutor By: James E. Moss Owen M. Patton Assistant County Prosecutors The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 MELODY J. STEWART, P.J.:
{¶1} On November 29, 2016, the relator, Antoinne Wynn, commenced this
mandamus action to compel his court-appointed appellate attorney (1) to add Wynn’s
suggested assignments of error to the appellant’s brief in State v. Wynn, 8th Dist.
Cuyahoga No. 103824 (“the appeal”) and (2) to send him (Wynn) copies of all the
documents and attachments in the appeal and a copy of all the pretrial transcripts in State
v. Wynn, Cuyahoga C.P. No. CR-15-595910-A. Wynn also “desires return of the copy
to [sic] journal entry file to Defendant’s waiver of counsel form filed but not yet endorsed
upon to [sic] by the signature of the presiding Judge on Sept. 14, 2015 * * *.” (Complaint
p. 9-10.) Wynn captioned his mandamus action as “State of Ohio v. Antoinne Wynn.”
For the following reasons, this court sua sponte denies the application for a writ of
mandamus.
{¶2} First, Wynn improperly captioned his mandamus action, using the caption of
his criminal case. R.C. 2731.04 requires that an application for a writ of mandamus
“must be by petition, in the name of the state on the relation of the person applying.”
This failure to properly caption a mandamus action is sufficient grounds for denying the
writ and dismissing the petition. Maloney v. Court of Common Pleas of Allen Cty., 173
Ohio St. 226, 181 N.E.2d 270 (1962). Moreover, the failure to caption the case correctly
creates uncertainty as to the identity of the respondent.1 This court has held that this
1The Cuyahoga County prosecutor, apparently out of an abundance of caution because the state of Ohio may have been the named respondent, filed a motion for summary judgment. This court denies that motion as moot. deficiency alone also warrants dismissal. State ex rel. Calloway v. Court of Common
Pleas of Cuyahoga Cty., 8th Dist. Cuyahoga No. 71699, 1997 Ohio App. LEXIS 79452
(Feb. 27, 1997); Jordan v. Cuyahoga Cty. Court of Common Pleas, 8th Dist. Cuyahoga
No. 96013, 2011-Ohio-1813.
{¶3} The requisites for mandamus are well established: (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, such as
appeal. State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914 (1987).
Mandamus is an extraordinary remedy that is to be exercised with caution and only when
the right is clear. It should not issue in doubtful cases. State ex rel. Taylor v. Glasser,
50 Ohio St.2d 165, 364 N.E.2d 1 (1977); State ex rel. Shafer v. Ohio Turnpike Comm.,
159 Ohio St. 581, 113 N.E.2d 14 (1953); State ex rel. Connole v. Cleveland Bd. of Edn.,
87 Ohio App.3d 43, 621 N.E.2d 850 (8th Dist.1993).
{¶4} Although mandamus should be used with caution, the court has discretion in
issuing it. In State ex rel. Pressley v. Indus. Comm. of Ohio, 11 Ohio St.2d 141, 228
N.E.2d 631 (1967), paragraph seven of the syllabus, the Supreme Court of Ohio ruled that
“in considering the allowance or denial of the writ of mandamus on the merits, [the court]
will exercise sound, legal and judicial discretion based upon all the facts and
circumstances in the individual case and the justice to be done.” The court elaborated
that in exercising that discretion the court should consider
the exigency which calls for the exercise of such discretion, the nature and extent of the wrong or injury which would follow a refusal of the writ, and other facts which have a bearing on the particular case. * * * Among the facts and circumstances which the court will consider are the applicant’s rights, the interests of third persons, the importance or unimportance of the case, the applicant’s conduct, the equity and justice of the relator’s case, public policy and the public’s interest, whether the performance of the act by the respondent would give the relator any effective relief, and whether such act would be impossible, illegal, or useless.
11 Ohio St.2d at 161-162.
{¶5} Mandamus will not lie to enforce a private right against a private person.
Id. at paragraph eight of the syllabus. A client’s seeking to obtain records from his
lawyer concerns a private right against a private person. In State ex rel. Tierney v.
Jamieson, 8th Dist. Cuyahoga No. 80302, 2001-Ohio-4148, this court sua sponte
dismissed a criminal defendant’s mandamus action seeking to compel his attorney to
provide him with copies of the transcript and briefs in Tierney’s appeal. See also State
ex rel. Rodgers v. Riley, 8th Dist. Cuyahoga No. 79977, 2001 Ohio App.LEXIS 3631
(Aug. 9, 2001) — sua sponte dismissal of a criminal defendant’s mandamus action
seeking to compel his attorney to give him various court records, including transcripts of
certain hearings; State ex rel. Jones v. Luskin, 8th Dist. Cuyahoga No. 87185,
2006-Ohio-3686 — mandamus to compel attorney to turn over all filings in underlying
criminal case denied; Booker v. Christman, 8th Dist. Cuyahoga No. 84330,
2004-Ohio-6572, and State ex rel. Grahek v. McCafferty, 8th Dist. Cuyahoga No. 88614,
2006-Ohio-4741 — mandamus actions to compel lawyers to release case files denied.
