IN THE SUPREME COURT OF OHIO. Case No

Transcription

1 IN THE SUPREME COURT OF OHIO State ex, rel., ZONOU, v. Relator, JUDGE WILLIAM MALLORY, et al., Case No Original Action in Mandamus Respondents. MOTION TO DISMISS OF RESPONDENTS MALLORY, SUNDERMANN, CUNNINGHAM, HENDON, HILDEBRANDT, AND CLERK OF COURT Claude Zonou # P.O. Box 7010 Chillicothe, Ohio Relator MIKE DeWINE ( ) Ohio Attorney General RENATA Y. STAFF ( ) Counsel of Record DAMIAN W. SIKORA ( ) Assistant Attorneys General Constitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, Ohio T: (614) ; F: (877) renata. gov Attorneys for Respondents 0 i^t 2' t,llkpt Ui' COURT SUPiiENiE COURT OF OHIO

2 IN THE SUPREME COURT OF OHIO State ex. rel., ZONOU, V. Relator, JUDGE WILLIAM MALLORY, et al., Case No Original Action in Mandamus Respondents. MOTION TO DISMISS OF RESPONDENTS MALLORY, SUNDERMANN, CUNNINGHAM, HENDON, HILDEBRANDT, AND CLERK OF COURT Pursuant to Sup. Ct. Prac. R and-0hio Civ. Rule 12(B)(6), Respondents William Mallory, Howard Sundermann, Penelope R. Cunningham, Sylvia Sieve Hendon, Lee H. Hildebrandt, judges of the Ohio First District Court of Appeals, and the Clerk of Court of the Ohio First District Court of Appeals hereby move this Court to dismiss Relator's petition for a writ of mandamus. Respondents have attached a memorandum in support. Respectfully submitted, MIKE DeWINE ( ) 4tw) Ohio Attorney -^&, General RENATA Y. ST FF (0086 Counsel of Record DAMIAN W. SIKORA ( ) Assistant Attorneys General C9nsitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, Ohio T: (614) ; F: (877) renata. staff@ohioattorneygeneral. gov damian.sikora@ohioattorneygeneral.gov Attorneys for Respondents

3 MEMORANDUM IN SUPPORT 1. INTRODUCTION Relator Claude Zonou initiated this mandamus action to compel Respondents, William Mallory, Jr., Howard Sundermann, Jr., Penelope R. Cunningham, Sylvia Sieve Hendon, Lee H. Hildebrandt, Jr., judges for the Ohio First District Court of Appeals ("First District"), and the Clerk for the Ohio First District Court of Appeals, to issue an opinion on his appeal and to rule on a Motion for Reconsideration. Relator's Complaint, p. 2. Relator also seeks to compel this Court to remand his case to trial court. Id. Relator's complaint in mandamus should be dismissed for the following reasons: (1) Because Relator's consolidated appeals were assigned to the accelerated calendar, the First District is permitted to issue judgment entries without opinions pursuant to Ohio App. R. 11.1(E); and (2) Relator's request for a ruling on his Motion for Reconsideration is moot because the First District has already ruled on this motion. II. STATEMENT OF FACTS Relator is an inmate at a correctional facility. A jury found the Relator guilty of felonious assault, in violation of R.C (B)(1). State v. Zonou, "Judgment Entry," 1st App. Dist., Dec. 12, 2010, Nos. C , C , p. 1.1 Relator engaged in sexual conduct with an adult woman without disclosing to her that he was a carrier of HIV. Id. Relator's physicians had previously informed him of the dangers of spreading the disease. Id. The trial court sentenced Relator to a four-year prison term. Id. at p. 2. Relator appealed his conviction to the First District in two consolidated appeals, Nos. C and C Id. at p. 1. ' Civ. R. 12(B)(6) provides if the motion to dismiss presents matters outside the pleading and such matters are not excluded, the court must treat the motion as a motion for summary judgment under Civ. R. 56, However, "Documents attached to or incorporated into the complaint may be considered on a motion to dismiss pursuant to Civ. R. 12(B)(6)." State ex rel. Crabtree v. Franklin Cty. Bd ofhealth, 77 Ohio St.3d 247, 249. The court may review documents that were incorporated by reference into the complaint, even if not attached to the complaint. Weiner v. Klais & Co. (6th Cir. 1997), 108 F.3d 86, 89. Relator's complaint refers to the "Judgment Entry Without the Opinion on " issued by the First District. Relator's Complaint, p. 2. For the Court's convenience, Respondents attached this entry as Exhibit A. 1

