IN THE SUPREME COURT OF OHIO ORIGINAL ACTION IN PROHIBITION MELVIN BONNELL'S MOTION TO INTERVENE AS A RESPONDENT

Transcription

1 IN THE SUPREME COURT OF OHIO State ex rel. Cuyahoga County Prosecutor William D. Mason, Relator, Case No v. The Honorable Judge Timothy McCormick : Cuyahoga County Court of Common Pleas : Respondent. ORIGINAL ACTION IN PROHIBITION MELVIN BONNELL'S MOTION TO INTERVENE AS A RESPONDENT WILLIAM D. MASON Kimberly S. Rigby (# ) Cuyahoga County Prosecuting Attorney Andrew J. King (# ) Assistant State Public Defenders Matthew E. Meyer (# ) (COUNSEL OF RECORD) Assistant Prosecuting Attorney Office of the Ohio Public Defender Justice Center, 8th Floor 250 East Broad St., Suite Ontario Street Columbus, Ohio Cleveland, Ohio (614) (216) (614) Fax (216) Fax Laurence E. Komp (# Attorney at Law P.O. BOX 1785 Manchester, MO p JUN d 0 to1q (636) CLERK OF COURT (636) (Fax) SUPREME C UR'f OF HIO lekomp(cr^swbell.net COUNSEL FOR RELATOR COUNSEL FOR APPLICANT-INTERVENOR

2 IN THE SUPREME COURT OF OHIO State ex rel. Cuyahoga County Prosecutor William D. Mason, V. Relator, Case No The Honorable Judge Timothy McCormick Cuyahoga County Court of Common Pleas Respondents. ORIGINAL ACTION IN PROHIBITION MELVIN BONNELL'S MOTION TO INTERVENE AS A RESPONDENT Melvin Bonnell moves for leave to intervene in this action as a Respondent. Civ.R. 24(A),(B); S.Ct.R. X(2) (an original action is governed by the Ohio Rules of Civil Procedure). The attached memorandum and exhibits support this motion. A motion to dismiss, which is required under Civ.R. 24(C), is attached as Exhibit A. Respectfully submitted, Kimberly S. Rigby (# ) Andrew J. King (# ) Assistant State Public Defenders Office of the Ohio Public Defender 250 East Broad St., Suite 1400 Columbus, Ohio (Fax) Kim.Rigby@opd.ohio.gov 2

3 -and- Laurence E. Komp (# ) Attorney at Law P.O. BOX 1785 Manchester, MO (636) (636) (Fax) lekompkswbell.net COUNSEL FOR APPLICANT-INTERVENOR MEMORANDUM IN SUPPORT 1. Introduction Relator William D. Mason, Cuyahoga County Prosecuting Attorney, has filed this prohibition action to stop the respondent, Judge McCormick, from ruling on Bonnell's motion, which moves the trial court to file a final appealable order because the purported judgment of conviction does not comply with Crim.R. 32(C). Bonnell filed that motion under this Court's precedent, particularly State v. Baker, 2008-Ohio-333, and State ex rel Culgan v. Medina Cty. Court of Common Pleas, 2008-Ohio Bonnell asks to intervene in this proceeding because this writ is an attempt to thwart his proper attempt to obtain a properly filed judgment of conviction. And if this writ is granted, Bonnell will be denied his right to a final appealable order. Relator's causes of action are based, in substantial part, upon the argument that Bonnell should be denied a final appealable order because Bonnell would then appeal from that judgment. Although Relator tacitly acknowledges Baker and Culgan apply to this case, he asks this court to prevent the trial court from following this Court's precedents. None of the arguments Relator sets forth are persuasive. Further, if Relator has issue with this Court's holdings, the proper process is to ask this Court to reconsider its holding on appeal-not by 3

