IN THE SUPREME COURT OF OHIO NOTICE OF APPEAL OF APPELLANT ANDREW BEVINS JR.

Transcription

1 IN THE SUPREME COURT OF OHIO STATE OF OHIO EX RF'L. ANDREti^ BEVINS JR. VS Appellant JUDOE ETHNA M. COOPER COJ'Zt T OF COMNION PLEAS HAMILTON COUNTY, OHIO CINCINNATI, OHIO AppaLl_ee CASE NO. TRIAL NOo B APPFA.L NO. C ON APPEAL FROM THE FIRST DISTRICT COURT OF APPEALS OF HAMILTON COUNTY, OHIO PETITION N0. C NOTICE OF APPEAL OF APPELLANT ANDREW BEVINS JR. ANDREW BEVINS JR MA.C.I. P.O. BOX 740 LONIDON, OHIO (PRO SE APPELLANT) JOSEPH T. DETERS PROSFCUTING ATTORNEY HAMILTON COUNTY, OHIO 230 EAST NINTH STREET, SUITF 4000, CINCINNATI, OHIO (COUNSEL FOR APPELLL'F').. :.... ^ t. ^.i... p J., 4j. r.^ i, J 1;11#_. ^ 2? U _.".. ^a>4^ ^ar"k^t tj9 4 '^ HJ'') ^'F P^d 5k Y a g^ "3 B

2 NOTICE (JF APPEAL OF APPELLANT ANDREL1 BFVINS JR. Appellant, Andrew Bevins Jr, hereby give notice of appeal to the Supreme Court of Ohio from the Entry Dismissing Petition For Writ Of Prohibition And/Or Mandamus from the Fi rst District Cot2 rt of Appeals, Hamilton County Ohio, entered in Petition No. C on the day :a;e This case orignated in the court of appeals. L'hi.s case involves felonies. RESPECTFULLY SUBMITTED CERTIFICATE OF SERVICE A t,t^ ANDREG7 REt7z S JR '^1A.C,I. P.O. BOX 740 LONDON, OHIO AppeZlarrt certify that a copy of this Notice Of Appeal was sent by regular U.S. mail to the Hamilton County Prosecutor's office at 230 East 9th Street, Suite 4000, Cincinnati, Ohio 45202, on the q'lh, day of ^t, 201,_j...; ANDR^^,rJ 73E'VII^T JR. ^i

3 IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO STATE EX R..EL. ANDREW BEVINS,. APPEAL NO. C-13o276 vs. Relator, ETHNA COOPER, JUDGE, HAMILTON COUNTY COURT OF COMMON PLEAS,. EN T R Y D I,S 1 V. II S S I N G 1'E. T I I'I O N FO: R WR I'T OF PR O HIB. ITIO_N AIVD/OR MANDAMUS. Respondent. We consider this cause upon Relator Andrew Bevins's "Petition for Writ of Prohibition and/or Mandamus," upon the motion of Respondent Judge Ethna Cooper to dismiss the petition, and upon Bevins's reply. Bevins was tried in 2003 on charges of aggravated burglary and rape. The trial ended in a mistrial due to a hung jury. In 2005, Judge Cooper presided over Bevins's retrial and convicted him upon jury verdicts finding him guilty of the charges. In Bevins's direct appeal from his 2005 convictions, this court remanded the case for resentencing, but confirmed his convictions in all other respects. State v. Bevins, 1st Dist. No. C-o6o754, 2oo6-Ohio Bevins thereafter unsuccessfully challenged his convictions in an appeal to the Ohio Supreme Court, State v. Bevins, 117 Ohio St.3d 1437, 2008-Ohio-1279, 883 N.E.2d 456 (denying leave to file a delayed appeal), and in a series of postconviction motions. Here, Bevins asks this court to issue a writ ordering "either immediate release or a new trial" on the aggravated-burglary and rape charges. He argues that his 2005 retrial was "jurisdictionally unauthorized," because the trial court had discharged the