4 Relator's consolidated appeals were assigned to the court's accelerated calendar pursuant to Ohio 1 st Dist. Loc. App. R (A) and Ohio App. R. 11.1(E). Id. The First District is permitted to issue judgment entries without opinions in appeals assigned to the accelerated calendar. Ohio App. R. 11.1(E). The First District affirmed Relator's conviction in a judgment entry journalized on December 3, Id. at p. 3. Relator later filed a Motion for Reconsideration asking for an opinion on his consolidated appeals. Relator's Complaint, p. 2. The First District overruled Relator's motion in an entry journalized on September 20, See infra p. 4. III. ARGUMENT A. Standard of Review In determining whether to grant a motion to dismiss pursuant to Civ. R. 12 (B)(6), a court "niust presume that all factual allegations in the complaint are true and must make all reasonable inferences in favor of the non-moving party." Mitchell v. Lawson Milk Co. (1984), 40 Ohio St. 3d 190, 192. Dismissal under Civ. R. 12(B)(6) is warranted if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" O'Brien v. Univ. of Community Tenants Union, Inc. (1975), 42 Ohio St. 2d 242, 245. B. Relator's Petition for Writ of Mandamus Must Fail. Relator is not entitled to the extraordinary writ of mandamus to compel respondents to issue an opinion because he has not established the three prerequisites for an order in mandamus to issue. Further, Relator's demand for an opinion on his Motion for Reconsideration is moot. Accordingly, Respondents request that this Court deny the Relator's complaint for a writ of mandamus. Relator must establish three requirements for a writ of mandamus to issue: (1) the relator has a clear legal right to the requested relief; (2) the respondent is under a clear legal duty to 2

5 perform the requested act; and (3) the relator has no plain and adequate remedy at law. State ex rel. Van Gundy v. Indus. Comm'n 11 I Ohio St. 3d 395, 2006-Ohio-5854, 856 N.E.2d 951, at Realtor's Request to Compel Respondents to Issue an Opinion Must Fail. Relator does not have a legal right to an opinion affirming the trial court's judgment and Respondents do not have the corresponding legal duty to provide this opinion. Respondents are permitted to issue judgment entries in appeals assigned to the accelerated calendar pursuant to Ohio App. R. 11.1(E), providing: The appeal will be determined as provided by App. R It shall be sufficient compliance with App. R. 12(A) for the statement of the reason for the court's decision as to each error to be in brief and conclusory form. The decision may be by judgment entry in which case it will not be published in any form. The First District uses an accelerated calendar. Ohio 1st Dist. Loc. App. R (A). Relator's consolidated appeals were assigned to the accelerated calendar and the First District issued a judgment entry affirming Relator's conviction journalized December 3, State v. Zonou, "Judgment Entry," 1 st App. Dist. Nos. C , C Because they are permitted to issue judgment entries in appeals assigned to the accelerated calendar, Respondents do not have a duty to issue an opinion affirming the Relator's conviction. Relator's failure to exercise an adequate remedy by timely appeal bars the writ of mandamus. This Court has held "[t]he fact that appellant failed to timely pursue his right of appeal does not make that remedy inadequate." State ex rel. Cartmell v. Dorrian (1984), 11 Ohio St. 3d 177, 178. Further, "A final judgment of conviction occurs when the judgment contains (1) the guilty plea, the jury verdict, or the finding of the court upon which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4) the entry on the 3