4 short-circuiting the normal process of review by prohibiting the trial court from following that authority. Accordingly, Relator is incorrect to seek an extraordinary writ simply because the application of this Court's established precedent is adverse to his interests in a particular case. And this Court should permit Bonnell to intervene for the following reasons. II. Bonnell is entitled to intervene as a matter of right under Civ.R.24(A). Intervention should be liberally allowed under Civ.R.24(A)(2) if four requirements are met: (1) there must be a timely application made; (2) the applicant must have a protectable interest relating to the subject of the action; (3) the applicant must be in a such a position that the effect of the action may impair or impede the applicant's interest; and (4) that interest must not be adequately represented by existing parties. State ex rel. Gray Road Fill, Inc. v. Wray (1996), 109 Ohio App.3d 812, 815, 673 N.E.2d 198; Fink, Greenbaum, & Wilson, Guide to the Ohio Rules of Civil Procedure (2004 Edition) p. 24-6, Whether an intervention motion is timely depends on the facts and circumstances of the particular case. Gray Road Fill, 109 Ohio App.3d at 815. All that has been filed to date in this case is the prohibition complaint. The parties will not be prejudiced if the motion is granted because it is very early in these proceedings. Any further filings will be submitted in accordance with the applicable time limits. Second, Bonnell has a protectable interest in this case because he seeks a final appealable order from the trial court. Below, Bonnell moved the trial court to re-sentence him and file a valid judgment of conviction. Without a proper judgment of conviction, Bonnell cannot properly pursue his right to appeal. Section (A) of the Revised Code limits appellate review to fmal orders and judgments. State ex rel. Scruggs v. Sadler, 97 Ohio St. 3d 78, 2002-Ohio-5315, at 4. This statute plainly restricts the appellate court's jurisdiction to reviewing either a fmal 4

5 order or judgment. So, Bonnell's interest is obtaining a final appealable order to properly pursue his appeal of right, as the prior judgment of the appellate court is void. See State v. Simpkins, 2008-Ohio Third, this action will obviously impede Bonnell's interests because Relator is asking this Court to prohibit the trial court from filing a valid judgment of conviction. That is, after all, Relator's sole purpose in filing this writ. Further, Bonnell's interests are not adequately represented by Judge McCormick. Although at a basic level, Judge McCormick and Bonnell have a common interest in allowing the court to rule on the motion, Bonnell's interests are not adequately represented by the Respondent. Lastly, Bonnell has a personal stake in this outcome; whereas, Judge McCormick is merely protecting the prerogatives of the office he holds. Not only is Bonnell more interested, but Judge McCormick indicated to the undersigned counsel and Relator that he did not intend to file an answer. Certainly, if Judge McCormick does not file an answer, then Bonnell's interests will not be represented at all. But even if Judge McCormick does file an answer, Bonnell's personal interest in the outcome of this action will not be adequately represented. III. Bonnell should be allowed to intervene under Civ.R.24(B). Intervention is also appropriate under Civ.R. 24(B), which governs pennissive intervention. Permissive intervention should be liberally allowed when the applicant states claims or defenses that share an issue of law or fact in common with the main action, and when intervention will not unduly delay or prejudice the original parties. Guide to the Ohio Rules of Civil Procedure, p , See also State ex rel. SuperAmerica Group v. Licking Cty. Bd ofelections, 80 Ohio St.3d 182, 184, 1997-Ohio-347, 685 N.E.2d

6 Bonnell shares an interest with Respondent Judge McCormick in permitting the trial court to rule on his motion. Both Judge McCormick and Bonnell are interested in letting the trial court exercise its proper authority under Baker and Culgan. And the original parties will not be delayed or prejudiced by the intervention, because intervention is being sought early in the proceedings. Therefore, permissive intervention is appropriate. IV. Conclusion Intervention should be liberally allowed. State ex rel. Watkins v. Eighth Dist. Court of Appeals, 82 Ohio St.3d 532, 534, 1998-Ohio-190, 696 N.E.2d Bonnell has shown that both mandatory and permissive intervention are appropriate in this case. Intervention by Bonnell will aid this Court in considering the issues raised in this action because Bonnell has a personal interest in this case, which is not adequately represented by Judge McCormick. For all of the foregoing reasons, this Court should allow Bonnell to intervene as a Respondent. Respectfully submitted, Kimberly S. Rigby (# ) Andrew J. King (# ) Assistant State Public Defenders Office of the Ohio Public Defender 250 East Broad St., Suite 1400 Columbus, Ohio (Fax) Kim.Rigby@opd.ohio.gov -and- Lawrence E. Komp (# ) Attorney at Law P.O. BOX 1785 Manchester, MO 6