Accordingly, Wynn’s mandamus claim to compel his appellate attorney to send him the
records is not well founded. {¶6} Similarly, the principle that mandamus will not lie to enforce a private right
against a private person also precludes the use of mandamus to compel the appellate
attorney to include Wynn’s requested assignments of error in the brief.2 Wynn reliance
on Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1974), is
misplaced. Faretta stands for the proposition that an individual has the right of
self-representation, not that a client can insist that an appellate counsel include certain
arguments in a brief. Rather, in Jones v. Barnes, 463 U.S. 745, 751-752, 103 S.Ct.
3308, 77 L.Ed.2d 987 (1983), the United States Supreme Court upheld the appellate
advocate’s prerogative to decide strategy and tactics by selecting what he thinks are the
most promising arguments out of all possible contentions. The Court noted,
“Experienced advocates since time beyond memory have emphasized the importance of
winnowing out weaker arguments on appeal and focusing on one central issue if possible,
or at most on a few key issues.”
{¶7} Finally, the court in its discretion declines to grant a writ of mandamus for
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[Cite as State v. Wynn, 2017-Ohio-659.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 105205
STATE OF OHIO
RESPONDENT
vs.
ANTOINNE WYNN RELATOR
JUDGMENT: WRIT DENIED
Writ of Mandamus Motion No. 502939 Order No. 503808
RELEASE DATE: February 17, 2017 FOR RELATOR
Antoinne Wynn, pro se Inmate No. A674993 Madison Correctional Institution P.O Box 740 London, Ohio 43140
ATTORNEYS FOR RESPONDENT
Michael C. O’Malley Cuyahoga County Prosecutor By: James E. Moss Owen M. Patton Assistant County Prosecutors The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 MELODY J. STEWART, P.J.:
{¶1} On November 29, 2016, the relator, Antoinne Wynn, commenced this
mandamus action to compel his court-appointed appellate attorney (1) to add Wynn’s
suggested assignments of error to the appellant’s brief in State v. Wynn, 8th Dist.
Cuyahoga No. 103824 (“the appeal”) and (2) to send him (Wynn) copies of all the
documents and attachments in the appeal and a copy of all the pretrial transcripts in State
v. Wynn, Cuyahoga C.P. No. CR-15-595910-A. Wynn also “desires return of the copy
to [sic] journal entry file to Defendant’s waiver of counsel form filed but not yet endorsed
upon to [sic] by the signature of the presiding Judge on Sept. 14, 2015 * * *.” (Complaint
p. 9-10.) Wynn captioned his mandamus action as “State of Ohio v. Antoinne Wynn.”
For the following reasons, this court sua sponte denies the application for a writ of
mandamus.
{¶2} First, Wynn improperly captioned his mandamus action, using the caption of
his criminal case. R.C. 2731.04 requires that an application for a writ of mandamus
“must be by petition, in the name of the state on the relation of the person applying.”
This failure to properly caption a mandamus action is sufficient grounds for denying the
writ and dismissing the petition. Maloney v. Court of Common Pleas of Allen Cty., 173
Ohio St. 226, 181 N.E.2d 270 (1962). Moreover, the failure to caption the case correctly
creates uncertainty as to the identity of the respondent.1 This court has held that this
1The Cuyahoga County prosecutor, apparently out of an abundance of caution because the state of Ohio may have been the named respondent, filed a motion for summary judgment. This court denies that motion as moot. deficiency alone also warrants dismissal. State ex rel. Calloway v. Court of Common
Pleas of Cuyahoga Cty., 8th Dist. Cuyahoga No. 71699, 1997 Ohio App. LEXIS 79452
(Feb. 27, 1997); Jordan v. Cuyahoga Cty. Court of Common Pleas, 8th Dist. Cuyahoga
No. 96013, 2011-Ohio-1813.
{¶3} The requisites for mandamus are well established: (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, such as
appeal. State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914 (1987).