6 journal by the clerk of courts." State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, at syllabus. Relator has not established he lacked an adequate remedy at law. Relator argues "the only document that had been filed is the Judgment Entry Without the Opinion on , which prevented the Relator from filing a successful appeal to the Supreme Court of Ohio." Relator's Complaint, p. 2. The judgment entry issued by the First District is a final appealable order pursuant to Ohio Crim. R. 32 and R.C. 2505,02. The entry set forth the court's finding, affirmed the trial court's sentence, and included the signature of the judge as well as the entry on the journal by the clerk of courts. Because Relator failed to timely appeal the First District's decision affirming his conviction, he is not entitled to a writ of mandamus. C. Relator's Request to Compel Respondents to Rule on a Motion for Reconsideration is Moot. Relator improperly requests this Court to compel Respondents to rule on a motion the First District previously denied. "Mandamus will not be ordered if the result is to mandate a vain act." State, ex rel. Sawyer v. O'Connor (1978), 54 Ohio St. 2d 380, 383. Additionally, mandamus will not compel an act already performed. State ex rel. Grove v. Nadel (1998), 84 Ohio St. 3d 252, 253. Here, the First District denied Relator's Motion for Reconsideration in the "Entry Overruling Application for Reconsideration" journalized September 20, 2011? Respondents request that this Court take judicial notice of the "Entry Overruling Application for Reconsideration" (attached as Exhibit B) establishing that Respondents had previously performed the act requested by Relator, and his claim is moot. Z Although typically disallowed in a motion to dismiss, this Court may review evidence outside the record when detennining mootness. "In fact an event that causes a case to be moot may be proved by extrinsic evidence outside the record. " Pewitt v. Lorain Correctional Inst. (1992), 64 Ohio St. 3d 470, 472. Ohio appeals courts have reviewed judgment entries from earlier judicial proceedings when taking judicial notice of mootness. See e.g., Walker v. Russo, June 12, 2007, 8th App. Dist. Cuyahoga County, 2007-Ohio-2912, Ohio App. LEXIS

7 CONCLUSION For the foregoing reasons, this Court should dismiss Relator's action in mandamus. Respectfully submitted, MIKE DeWINE ( ) Ohio Attorney General RENATA Y. S FF (0086 ) Counsel of Record DAMIAN W. SIKORA ( ) Assistant Attorneys General Constitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, Ohio T: (614) ; F: (877) renata.staff@ohioattorneygeneral.gov damian.sikora@ohioattorneygeneral.gov Attorneys for Respondents 5

8 CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing Motion to Dismiss was served by regular U.S. mail, postage prepaid, on October 21, 2011, upon the following: Claude Zonou # P.O. Box 7010 Chillicothe, Ohio Relator RENATA Y. STATF Assistant Attorney General 6

9 IN THE COURT OF APPEAI.S ( FIRST APPELLATE DISTRICT OF OHI ^ HAMILTON COUNTY, OHIO Plaintiff-Appellee, vs. CI.A.UDE ZONOU, Defendant-Appellant. ENTERF9 DEC APPEAL NOS. C-09o87o C-o9o903 TRIAL NO. B-o8o8884 We consider these consolidated appeals on the accelerated calendar. This judgment entry is not an opinion of the court.' Following a jury trial,2 defendant-appellant Claude Zonou appeals his conviction for felonious assault, in viotation of R.C. 29o3.zi(B)(1). Zonou had engaged in sexual conduct with T.E., an adult woman, without disclosing to her that he had tested positive as a carrier of HN, the virus that causes acquired immunodeficiency syndrome. Zonou tested positive for HIV on March 13, His physicians had warned him of the dangers of spreading the disease. Despite this knowledge, Zonou failed to inform T.E. of his HIV status and oontinued to have unprotected sexual conduct with her until May As part of a gynecological exam in August 2006, T.E. had been tested and found not to carry the virus, In April 2oo8, T.E., who testified that she had had no other sexual See S.Ct.R.Rep.Op. 3(A), App.R u.t(e), and I.oc.R We note that the trial court's "Judgment Entry: Sentence Incarceration" incorrectly states that Zonou had pleaded guilty to the charges. Neither party has challenged this error. EXHIBIT i41

