IN THE SUPREME COURT OF OHIO STATE OF OHIO ex rel. SHURMALE GARNER, Relator, CASE NO. 2008-1663 Original Action in Mandamus V. JUDGES, 11T" DISTRICT COURT OF APPEAL, Respondents. MOTION TO DISMISS AMENDED COMPLAINT SHURMALE GARNER PRO SE 501 Thompson Road. Conneaut, Ohio 44030 RELATOR, SHURMALE GARNER CHARLES E. COULSON (0008667) LAKE COUNTY PROSECUTING ATTORNEY LAKE COUNTY, OHIO JOSHUA S. HORACEK ( 0080574) (COUNSEL OF RECOR ASSISTANT PROSECUTING ATTORNEY Administration Building 105 Main Street, P.O. Box 490 Painesville, Ohio 44077 (440) 350-2683 Fax (440) 350-2585 jhoracek@lakecountyohio.gov COUNSEL FOR RESPONDENTS, JUDGES, 1 1T" DISTRICT COURT OF APPEAL
Now comes the Respondents, the Judges of the Eleventh District Court of Appeals, by and through Charles E. Coulson, Lake County Prosecuting Attorney, and Joshua S. Horacek, Assistant Prosecuting Attorney, and respectfully request Relator's Amended Complaintfor a Writ of Mandamus be dismissed to S.Ct.Prac.R. X(5) and Civ.R. 12(B)(6). A Memorandum in support of this Motion is attached hereto and incorporated herein by reference. MEMORANDUM Statement of Facts On August 20, 2008, Shurmale Garner (Relator) filed a complaint for a writ of mandamus in this Court against the Judges of the Eleventh District Court of Appeals (Respondents). Respondents replied with a motion to dismiss, filed on September 10, 2008. Relator responded with a memorandum opposing the motion to dismiss and an amended complaint, both filed on September 22, 2008. Relator's amended complaint did not restate the previous complaint but merely sought to add an additional claim. Respondents now move this Court to dismiss Relator's amended complaint for a writ of mandamus. Respondents stand on their previously filed motion to dismiss in regards to issues raised in Relator's original complaint and adopt that motion as if fully rewritten herein. Law and Argument Respondents understand Relator to be amending his complaint to require Respondents vacate the denial of his pro se motion to file a supplemental brief. But Relator's new claim still fails to meet the requirements for mandamus. To be entitled to a
writ of mandamus in this regard, Relator must establish three requirements: 1) a clear legal right to have the Court of Appeals vacate its decision; 2) a clear legal duty on the part of the Court of Appeals to vacate its decision; and 3) the lack of an adequate remedy in the ordinary course of law. State ex ret. Lorain v. Stewart, Slip Opinion No. 2008-Ohio-4062, at 12. In a mandamus action, a Civ.R. 12(B)(6) motion to dismiss is made to "ascertain whether the complaint alleges the existence of [a clear] legal duty and the want of an adequate remedy at law -the conditions for the writ to issue- with sufficient particularity so that the respondent is given reasonable notice of the claim asserted." State ex rel. Birdsall v. Stephenson (1994), 68 Ohio St.3d 353, 355, 626 N.E.2d 946 (internal quotations omitted). "In order to dismiss a complaint for a writ under Civ.R. 12(B)(6), failure to state a claim upon which relief can be granted, it must appear beyond doubt from the complaint, after presuming the truth of all material factual allegations and making all reasonable inferences in relator's favor, that the relator can prove no set of facts warranting extraordinary relief." State ex ret. Longacre v. Penton Publishing Co. (1997), 77 Ohio St.3d 266, 267, 673 N.E.2d 1297. Civ.R. 12(B) provides: *** When a motion to dismiss for failure to state a claim upon which relief can be granted presented matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. This Court, however, has long held that courts may take judicial notice of appropriate matters in determining a Civ.R. 12(B)(6) motion without converting it to a motion for summary judgment. State ex rel. Findlay Publishing Company v. Schroeder (1996), 76 Ohio St.3d 580, 581 669 N.E.2d 835, 837; citing State ex rel. Neff v. Corrigan (1996), 75 3
Ohio St.3d 12, 16, 661 N.E.2d 170, 174 and Hughes v. Butler County Board of Revision (1944), 143 Ohio St., 559, 560, 56 N.E.2d 63, 64. In this case, Relator has failed to establish any of the requirements for a writ of mandamus, and his amended complaint should be dismissed. A. Relator did not have a clear legal right to file a supplemental brief in his appeal. Relator did not have a right to file a supplemental brief in his appeal. Relator's claims notwithstanding, he is not endowed with the right to file a supplemental brief simply because he is the defendant in a direct appeal. In Relator's direct appeal, he was appointed counsel to represent him, and that counsel filed a merit brief on his behalf in that appeal. This Court has noted that "[a] defendant has no right to a'hybrid' form of representation wherein he is represented by counsel, but also acts simultaneously as his own counsel." State v. Keenan (1998), 81 Ohio St.3d 133, 138, 689 N.E.2d 929, citing McKaskle v. Wiggins (1984), 46.5 U.S. 168, 183, 104 S.Ct. 944, 79 L.Ed.2d 122. In fact, a defendant "has no constitutional right to self-representation in the appellate process on direct appeal." State v. Ferguson, 108 Ohio St.3d 451, 2006-Ohio-1502, 844 N.E.2d 806, at 97, citing Martinez v. California CourtofAppeal, Fourth Appellate Dist. (2000), 528 U.S. 152, 163, 120 S.Ct. 684, 145 L.Ed.2d 597. Hence, Relator has notestablished, and cannot establish, a clear legal right to file a supplemental brief in his direct appeal. This Court, relying on United States Supreme Court precedence, has explicitly denied the right to selfrepresentation on direct appeal.
