Thompson v. State

2013 Ohio 1907

• Court: Ohio Court of Appeals
• Decided: May 7, 2013
• Docket: 99265
• Status: Published

Opinion

[Cite as Thompson v. State, 2013-Ohio-1907.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99265

BOBBY C. THOMPSON

RELATOR

vs.

STATE OF OHIO RESPONDENT

JUDGMENT: WRIT DENIED

Writ of Mandamus Motion No. 462222 Order No. 464293

RELEASE DATE: May 7, 2013 FOR RELATOR

Bobby C. Thompson, pro se Inmate No. 0295315 Cuyahoga County Jail P.O. Box 5600 Cleveland, Ohio 44101

ATTORNEYS FOR RESPONDENT

Timothy J. McGinty Cuyahoga County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113

Mike DeWine Ohio Attorney General 30 East Broad Street 17th Floor Columbus, Ohio 43215

Brad L. Tammaro Assistant Attorney General Special Prosecuting Attorney P.O. Box 968 Grove City, Ohio 43123 FRANK D. CELEBREZZE, JR., P.J.:

{¶1} On December 11, 2012, the relator, Bobby C. Thompson, commenced this

mandamus action; he named the state of Ohio as respondent. In the underlying case,

State v. Thompson, Cuyahoga C.P. No. CR-565050, he is facing charges of engaging in a

pattern of corrupt activity, complicity in theft, complicity in money laundering, tampering

with records, identity fraud, and possession of criminal tools. Through mandamus, he

seeks this court (1) to issue a temporary restraining order staying all proceedings in the

underlying case, as well as a general stay of proceedings, until this mandamus action is

completely resolved; (2) to order the complete record from the underlying case to be

transferred to this court; (3) to order that any of Thompson’s November 2, 2012 motions,

which may have been stricken, be unstricken; (4) to order the clerk of court to provide

file-stamped copies of these motions to this court and the parties; (5) to allow Thompson

to file hand-printed pleadings in this matter; (6) to prohibit the trial court from postdating

any journal entries related to a November 13, 2012 hearing so he may file a timely appeal

from those journal entries; (7) to allow him to appear before this court for any oral

arguments in regular clothes and unshackled; (8) to compel the trial court in the

underlying case to issue journal entries for his November 2, 2012 motions and for the

November 13, 2012 hearing, and for this court to grant all of his motions in the

underlying case; (9) to compel the trial court to hold a hearing to allow Thompson to

proceed in the underlying case pro se; (10) to grant his November 2, 2012 motions; (11) to order the prosecuting attorneys not to file motions that would inhibit Thompson from

asserting his constitutional rights; and (12) to order the trial court to issue journal entries

from November 13, 2012, forward for any actions taken during hearings.

{¶2} On January 2, 2013, the Cuyahoga County Prosecutor filed “Respondent

State of Ohio Memorandum Contra Petition for Writ of Mandamus.” On January 11,

2013, this court converted the “memorandum contra” to a motion for summary judgment.

Thompson filed opposing briefs on January 15, 2013, and February 6, 2013. The court

has reviewed these filings, the attached materials, and the docket in the underlying case

and concludes that this matter is ripe for resolution. For the following reasons, this court

grants the respondent’s motion for summary judgment and denies the application for a

writ of mandamus.

Procedural and Factual Background

{¶3} The gravamen of this matter is Thompson’s legal representation in the

underlying case: whether he represents himself with or without advisory/ standby counsel,

whether he has appointed counsel, or whether he has hybrid representation — he and

appointed counsel act as equal co-counsel.1

1 In State v. Washington, 8th Dist. Nos. 96565 and 96568, 2012-Ohio-1531, this court explained that in Ohio an indigent defendant has the right to representation by appointed counsel or to proceed pro se with the trial court allowing the assistance of standby or advisory counsel. In the latter, the defendant is representing himself, but may ask for advice from the standby counsel, and in certain cases, standby counsel at the request of the defendant may assume more traditional duties, such as examining witnesses or presenting argument. In the “hybrid representation” scenario, defendant and the attorney are co-counsel. However, Ohio does not recognize “hybrid representation.” State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227. {¶4} Initially, Thompson asked that he be recognized as lead counsel with his

appointed counsel as co-counsel, in other words hybrid representation. When the trial

judge clarified that hybrid representation was not available in Ohio, Thompson withdrew

the motion.2 Subsequently, Thompson’s first appointed counsel withdrew from the case

because he believed that alone he could not adequately represent Thompson.3 At that

time, Thompson indicated that he still did not want to represent himself, although he had

filed pro se motions. The trial judge then appointed new counsel, denied Thompson’s

pro se motions, and told Thompson that he was not to file other pro se motions.