10 OHIO FIRST DISTRICT COURT OF APPEALS partners during this period and that Zonou had not told her of his HIV status, tested positive for HIV. The trial court entered judgment on the jury's verdict of guilty and imposed a fouryear prison term with credit for time served. The court also informed Zonou, who is not a U.S. citizen, that federal authorities would likely deport him following the period of incarceration. In his first assignment of error, Zonou challenges the weight and sufficiency of the evidence adduced to support his conviction. Oue review of the entire rocord fails to persuade us that the jury, sitting as the trier of fact, blearl,y lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.s The state adduced ample evidence, including the testimony of the victim, her i doctor, and the physician who had treated Zonou's H i in 2007, to prove that Zonou, with full knowledge that he was HIV positive, had engaged in sexual conduct with T.E without disclosing his HIV status to her. Moreover, the recard reflects substantial, credible evidence from which the trier of fact could have reasonably concluded that all elemeints of the charged crime had been proved beyond a reasonable doubt.4 The assignment oferror is overruled. In his second assignment of error, Zonou argues that the trial court erred in limiting the scope of his cross-examination of T.E. In'her testimony, T.E. admitted that Zonou had impregnated her in 2005 and that she had terminated the pregnancy. Zonou conducted a thorough cross-examination of T.E. Out Ilf the hearing of the jury, Zonou sought permission to question T.E. about any other abortions that she may have had 3 See State v. Thmnpkins, 78 Ohio St.3d 380, 387, 1997-Ohio-'52, 678 N.E.zd 541; see, also, State u, PeHctss (1967), to Ohio St.2d 23o, 227 N,E.2d 212, paragraph'one of the syaabus. 4 See R,C, (S)(1); see, also, State v. Gonzalez, 154 Ohio App.3d 9, 2oo3-Ohio-4421, 796 N.E.2d rz,,ll69^; ^ a J cksqn,u. _ ^aginta (1979), 443 U.S. 307, 319, 99 S Ct 2781; State v. Conway, 108 OhSoSbgd2xq-2^oo6-0hia 9r, 842 N,$.2d 996,1136, Z ` OEC-32O10 I

11 k OHIO FIRST DISTRICT COURT OF APPEALS during the period of her relationship with Zonou in an attempt to contradict her testimony that Zonou had been her only sexual partner, and io "undermine her credibility." The trial court Hniited any questioning to the period specified in the indictment-from the date Zonou leamed that he was HIV positive to May 2bo8. Zonou chose not to question T.E. further. "The scope of cross-examination and the admissibility of evidence during crossexamination are matters which rest in the sound discretion of the trial judge."s Here, I the jury had no need to know whether T.E. had had other sexual partners or even if she had ultimately "developed HIV, experienced emotional distress, or suffered any consequences from the sexual encounter. * * * As soon as the sexual conduct occurred without disclosure, the crime [had been] committed."6 Thus the trial court did not abuse its sound discretion in limiting the scope of cross-examination.7 The assignment is overruled. Therefore, the judgment of the trial court is affirmed. Further, a certified copy of this judgment entry shall constitute the mandate, which shall be sent to the trial court under App.R. 27. Coits shall be taxed under App.R. 24. CUNNINGHAM, P.J., HILDESRANDT and SUNf ERMANN, JJ. To the Clerk: Enter upon the Journal of the Court on December 3, 2oi0 per order of the Cou sstate v. Lundgren, 73 Ohio St.3d 474, 487, 7995 Ohio 227; 653 N.E.2d 304, citing O'Brien v. Angley (i9so), 63 Ohio St.2d 159,163,407 N.E.2d 490; see, also! Evid.R 611(A). tate v. nza ez at 597: t See T!Id'R:6i(Ek)(gp-see, also, AAAA Enterprises, Inc. v. River P1ace Community Urban Red ^el^dpli^ieqt Corp (^gg^uo) ^o Ohio St.3d 157,161, 5,53IN.E.2d 597. U1 DEC

12 IN THE COURT OF APPEALS FIRST APPELI.ATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO STATE OF OHIO, APPEAL NO. C-o9o870 C-o9o903 TRIAL NO. B-o8o8884 Appellee, vs. ENTRY OVERRULING APPLICATION FOR RECONSIDERATION CLAUDEZONOU, Appellant. ENTERED SEP This cause came on to be considered upon the pro se application for reconsideration. The Court finds that the application is not well taken and is overruled. See App.R ii(e). I To The Clerk: nter upou the Journ-al o7f-ffie Court on SPP-2 0-2oil-per o;-eler ofthe Court. By: Presiding Judge (Copies sent to all counsel)