State ex rel. Noling v. Doherty

[Cite as State ex rel. Noling v. Doherty, 2026-Ohio-3702.] IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY STATE OF OHIO ex rel. CASE NO. 2026-P-0084 TYRONE NOLING, Relator, Original Action for Writ of Mandamus - vs - THE HONORABLE BECKY DOHERTY, Respondent. PER CURIAM OPINION AND JUDGMENT ENTRY Decided: September 22, 2026 Judgment: Complaint dismissed Brian C. Howe, The Ohio Innocence Project, University of Cincinnati College of Law, P.O. Box 210040, Cincinnati, OH 45221, Eamon P. Joyce, Sidley Austin, L.L.P., 787 7th Avenue, New York, NY 10019, and Daniel Nadratowski, Weil, Gotshal & Manges, L.L.P., 2001 M Street NW, Suite 600, Washington, DC 20036 (For Relator). Connie J. Lewandowski, Portage County Prosecutor, and Timothy P. Bogner, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Respondent). PER CURIAM. {¶1} Pending before this court is relator, Tyrone Noling’s, Complaint for an Emergency Writ of Mandamus, filed on September 18, 2026. Respondent, Judge Becky Doherty, filed a Motion to Dismiss on September 21, 2026. On September 22, 2026, Noling filed a Memorandum of Law in Support of his Opposition to Respondent’s Motion to Dismiss, and Judge Doherty filed a Motion to Dismiss with Amended Memorandum in Support. The Requirements for Mandamus {¶2} “To be entitled to a writ of mandamus, the relator must establish, by clear and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the respondent to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law.” State ex rel. Martre v. Reed, 2020-Ohio-4777, ¶ 8. {¶3} “For a court to dismiss a mandamus complaint pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted, it must appear beyond doubt from the complaint that the relator can prove no set of facts warranting relief, after all factual allegations of the complaint are presumed true and all reasonable inferences are made in the relator’s favor.” Id. The Complaint for an Emergency Writ of Mandamus {¶4} The premise of the action, according to the Complaint, is as follows: Noling is currently an inmate at the Ross Correctional Institution in Chillicothe, Ohio. Judge Doherty is a judge of the Court of Common Pleas for Portage County, Ohio. Pending before Judge Doherty is, inter alia, a supplemental application for leave to file a motion for new trial and a motion for new trial filed on August 12, 2025. 15. On March 2, 2026, the trial court ordered an oral evidentiary hearing on the motion, and the hearing was set for September 23- 25, 2026. 16. On September 4, 2026, counsel for Mr. Noling filed a motion to convey Mr. Noling to the Court of Common Pleas for the hearing. The motion was denied on September 17, 2026, just one week before the hearing is set to take place. 17. Mr. Noling has no adequate remedy at law to compel the relief he seeks and to which he is entitled: his physical presence at an oral hearing in which witnesses will testify and evidence will be admitted pertaining to the constitutional protections Mr. Noling was denied during his trial. PAGE 2 OF 7 Case No. 2026-P-0084 The Motion to Dismiss {¶5} As grounds for dismissal, Judge Doherty argues that Noling failed to comply with R.C. 2969.25(A) and failed to establish a clear legal right to the requested relief, i.e., a clear legal right to be physically present for an evidentiary hearing on a Criminal Rule 33 motion for new trial. R.C. 2969.25(A) {¶6} “At the time that an inmate commences a civil action or appeal against a government entity or employee, the inmate shall file with the court an affidavit that contains a description of each civil action or appeal of a civil action that the inmate has filed in the previous five years in any state or federal court.” R.C. 2969.25(A). “R.C. 2969.25 is mandatory and requires strict compliance.” State ex rel. Bates v. Copley, 2026-Ohio-1270, ¶ 6. “A court may sua sponte dismiss an action for noncompliance with R.C. 2969.25(A).” Id. {¶7} However, “[t]he plain language of the statute includes no requirement that inmates who have not filed a civil action or appeal of a civil action against a government entity or employee in the requisite five-year period file this affidavit.” State ex rel. Wickensimer v. Bartleson, 2009-Ohio-4695, ¶ 3. “Similarly, the statute does not require a statement that the inmate has filed no such civil action or appeal.” State ex rel. Walker v. Ballinger, 2024-Ohio-181, ¶ 9. {¶8} Attached to Noling’s Complaint in the present case is the affidavit of one of his attorneys, Brian Howe. Therein it is averred that “Mr. Noling has not filed any civil actions or appeals of civil actions against a government entity or government employee in the previous five years in any state or federal court.” Howe’s assertion has not been PAGE 3 OF 7 Case No. 2026-P-0084 challenged. Accordingly, Noling’s Complaint is not subject to dismissal for failure to comply with R.C. 2969.25(A). A Clear