{¶5} On November 2, 2012, Thompson filed the subject motions. The docket lists

them as follows: (1) Motion for appointment of counsel; (2) Motion for assignment of

additional counsel, and motions related in the alternative; (3) Motion for appointment of

counsel supplemental and in the alternative motions; and (4) Motion for smooth transition

of counsel and motion for motion/ order to be filed under seal.4 The trial judge held a

2 The state of Ohio initially prosecuted Thompson on related indictments in State v. Thompson, Cuyahoga C.P. Nos. CR-543025 and CR-545577. This discussion on representation occurred in one of the earlier cases. The state has since dismissed those earlier cases and is proceeding on the underlying case.

3 The state alleges that Thompson and at least two other individuals set up a phony charitable organization and hired professional charitable solicitors to obtain money, who sent the money to certain bank accounts. The state concludes that Thompson and the others then withdrew the money for their own purposes. The materials before this court indicate that there are over 100,000 pages of records or evidence involved and 1.5 million dollars may have been stolen in this matter.

4 The respondent provided a copy of Thompson’s “Motion for assignment of additional counsel and motions related in the alternative.” The parties did not provide this court with copies of the other motions. A fair reading of Thompson’s 22-page motion is that he is requesting hybrid representation for a team of at least 11 lawyers with himself as lead counsel. hearing on November 13, 2012, on the subject motions. The state argued that they were

not properly before the court because the court had forbidden Thompson to file pro se

motions because he had representation. Appointed counsel said that he had not seen the

motions and could not argue that they should not be stricken. Thompson indicated that he

was asserting his right to self representation and that the motions made that clear. The

trial judge stated that the court would strike the motions. However, the trial court never

issued any journal entries resolving the subject motions. Indeed, the respondent’s brief

at page four confirms that there is no journal entry to reflect the trial court’s decision

made at the November 13, 2012 hearing. A review of the docket shows no such journal

entry has been issued. A court speaks only through its journal; a judge’s oral

pronouncements from the bench do not constitute a decision. State ex rel. Ruth v.

Hoffman, 82 Ohio App. 266, 80 N.E.2d 235 (1st Dist.1947). Thus, the subject motions

remain outstanding.

{¶6} Despite what Thompson said at the initial stages of this matter, it now

appears that he wishes to represent himself pro se, as compared to hybrid representation,

and that he is doing so. First, there was his statement at the November 13, 2012 hearing

that he is invoking his constitutional right to represent himself. When he filed this writ

action, he started his petition with: “I want to be my own attorney [‘counsel pro se] * *

*.” Then on January 30, 2013, he filed and the trial court entered his waiver of attorney.

The waiver states in pertinent part as follows: “I, Bobby Thompson, the Defendant in this

case, hereby voluntarily waive and relinquish my right to an attorney, and elect to represent myself to this Court of Common Pleas.” Subsequently, he has filed

approximately 70 pro se motions, and the trial court has ruled on some of them. On

February 19, 2013, the trial court issued the following entry: “Defendant indigent;

attorney Joseph C. Patituce assigned. Laptop provided by state and uploaded with

discovery by Joseph C. Patituce, to be provided to the defendant, pro se. Attorney

Patituce to remain as advisory counsel.” Finally, the docket shows that on March 1,

2013, Thompson filed a motion to discharge Patituce as advisory counsel. Accordingly,

this court concludes that Thompson is now representing himself pro se.

Conclusions of Law

{¶7} 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.

Additionally, although mandamus may be used to compel a court to exercise judgment or

to discharge a function, it may not control judicial discretion, even if that discretion is

grossly abused. State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914 (1987).

Furthermore, mandamus is not a substitute for appeal. State ex rel. Keenan v.

Calabrese, 69 Ohio St.3d 176, 631 N.E.2d 119 (1994); and State ex rel. Pressley v. Indus.

Comm. of Ohio, 11 Ohio St.2d 141, 228 N.E.2d 631 (1967), paragraph three of the

syllabus. Thus, mandamus does not lie to correct errors and procedural irregularities in

the course of a case. State ex rel. Jerninghan v. Gaughan, 8th Dist. No. 67787, 1994

Ohio App. LEXIS 6227 (Sept. 26, 1994). Moreover, 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); and State ex rel. Connole v. Cleveland Bd. of Edn., 87 Ohio App.3d 43, 621

N.E.2d 850 (8th Dist.1993).

{¶8} Although mandamus should be used with caution, the court has discretion in

issuing it. In Pressley, 11 Ohio St.2d 141, 228 N.E.2d 631, 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.”

{¶9} First, the petition is defective because it is improperly captioned. Thompson

styled this petition as “Bobby Thompson v. State of Ohio.” 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. Maloney v. Court of Common Pleas of Allen

Cty., 173 Ohio St. 226, 181 N.E.2d 270 (1962).

{¶10} Moreover, the failure to caption the case correctly creates uncertainty as to

the identity of the respondent and the duties and rights to be enforced. The failure to

name the respondents specifically creates doubts as to whether Thompson seeks some

branch of the state of Ohio, or the clerk of courts, or the trial judge, or this court, or the

prosecuting attorney to perform some clear legal duty. This court has held that this deficiency alone also warrants dismissal. State ex rel. Calloway v. Court of Common

Pleas of Cuyahoga Cty., 8th Dist. No. 71699, 1997 Ohio App. LEXIS 706 (Feb. 27,

1997); and Jordan v. Cuyahoga Cty. Court of Common Pleas, 8th Dist No. 96013,

2011-Ohio-1813.