4 jury in his 2003 trial without complying with R.C s requirement that the court enter "[t]he reason for such discharge ##* on the journal." The protection against multiple prosecutions for the same offense afforded by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution confers upon a criminal defendant the right to have his trial completed by a particular tribunal. When a mistrial has been declared over the defendant's objection, the Double Jeopardy Clause bars a retrial unless the state can demonstrate a "manifest necessity" for the mistrial. State v. Gunnell, 132 Ohio St,3d 442, Ohio-3236, 973 N.E.2d 243, 1125, citing Oregon v. Kennedy, 456 U.S. 667, , 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982); Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); United States v. Perez, 22 U.S. (g Wheat.) 579 (1824). For purposes of the Double Jeopardy Clause, a "hung jury remains the prototypical example" of the "manifest necessity" justifying a mistrial. Kennedy at 672. Thus, R.C (B) provides that a "trial court may discharge a jury without prejudice to the prosecution" A,,hen "there is no probability of such jurors agreeing." In declaring a mistrial in.eevins's 2003 trial, the trial court did not, as required by R.C , journalize its reason for the mistrial. But Bevins, by failing to raise this matter before his 2005 trial, waived all but plain error. See Crim.R. 12(C)(1) and (H). And the trial court's omission cannot be said to have constituted plain error, when the record shows that the mistrial was due to a hung juzy, Bevins, xst Dist. No. C-o50754, 2oo6-Ohio-6974, at 62, and thus demonstrates a manifest necessity for discharging the jury. See Hines v. State, 24 Ohio St. 134, 1873 Ohio LEXIS 103 (1873), paragraphs one and two of the syllabus (holding that discharge of a jury without defendant's consent is an acquittal unless "the record * * * show[s]" "such necessity as the law requires as imperative"); accord State v. Green, 7th Dist. No. 12 MA 105, 2013-Ohio-893 (Mar. 8, 2013), T (holding that the failure to journalize the reason for a mistrial as required by R.C is not prejudicial when the reasons are expressed in the record, and that because the omission can be

5 nonprejudicial, it is not jurisdictional); State v. Morgan, 129 Ohio ApP.3d 838, 842, 719 N.E.2d 102 (8th Dist.1998); State v. Gruetter, 6th Dist. No. WD-84-38, 1984 Ohio App. LEXIS (Nov. 9, 1984); State v. Castleberry, loth Dist. No. 92AP- 336, 1993 Ohio App. LEXIS 1729 (Mar. 25, 1993); State v. Bell, 12th Dist. No. CA , 2001 Ohio App. LEXIS 1915 (Apr. 30, 2001); State v. Workman, 6o Ohio App.2d 204, 209, 396 N.E.2d 777 (3d Dist.1977). Moreover, this court is without authority to issue the writ sought here. Bevins had available to him an adequate legal remedy by means of a Crim.R. 12(C)(1) motion filed before his 2005 retrial, the direct appeal from his 2005 conviction, or a petition pursuant to R.C et seq. for postconviction relief. See R.C (providing that "[flhe writ of mandamus must not be issued when there is plain and adequate remedy in the ordinary course of the law"); State ex rel. Sibarco Corp. v. Berea, 7 Ohio St.2d 85, 218 N.E.2d 428 (1966), paragraph one of the syllabus (confirming the statutory proscription on the issuance of a writ of mandamus); State ex rel. McKee v. Cooper, 40 Ohio St.2d 65, 32o N.E.2d 286 (1974), paragraph one of the syllabus (holding that, for a writ of prohibition to issue, "it must appear that the refusal of the writ would result in injury for tivrhich there is no other adequate remedy in the ordinary course of the law"). And the fact that these remedies are no longer available to him due to his failure to timely avail himself of them does not render them inadequate. State ex rel. Cartmell v. Dorrian, ii Ohio St.3d 177, 178, 464 N.E.2d 556 (1984). The court, therefore, finds that the state's motion to dismiss Bevins's "Petition for Writ of Prohibition and/or Mandamus" is well taken. Accordingly, the court dismisses the petition. To the clerk: E e u o the ourt's journal JUL ` per order of the court. By: (Copies sent to all counsel) Presiding Judge