State ex rel. Graham v. Sweeney

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[Cite as State ex rel. Graham v. Sweeney, 2023-Ohio-4518.] IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY STATE OF OHIO, EX REL. ISRAEL J. GRAHAM, Relator, v. JUDGE MAUREEN A. SWEENEY, Respondent. OPINION AND JUDGMENT ENTRY Case No. 23 MA 0059 Petition for Writ of Procedendo BEFORE: Cheryl L. Waite, David A. D’Apolito, Mark A. Hanni, Judges. JUDGMENT: Dismissed. Israel J. Graham, Relator Atty. Gina DeGenova, Mahoning County Prosecutor and Atty. Edward A. Czopur, Assistant Prosecutor, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Respondent Dated: December 7, 2023 –2– PER CURIAM. {¶1} Relator Israel J. Graham has filed this pro se original action seeking a writ of procedendo to compel Respondent, the Honorable Maureen A. Sweeney, Mahoning County Common Pleas Court Judge, to proceed to trial on his charge of having weapons under disability. Respondent, who dismissed the charge following the state’s motion, has filed a Civ.R. 12(B)(6) motion to dismiss on the basis that this action is moot. She is correct, and Relator’s complaint/petition is dismissed. {¶2} A Mahoning County Common Pleas Court jury found Relator guilty of aggravated robbery, three counts of kidnapping, and safecracking. The judge determined he was guilty of having a weapon while under disability. Relator raised numerous arguments on direct appeal to this Court, including the absence of a valid jury waiver for his conviction for having a weapon while under disability. The state conceded the error, acknowledging that Relator did not sign, file, or voice a jury waiver in open court. We reversed and vacated his conviction for having a weapon while under disability and remanded that charge for further proceedings. We affirmed Relator’s other convictions after overruling his arguments regarding accomplice instruction, sufficiency of the evidence, weight of the evidence, effectiveness of trial counsel, and merger before sentencing. State v. Graham, 7th Dist. Mahoning No. 21 MA 0060, 2022-Ohio-4752 (Graham I). {¶3} Relator filed a timely application to reopen the appeal, arguing he was denied a fair trial because a detective and the prosecutor improperly vouched for his alleged accomplice’s credibility and bolstered certain testimony. Relator also claimed his Case No. 23 MA 0059 –3– constitutional right to confrontation of witnesses was infringed by the admission of hearsay testimony regarding phone records that were never authenticated. We denied the application, concluding Relator failed to raise a “genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal” as required by App.R. 26(B)(5). State v. Graham, 7th Dist. Mahoning No. 21 MA 0060, 2023-Ohio-1453 (Graham II). {¶4} We turn now to Relator’s Complaint/Petition for a Writ of Procedendo, which is the subject of this original action. A writ of procedendo will issue when a court has refused to enter judgment or has unnecessarily delayed proceeding to judgment. State ex rel. Culgan v. Collier, 135 Ohio St.3d 436, 2013-Ohio-1762, 988 N.E.2d 564, ¶ 7. To be entitled to a writ of procedendo, a party must establish (1) a clear legal right to require the trial court to proceed, (2) a clear legal duty on the part of the trial court to proceed, and (3) the absence of an adequate remedy in the ordinary course of the law. State ex rel. Ames v. Pokorny, 164 Ohio St.3d 538, 2021-Ohio-2070, 173 N.E.3d 1208, ¶ 6. {¶5} As indicated, this Court reversed and vacated Relator’s conviction for having a weapon while under disability. Graham I. On remand to Respondent’s court, the state filed a motion to dismiss this charge. Respondent granted the motion and dismissed the charge. {¶6} Relator incorrectly insists that he is entitled as a matter of law to have Respondent proceed to trial on this charge. Pursuant to R.C. 2505.39, and consistent with App.R. 27, when an appellate court “reverses or affirms a final order, judgment or decree of a lower court on questions of law,” the court “shall not issue execution, but shall send a special mandate to the lower court for execution or further proceedings.” Case No. 23 MA 0059 –4– (Emphasis added.) State v. Lewis, 99 Ohio St.3d 97, 2003-Ohio-2476, 789 N.E.2d 195, ¶ 28; App.R. 27 (court of appeals may remand to the lower court for specific or general execution or for further proceedings). In Graham I, we did not include a special mandate that the trial court proceed to trial. Instead, we directed that “Appellant’s conviction for having a weapon while under disability is reversed with this charge remanded for further proceedings.” Graham I at ¶ 28. {¶7} When a court of appeals reverses a decision and sends the case back to the court of common pleas for further proceedings, it reinstates the cause to the court of common pleas in statu quo ante, its original state. Armstrong v. Marathon Oil Co., 32 Ohio St.3d 397, 418, 513 N.E.2d 776 (1987). This means the case is placed back on the lower court’s docket in the exact condition in which it existed prior to the appeal and subsequent reversal. Id. In this instance, the trial court possessed the same authority and discretion over the charge as it originally had, meaning it was equally free to proceed with trial or entertain the state’s motion to dismiss. {¶8} Because the trial court chose the latter option and dismissed the charge, the proceedings regarding this charge are at a close. Hence, Relator’s original action for a writ of procedendo before this Court has been rendered moot. State ex rel. Baur v. Brooklyn Mun. Court, 8th Dist. Cuyahoga No. 80785, 2002-Ohio-1262 (defendant’s procedendo action to compel trial court to proceed to judgment rendered moot by state’s dismissal of charge). {¶9} In consideration of the foregoing, IT IS ORDERED that Respondent’s motion to dismiss is hereby GRANTED, and this original action in procedendo is hereby Case No. 23 MA 0059 –5– DISMISSED. Relator’s Motion to Strike Respondents’ Combined Answer and Motion to Dismiss/Judgment on the Pleadings is DENIED. Writ denied. {¶10} IT IS FURTHER ORDERED by the Court, pursuant to Civ.R. 58, that the Clerk of the Mahoning County Court of Appeals shall immediately serve upon all parties (including unrepresented or self-represented parties) notice of this judgment and its date of entry upon the journal. Costs assessed to Relator. JUDGE CHERYL L. WAITE JUDGE DAVID A. D’APOLITO JUDGE MARK A. HANNI Case No. 23 MA 0059

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