{¶11} Additionally, Thompson failed to support his complaint with an affidavit

“specifying the details of the claim” as required by Loc.App.R. 45(B)(1)(a). State ex rel.

Leon v. Cuyahoga Cty. Court of Common Pleas, 123 Ohio St.3d 124, 2009-Ohio-4688,

914 N.E.2d 402; and State ex rel. Wilson v. Calabrese, 8th Dist. No. 70077, 1996 Ohio

App. LEXIS 6213 (Jan. 18, 1996). Thompson attached a “Verification” in which he states

merely that all of the statements are true and correct under penalty of perjury, but the

verification is not notarized. In Leon, the Supreme Court of Ohio upheld this court’s

ruling that merely stating in an affidavit that the complaint was true and correct was

insufficient to comply with the local rule. In Chari v. Vore, 91 Ohio St.3d 323,

2001-Ohio-49, 744 N.E.2d 763, the Supreme Court of Ohio ruled: “‘Verification’ means

a ‘formal declaration made in the presence of an authorized officer, such as a notary

public, by which one swears to the truth of the statement in the document.’ Garner,

Black’s Law Dictionary (7 Ed.1999) 1556 * * *.” The Supreme Court of Ohio then

reversed the court of appeals’ granting of the writ and awarding of relief and held that the

cause should have been summarily dismissed because the petition was procedurally

defective. Therefore, Thompson has not submitted a proper verification or affidavit under Ohio law, and this court denies his application on this basis. Griffin v. McFaul,

116 Ohio St.3d 30, 2007-Ohio-5506, 876 N.E.2d 527.

{¶12} Moreover, many of Thompson’s claims are beyond the power of this court

and the scope of mandamus. Thompson requests a stay of all proceedings in the

underlying case until this mandamus action is fully resolved. In France v. Celebrezze,

8th Dist. No. 98147, 2012-Ohio-2072, this court ruled that the filing for an original action

does not automatically stay the underlying case. Additionally, Ohio courts of appeals lack

original jurisdiction in prohibitory injunction. State ex rel. Chattams v. Pater, 131 Ohio

St.3d 119, 2012-Ohio-55, 961 N.E.2d 186.

{¶13} Mandamus will not lie to remedy the anticipated nonperformance of a duty.

Ohio Dept. of Adm. Serv., Office of Collective Bargaining v. State Emp. Relations Bd., 54

Ohio St.3d 48, 562 N.E.2d 125 (1990). Nor will mandamus issue to compel the

observance of laws generally. State ex rel. Tillimon v. Weiher, 65 Ohio St.3d 468,

1992-Ohio-83, 605 N.E.2d 35. Thus, this court will not issue a writ of mandamus to

prohibit the prosecuting attorney from filing improper motions or to prohibit the trial

court from postdating any journal entries.

{¶14} Because mandamus may not control judicial discretion, the writ will not lie

to compel the trial court to grant all or any of Thompson’s motions or to compel the trial

judge to unstrike any stricken motions. How a court resolves any given motion comes

within the discretion of the court. {¶15} The most viable claim in mandamus that Thompson poses is to compel the

trial court to issue journal entries on the November 2, 2012 motions. However, this court

declines to issue a writ of mandamus at this time. In State ex rel. Rodgers v. Cuyahoga

Cty. Court of Common Pleas, 83 Ohio App.3d 684, 615 N.E.2d 689 (8th Dist.1992), this

court held that the circumstances of the case, including the lapse of time, the need for

discovery, the issues presented, other pending motions, other pending matters, and the

trial court’s inherent power to regulate procedure that justice may result, determine when

an inordinate amount of time has lapsed so as to necessitate mandamus to compel a

ruling. The present case’s circumstances, including Thompson’s pro se representation

and the multiple motions he has filed, do not compel the issuance of mandamus at this

time to resolve the November 2, 2012 motions. Eventually, the trial court needs to

resolve those motions. Whether the trial court grants, denies, denies as moot, or strikes

those motions is within its discretion, but this court need not now compel a ruling.

{¶16} Finally, this court concludes that this matter is moot. A review of all the

materials Thompson submitted shows that his ultimate objective was to represent himself

in the underlying case. He is now doing so. If a matter is moot, the court should

dismiss. State ex rel. Eliza Jennings, Inc. v. Noble, 49 Ohio St.3d 71, 551 N.E.2d 128

(1990).

{¶17} Accordingly, this court grants the respondent’s motion for summary

judgment and denies the application for a writ of mandamus. Relator to pay costs. This court directs the clerk of court to serve all parties notice of this judgment and its date of

entry upon the journal as required by Civ.R. 58(B).

{¶18} Writ denied.

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

LARRY A. JONES, SR., J., and KATHLEEN ANN KEOUGH, J., CONCUR