Mandamus is an extraordinary remedy that is to be exercised with caution and only when
the right is clear. It should not issue in doubtful cases. State ex rel. Taylor v. Glasser,
50 Ohio St.2d 165, 364 N.E.2d 1 (1977); State ex rel. Shafer v. Ohio Turnpike Comm.,
159 Ohio St. 581, 113 N.E.2d 14 (1953); State ex rel. Connole v. Cleveland Bd. of Edn.,
87 Ohio App.3d 43, 621 N.E.2d 850 (8th Dist.1993).
{¶4} Although mandamus should be used with caution, the court has discretion in
issuing it. In State ex rel. Pressley v. Indus. Comm. of Ohio, 11 Ohio St.2d 141, 228
N.E.2d 631 (1967), paragraph seven of the syllabus, the Supreme Court of Ohio ruled that
“in considering the allowance or denial of the writ of mandamus on the merits, [the court]
will exercise sound, legal and judicial discretion based upon all the facts and
circumstances in the individual case and the justice to be done.” The court elaborated
that in exercising that discretion the court should consider
the exigency which calls for the exercise of such discretion, the nature and extent of the wrong or injury which would follow a refusal of the writ, and other facts which have a bearing on the particular case. * * * Among the facts and circumstances which the court will consider are the applicant’s rights, the interests of third persons, the importance or unimportance of the case, the applicant’s conduct, the equity and justice of the relator’s case, public policy and the public’s interest, whether the performance of the act by the respondent would give the relator any effective relief, and whether such act would be impossible, illegal, or useless.
11 Ohio St.2d at 161-162.
{¶5} Mandamus will not lie to enforce a private right against a private person.
Id. at paragraph eight of the syllabus. A client’s seeking to obtain records from his
lawyer concerns a private right against a private person. In State ex rel. Tierney v.
Jamieson, 8th Dist. Cuyahoga No. 80302, 2001-Ohio-4148, this court sua sponte
dismissed a criminal defendant’s mandamus action seeking to compel his attorney to
provide him with copies of the transcript and briefs in Tierney’s appeal. See also State
ex rel. Rodgers v. Riley, 8th Dist. Cuyahoga No. 79977, 2001 Ohio App.LEXIS 3631
(Aug. 9, 2001) — sua sponte dismissal of a criminal defendant’s mandamus action
seeking to compel his attorney to give him various court records, including transcripts of
certain hearings; State ex rel. Jones v. Luskin, 8th Dist. Cuyahoga No. 87185,
2006-Ohio-3686 — mandamus to compel attorney to turn over all filings in underlying
criminal case denied; Booker v. Christman, 8th Dist. Cuyahoga No. 84330,
2004-Ohio-6572, and State ex rel. Grahek v. McCafferty, 8th Dist. Cuyahoga No. 88614,
2006-Ohio-4741 — mandamus actions to compel lawyers to release case files denied.
Accordingly, Wynn’s mandamus claim to compel his appellate attorney to send him the
records is not well founded. {¶6} Similarly, the principle that mandamus will not lie to enforce a private right
against a private person also precludes the use of mandamus to compel the appellate
attorney to include Wynn’s requested assignments of error in the brief.2 Wynn reliance
on Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1974), is
misplaced. Faretta stands for the proposition that an individual has the right of
self-representation, not that a client can insist that an appellate counsel include certain
arguments in a brief. Rather, in Jones v. Barnes, 463 U.S. 745, 751-752, 103 S.Ct.
3308, 77 L.Ed.2d 987 (1983), the United States Supreme Court upheld the appellate
advocate’s prerogative to decide strategy and tactics by selecting what he thinks are the
most promising arguments out of all possible contentions. The Court noted,
“Experienced advocates since time beyond memory have emphasized the importance of
winnowing out weaker arguments on appeal and focusing on one central issue if possible,
or at most on a few key issues.”
{¶7} Finally, the court in its discretion declines to grant a writ of mandamus for
Wynn’s third claim because it is difficult to discern what relief he is seeking. To the
extent that he seeks a copy of the subject journal entry, the claim is moot because Wynn
received a copy of it as an attachment to the prosecutor’s summary judgment motion.3
2In the appeal, this court permitted Wynn to file a supplemental brief not to exceed ten pages. Instead, Wynn filed a 31-page brief. This court struck that brief for failing to comply with the court’s order, but allowed him to file a complying brief within 17 days. He did not do so.
3The September 14, 2015 journal entry consists of two pages. The first states: “Defendant’s waiver of counsel signed, attached and ordered filed. OSJ.” It is file-stamped September 14, 2015; it contains a signature line for the judge, but there is no signature. The second page, also file-stamped Scrutiny of his demand allows for other interpretations, such as seeking a declaration that
the waiver was invalid because the judge did not sign the first page, or that the clerk
should strike it from the record because it is invalid, or that it should be signed and then
recorded on the docket. Given this uncertainty, mandamus will not lie.
{¶8} Accordingly, this court denies the application for a writ of mandamus.
Relator to pay costs. This court directs the clerk of courts to serve all parties notice of
this judgment and its date of entry upon the journal as required by Civ.R. 58(B).
{¶9} Writ denied.
MELODY J. STEWART, PRESIDING JUDGE
MARY J. BOYLE, J., and PATRICIA ANN BLACKMON, J., CONCUR
September 14, 2015, contains three paragraphs showing that Wynn knowingly and voluntarily waived his right to counsel, and it contains both the judge’s and Wynn’s signatures.