7 (636) (636) (Fax) lekompna swbell.net COUNSEL FOR APPLICANT-INTERVENOR CERTIFICATE OF SERVICE I hereby certify that a true and accurate copy of the foregoing Melvin Bonnell's Motion to Intervene has been served by regular U.S. Mail upon Matthew E. Meyer, Cuyahoga County Assistant Prosecuting Attorney, Cuyahoga County Prosecutor's Office, Justice Center Blvd., 8th Floor, 1200 Ontario Street, Cleveland, OH and Judge Timothy McComiick, Cuyahoga County Court of Common Pleas, 20C Justice Center, 1200 Ontario Street, Cleveland, OH on this 18th day of June, K' un b er I y S.#0 y 78 Assistant State Public Defender COUNSEL FOR APPLICANT-INTERVENOR 7

8 IN THE SUPREME COURT OF OHIO State ex rel. Cuyahoga County Prosecutor William D. Mason, Relator, Case No V. The Honorable Judge Timothy McCormick : Cuyahoga County Court of Common Pleas : Respondent. ORIGINAL ACTION IN PROHIBITION MELVIN BONNELL'S MOTION TO DISMISS RELATOR'S COMPLAINT UNDER CIV.R.12(B)(6) Relator's complaint should be dismissed because the trial court can lawfully determine its own jurisdiction, and Relator has an adequate remedy by way of an appeal. State ex rel. Florence v. Zitter, 106 Ohio St. 3d 87, 2005-Ohio-3804, at 15. A memorandum in support is attached hereto. Respectfally submitted, Kimberly S. Rigby (# ) Andrew J. King (# ) Assistant State Public Defenders Office of the Ohio Public Defender 250 East Broad St., Suite 1400 Columbus, Ohio (Fax) Kim.Rigby@opd.ohio.gov EXHIBIT 1 'g ^

9 -and- Lawrence E. Komp (# ) Attorney at Law P.O. BOX 1785 Manchester, MO (636) (636) (Fax) lekompkswbell.net COUNSEL FOR APPLICANT-INTERVENOR MEMORANDUM IN SUPPORT 1. Introduction A writ of prohibition will not be granted if the trial court's judgment can be appealedno matter how wrong the underlying decision may be. Melvin Bonnell moved the trial court to file a proper judgment of conviction. Once that motion is granted and a final judgment filed, Relator can appeal the trial court's grant of that motion. Therefore, Relator is not entitled to an extraordinary writ. II. Relator's complaint should be dismissed because the trial court has jurisdiction and an appeal is an adequate remedy. A. The trial court does not patently and unambiguously lack jurisdiction over the case. In order to be entitled to the requested writ of prohibition, Relator must establish that (1) Judge McCormick is about to exercise judicial power, (2) the exercise of that power is not authorized by law, and (3) denial of the writ will cause injury for which no other adequate remedy in the ordinary course of law exists. State ex rel. Mason v. Griffin, 104 Ohio St.3d 279, 2004 Ohio 6384, 819 N.E.2d 644, P12. A writ of prohibition will not issue to prevent an erroneous judgment, to serve the purpose of an appeal, or to correct mistakes of the lower court 2