B. The Count of Appeals is under no clear legal duty to consider Relator's pro se brief. The Rules of Appellate Procedure allow an appellant to file a merit brief as well as a brief in reply to the brief of the appellee. App.R. 16(A)-(C). But, an appellant may only file an additional brief with the leave of the court. Id. Accordingly, the Rules of Appellate Procedure do not allow for the filing of an additional pro se brief absent prior leave of the appellant court, and an appellate court has discretion whether to address the arguments raised in such a brief. State v, Bryant (Dec. 4, 2001), 7th Dist. No. 99-CA-135. As this Court has stated, "When a court has discretion to act, its only duty is to exercise that discretion. A writ of mandamus will not lie to control judicial discretion, even if such discretion is abused." State ex rel. Keenan v. Calabrese (1994), 69 Ohio St.3d 176, 180, 631 N.E.2d 119 (internal citations omitted). Relator cannot use mandamus to compel the Court of Appeals to allow him to file a supplemental brief. The Court of Appeals considered Relator's motion for leave to file a supplemental brief and rejected it. Relator does not have a legal right to file a supplemental brief and, thus, cannot seek a writ of mandamus ordering the Court of Appeals to consider his supplemental brief. Relator had failed to show, and cannot show, that the Court of Appeals is under a clear legal duty to consider his pro se brief. C. Relator posseses an adequate remedy at law to address the Respondents' denial of leave to file a supplemental brief. Relator possesses at least two adequate remedies to review the denial of leave to file a supplemental brief. First, if the issues raised in this supplemental brief are, in fact, 5
meritorious, then he can apply for reopening pursuant to App.R. 26(B). Any decision on a application for reopening would be reviewable on a direct appeal of the decision. Next, the proper way to address the court's decision to deny Relator leave to file a supplemental brief would be a direct appeal of that decision. Both an application for reopening and a direct appeal may be time-barred at this point without a showing of good cause, but as this Court has noted, "The failure to avail himself of his legal remedy within the period limited by the statute providing such remedy does not confer upon the [Relator] the right to the extraordinary remedy of mandamus." State v. Zangerle (1933). 126 Ohio St. 118, 121, 184 N.E. 289, see also State ex rel Matheis v. Russo (1990), 50 Ohio St.3d 204, 205, 553 N.E.2d 653. Relator has several adequate remedies in the ordinary course of law and, thus, cannot seek mandamus on this issue. As such, Relator has not shown the lack of an adequate remedy in the ordinary course of law. Relator has failed to meet any of the requirements for mandamus, and his complaint for a writ of mandamus should be dismissed. 6
CONCLUSION In this case, Relator is not entitled to the extraordinary remedy of mandamus. A writ of mandamus cannot issue to control the discretion of the court as to whether to grant leave for Relator to file a supplemental brief. Moreover, Relator has no clear legal right to file a supplemental brief, Also, Relator has other adequate remedies in the ordinary course of law. WHEREFORE, Respondents, Judges of the Eleventh District Court of Appeals, respectfully request this Honorable Court enter an order dismissing Relator's complaintfor a writ of mandamus. Respectfully submitted, By: Charles E. Coulson (0008667) Prosecuting Attorney By: 'shua S. Horacek (0080574) Assistant Prosecuting Attorney Counsel of Record COUNSEL FOR RESPONDENTS, JUDGES, 11T" DISTRICT COURT OF APPEAL 7
PROOF OF SERVICE A copy of the foregoing Motion to Dismiss was sent by regular U.S. Mail, postage prepaid, to Shurmale Garner, Pro Se, Relator, this day of October. JSH oshua S. Horacek (0080574) Assistant Prosecuting Attorney COUNSEL FOR RESPONDENTS, JUDGES, 1 1TH DISTRICT COURT OF APPEAL 8