Legal Right to the Requested Relief {¶9} Ohio’s Rules of Criminal Procedure provide “the defendant must be physically present at every stage of the criminal proceeding and trial, including the impaneling of the jury, the return of the verdict, and the imposition of sentence.” Crim.R. 43(A)(1); Ohio Const., art. I, § 10 (“[i]n any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel”). {¶10} The appellate decisions of which this Court is aware have concluded that a hearing on a motion for new trial does not constitute a stage of the criminal proceeding such that the defendant must be physically present. The Eighth Appellate District in State v. Gilbert, 2018-Ohio-3789 (8th Dist.), has assembled the relevant authority on this issue: “The express language of Crim.R. 43[, however,] does not require defendant’s presence at a hearing on a new trial motion. Further, the general rule is that the defendant’s presence is not necessary at such a hearing.” State v. Padavick, 8th Dist. Cuyahoga No. 53343, 1988 Ohio App. LEXIS 528, 35 (Feb. 18, 1988); see also State v. Irwin, 184 Ohio App.3d 764, 2009-Ohio-5271, 922 N.E.2d 981, ¶ 71 (7th Dist.) (“Crim.R. 43 does not provide that a defendant has a right to be present at a motion for new trial hearing. * * * Thus, appellant had no right to be present at his new trial motion hearing.”); Cureton, 9th Dist. Medina Nos. 03CA0009-M and 03CA0010-M, 2003-Ohio- 6010, at ¶ 32 (“Cureton has presented no authority that states his right to confront witnesses extends to a Crim.R. 33 hearing on a motion for a new trial.”); State v. Prichard, 1st Dist. Hamilton No. C- 990148, 1999 Ohio App. LEXIS 5786, 11 (Nov. 26, 1999) (“Although Crim.R. 43 requires the defendant to be present at ‘every stage of the trial,’ it has been held that proceedings held in conjunction with a motion for a new trial do not constitute a stage of a trial.”). Id. at ¶ 16. {¶11} Noling cites no authority that holds otherwise. PAGE 4 OF 7 Case No. 2026-P-0084  {¶12} Noling does cite authority in postconviction proceedings which holds that petitioner’s presence at the hearing is mandatory. State v. Williams, 1998 WL 964576, *6-7 (11th Dist.); State v. Nivens, 1999 WL 1072437, *2 (10th Dist.). Such authority is unavailing inasmuch as it relies on the express statutory provision that, “[i]f a hearing is granted [on a postconviction petition], the petitioner shall be permitted to attend the hearing.” R.C. 2953.22. {¶13} Noling also relies on the claim that “courts … long have routinely ordered defendants be conveyed for oral evidentiary hearings on motions for new trial,” including “Mr. Noling himself … for prior hearings in the matter against him.” Memorandum of Law in Support of Complaint for Writ of Mandamus at 4-5. {¶14} Finally, Noling invokes due process to argue that his physical presence at the hearing is “necessary for him to ascertain critical testimony and evidence” and “defend his wrongful conviction in a fulsome manner.” Memorandum at 7. {¶15} At most, Noling’s authority and arguments establish that a trial court which holds a hearing on a motion for new trial has the discretion to allow the defendant to be physically present, not that it is absolutely required in any given circumstances. That being so, he cannot demonstrate a clear legal right to the requested relief. {¶16} It is well-established that a writ of mandamus will not issue “to control the exercise of judicial discretion, even if that discretion has been abused.” State ex rel. Conomy v. Rohrer, 2025-Ohio-5296, ¶ 24; State ex rel. Woods v. Heekin, 2024-Ohio- 1719, ¶ 10; State ex rel. Conomy v. Fuller, 2025-Ohio-4411, ¶ 18 (mandamus may not be sought to compel a judge “to make a particular ruling”). Assuming, arguendo, that denying Noling the opportunity to be physically present at the hearing constitutes an abuse of PAGE 5 OF 7 Case No. 2026-P-0084 discretion or an infringement of his due process rights, an adequate remedy at law exists by way of appeal. State ex rel. Tentman v. Sundermann, 2025-Ohio-1284, ¶ 25 (“[a]n appeal is a plain and adequate remedy in the ordinary course of law”). {¶17} For the foregoing reasons, Judge Doherty’s Motion to Dismiss is granted and Noling’s Complaint for an Emergency Writ of Mandamus is dismissed. MATT LYNCH, P.J., JOHN J. EKLUND, J., SCOTT LYNCH, J., concur. PAGE 6 OF 7 Case No. 2026-P-0084  JUDGMENT ENTRY For the reasons stated in the Per Curiam Opinion of this court, respondent’s Motion to Dismiss is granted. Relator’s Complaint for an Emergency Writ of Mandamus is hereby dismissed. Costs to be taxed against relator. PRESIDING JUDGE MATT LYNCH, concurs JUDGE JOHN J. EKLUND, concurs JUDGE SCOTT LYNCH, concurs THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY A certified copy of this opinion and judgment entry shall constitute the mandate pursuant to Rule 27 of the Ohio Rules of Appellate Procedure. PAGE 7 OF 7 Case No. 2026-P-0084