10 in deciding questions within its jurisdiction. State ex rel. Sparto v. Juvenile Court of Drake County (1950), 153 Ohio St. 64, 90 N.E.2d 598. Specifically, in considering the second and third requirements as stated above, the key consideration is whether the trial court has jurisdiction. State ex rel. Florence v. Zitter, Ohio-3804, at 15. If the court lacks jurisdiction, then Relator is entitled to the writ since the exercise of power by that court would not be authorized by law, and the alternate remedy of appeal is immaterial. Id. at 16. But if the court has jurisdiction, a writ will be denied because Relator has an adequate remedy through an appeal. Id. at 15. Ordinarily, the question of jurisdiction is resolved by the lower court itself. State ex rel. Lipinski v. Cuyahoga County Common Pleas Court (1995), 74 Ohio St. 3d 19, 22. But in rare situations, a court may so patently and unambiguously lack jurisdiction that a party can obtain a writ of prohibition. Id. Thus, it follows that if a court with apparent jurisdiction determines it has jurisdiction and proceeds to erroneously rule on the matter, an aggrieved party has an adequate remedy by way of an appeal. Here, Judge McCormick does not patently and unambiguously lack jurisdiction to rule on Bonnell's motion. In Baker, this Court determined that unless a judgment of conviction adheres to the formalities of Crim.R.32(C), it is not a final appealable order. State v. Baker, 2008-Ohio- 3330, at 10. Later, this Court held that the process for obtaining a proper judgment of conviction from the trial court was for a defendant to move the court for such a judgment, and if the motion was not granted, then a defendant was to seek a writ of mandamus from a superior court. State ex rel. Culgan v. Medina Cty. Court of Common Pleas, 2008-Ohio Both these cases demonstrate that the trial court has jurisdiction to enter a proper judgment in the case before it. Moreover, Culgan expressly establishes the procedure by which a 3

11 defendant can obtain a judgment compliant with Crim.R.32(C). It is hardly the case the trial court clearly lacks jurisdiction if it is following the direction of this Court. In fact, it is bound to follow this Court's precedents. See State v. Hardesty, Fourth Dist. No. 07CA02, 2007-Ohio- 3889, at 14 In his complaint, Relator acknowledges that appellate courts have followed Baker in the same fashion that Bonnell asks the trial court to act. Relator's Complaint, 21. This admission alone should be sufficient to defeat the complaint because it shows that the trial court is not clearly without jurisdiction. And the remainder of the complaint consists mainly of prudential arguments why Baker should not apply to this case, with a few legal arguments that Baker should be limited or distinguished. Id., 31-34, 40, 42, These arguments are not germane to whether the trial court patently and unambiguously lacks jurisdiction to grant the motion. See Kelley v. State ex rel. Gellner (1916), 94 Ohio St. 331, 114 N.E. 255, paragraph three of the syllabus ("[The writ of prohibition] is not an appropriate remedy for the correction of errors, and does not lie to prevent an erroneous decision in a case which the court is authorized to adjudicate."); Barton v. Butler Cty. Bd. of Elections (1988), 39 Ohio St. 3d 291, 292, 530 N.E.2d 871 (same). Certainly nothing in Relator's arguments justify an extraordinary writ, stopping the trial court from following precedent. Moreover, all these arguments can be raised and addressed on appeal. B. Relator has an adequate remedy in an appeal. The starting point for this Court's analysis is this Court's longstanding principle that a writ of prohibition is not a substitute for an appeal. State ex rel. Jones v. Suster (1998), 84 Ohio St. 3d 70, 78, 701 N.E.2d 1002; State ex rel. Crebs v. Wayne Cry. Court of Common Pleas (1974), 38 Ohio St. 2d 51, 52, 67 Ohio Op. 2d 61, 309 N.E.2d 926, 927; State ex rel Winnefeld 4

12 v. Butler Cty. Court of Common Pleas (1953), 159 Ohio St. 225, 50 Ohio Op. 263, 112 N.E.2d 27. Relator's writ violates this longstanding principle. Relator's sole assertion that an appeal from this motion is inadequate is that it will take too long to fully adjudicate this issue. Id., 51. First, if it turns out Relator is correct that the trial court should not grant the motion, that will be decided conclusively after an appeal and possibly further review by this Court. This is hardly cause for panic. If, as Relator suggests, that the normal time for the direct appeals process is so lengthy that it is legally inadequate, then Ohio's entire appellate process is inadequate. And that is an extreme claim. This Court rejected a similar argument in State ex rel. Jones v. Suster (1998), 84 Ohio St. 3d 70, 78, 701 N.E.2d 1002 (accepting that argument would be a "slippery slope"). Second, Relator mistakenly conflates the consequence of applying Baker with whether an appeal is an adequate remedy.' Relator details the consequences of applying Baker, suggesting those consequences are relevant to the question of the inadequacy of the remedy. But they are not. If all prior appellate and collateral litigation are a nullity, that is simply the straightforward result of the application of a legal rule. And the trial court's application of this specific rule has no bearing on the adequacy of the remedy, which here is an appeal. In essence, the appellate process is about reviewing how the trial court applied certain rules in specific contexts. On the other hand, a writ of prohibition is about stopping the trial court from acting outside of its jurisdiction. The issue here is really about how Baker will be applied in Bonnell's case-not that the trial court lacks jurisdiction. Plainly, Relator feels that ' For instance, Relator asserts that there has been a delay in raising the Baker issue. Setting aside Baker is of recent vintage, ajurisdictional defect cannot be waived Painesville v. Lake Cty. Budget Comm. (1978), 56 Ohio St. 2d 282, 10 Ohio Op. 3d 411, 383 N.E.2d 896. This means that the lack of jurisdiction can be raised at any time. See In re Byard (1996), 74 Ohio St. 3d 294, 296, 658 N.E.2d 735, 737. This is because jurisdiction is a condition precedent to the court's ability to hear the case. If a court acts without jurisdiction, then any proclamation by that court is void. Patton v. Diemer (1988), 35 Ohio St. 3d 68,518 N.E.2d

13 Baker should not apply here. But the question of how a legal rule is to be applied is not one that ought to be resolved by an action for an extraordinary writ. Rather, questions regarding the contours of legal rules should be resolved in the usual way-by appeal. Moreover, Relator, in this action, is not asking this Court to apply Baker differently; rather, he asks this Court to prevent the trial court from applying Baker in any way. Thus, Relator is using this writ offensively to avoid unfavorable precedent. A writ of prohibition "tests and determines `solely and only' the subject matter jurisdiction" of the lower court. State ex rel. Eaton Corp. v. Lancaster (1988), 40 Ohio St.3d 404, 409, 534 N.E.2d 46; State ex rel. Staton v. Franklin Cty. Common Pleas Court (1965), 5 Ohio St.2d 17, 21, 34 Ohio Op. 2d 10, 213 N.E.2d 164. However, prohibition is not available to prevent an anticipated erroneous judgment. Id., State ex rel. Jones v. Suster (1998), 84 Ohio St. 3d 70, 74. Not only is this, avoiding application of the law of this Court, a far cry from the writ's intended purpose, but it also subjects the writ to a great deal of mischief. Here, boiled down to its essence, Relator's argument is that Baker should not be applied to a single person-melvin Bonnell-simply because such an application is adverse to Relator's interests. Relator's distaste about the result does not justify deviating from the ordinary legal process and the writ process should not be so abused. Indeed, Relator's distaste acts as an implicit concession that Bonnell is entitled to relief under Baker; thus underscoring the illegitimacy of the current action and the need for dismissal. III. Conclusion In light of both Baker and Culgan, it can hardly be said that the trial court patently and unambiguously lacks jurisdiction over Bonnell's motion. Because the trial court has jurisdiction over the motion, Relator has an adequate remedy in appealing the court's decision to grant the 6

14 motion. And there is nothing so onerous about the normal delay in the appellate process to render an appeal an inadequate remedy. Thus, the availability of appeal and the trial court's jurisdiction, preclude granting the writ of prohibition. Respectfully submitted, By: i, L\4"- S Kimberly S. Rigby (# ) Andrew J. King (# ) Assistant State Public Defenders Office of the Ohio Public Defender 250 East Broad St., Suite 1400 Columbus, Ohio (Fax) Kim.Rigby@opd.ohio.gov -and- Laurence E. Komp ( ) Attorney at Law P.O. BOX 1785 Manchester, MO (636) (636) (Fax) lekomp@swbell.net COUNSEL FOR APPLICANT INTERVENOR 7