State ex rel. Parker v. Russo (Slip Opinions)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Parker v. Russo, Slip Opinion No. 

.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 

   THE STATE EX REL. PARKER, APPELLANT, v. RUSSO, JUDGE, APPELLEE.
           PARKER BEY, APPELLANT, v. HARRIS, WARDEN,1 APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
          may be cited as State ex rel. Parker v. Russo, Slip Opinion No.
                                     

.]
Mandamus—Habeas corpus—Appellant had adequate remedy at law by way of
        appeal—Appellant’s habeas arguments not cognizable in habeas corpus—
        Court of appeals’ judgments denying writ and dismissing complaint
        affirmed.
(Nos. 2019-0032 and 2019-0108—Submitted July 9, 2019—Decided October 30,
                                            2019.)
      APPEAL from the Court of Appeals for Cuyahoga County, No. 107686,
                                      

.
   APPEAL from the Court of Appeals for Trumbull County, No. 2018-T-0090,


1. Brandeshawn Harris is now the warden of the Trumbull Correctional Institution and is
automatically substituted as appellee in this case. S.Ct.Prac.R. 4.06(B).
                             SUPREME COURT OF OHIO




                                 

.
                                ________________
       Per Curiam.
       {¶ 1} These two appeals, which we consolidate for decision, arise out of the
same underlying criminal case. In case No. 2019-0032, appellant, Vincent A.
Parker, a.k.a. Vincent El Alan Parker Bey, appeals the denial of his requested writ
of mandamus. And in case No. 2019-108, he appeals the dismissal of his complaint
for a writ of habeas corpus. We affirm both judgments.
                     CRIMINAL-CASE BACKGROUND
       {¶ 2} In January 2003, Parker pleaded guilty to murder before a three-judge
panel. However, the sentencing entry incorrectly stated that Parker had pleaded
guilty to aggravated murder. Parker appealed on March 3, 2003. On April 30,
2003, while Parker’s appeal was pending, the presiding judge, appellee Judge
Nancy Russo, journalized a nunc pro tunc sentencing entry to clarify that Parker
had pleaded guilty to murder, rather than aggravated murder. In 2004, the court of
appeals affirmed Parker’s murder conviction and sentence. State v. Parker, 8th
Dist. Cuyahoga No. 82687, 

.
                        Mandamus Case (No. 2019-0032)
                                Procedural History
       {¶ 3} In September 2018, Parker filed a complaint for a writ of mandamus
in the Eighth District Court of Appeals, claiming that the trial court lacked
jurisdiction to issue the 2003 nunc pro tunc entry while his direct appeal was
pending. He sought an order compelling the trial court to issue a new sentencing
entry. In December 2018, the court of appeals granted Judge Russo’s motion for
summary judgment, holding that Parker’s claim was barred by res judicata and that
he had an adequate remedy at law. State ex rel. Parker v. Russo, 

,
¶ 5. Parker filed a timely appeal.




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                                       Analysis
       {¶ 4} To be entitled to a writ of mandamus, Parker was required to show (1)
a clear legal right to the requested relief, (2) a clear legal duty on Judge Russo’s
part to provide it, and (3) the lack of an adequate remedy in the ordinary course of
the law. State ex rel. Waters v. Spaeth, 

, 

, 

, ¶ 6.
       {¶ 5} “Summary judgment is appropriate when an examination of all
relevant materials filed in the action reveals that ‘there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of
law.’ ” Smith v. McBride, 

, 

, 

,
¶ 12, quoting Civ.R. 56(C). We review a decision granting summary judgment de
novo. 

       {¶ 6} On appeal, Parker seeks reversal of the court of appeals’ decision
granting summary judgment.
                              Compliance with Civ.R. 56
       {¶ 7} Parker claims that the court of appeals erred in granting summary
judgment without giving notice of a non-oral-hearing date and because it relied on
evidence that did not comport with Civ.R. 56.
       {¶ 8} Parker’s notice argument fails because he is apparently relying on a
former version of Civ.R. 56(C) that required that a motion for summary judgment
“be served at least fourteen days before the time fixed for hearing,” 

, xciii. Civ.R. 56(C) was amended in July 2015 to remove the reference to a
hearing. 

, cxvi (staff note). The current version of the rule permits
the court to grant a summary-judgment motion upon the completion of briefing and
does not require the court to hold an oral or non-oral hearing. Accordingly, this
argument is not well-taken.
       {¶ 9} Parker’s next argument—that the appeals court relied on improper
evidence to grant summary judgment—has merit, but it does not require reversal of




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the court of appeals’ judgment. In her motion for summary judgment, Judge Russo
argued that Parker’s arguments were barred by res judicata. In support, she attached
time-stamped copies of documents relating to Supreme Court case No. 2018-0147,
a prior mandamus action that Parker had filed in this court, including Parker’s
complaint, the respondent’s motion to dismiss, the respondent’s notice of judicial
action (with exhibits), Parker’s memorandum in opposition to the respondent’s
motion to dismiss, and this court’s announcement of the dismissal of the action.
Judge Russo did not attach an affidavit authenticating the attachments.
       {¶ 10} Because granting summary judgment under Civ.R. 56(C) terminates
litigation without a trial on the merits, “[t]he requirements of the rule must be
strictly enforced.” Murphy v. Reynoldsburg, 

, 

 (1992). Civ.R. 56(C) sets forth the types of evidence that may be considered
in granting a motion for summary judgment—namely, “pleadings, depositions,
answers to interrogatories, written admissions, affidavits, transcripts of evidence,
and written stipulations of fact.” When deciding a summary-judgment motion, it
is generally error for a court to rely on other types of evidence that has not been
authenticated by way of an attached affidavit. State ex rel. Boggs v. Springfield
Local School Dist. Bd. of Edn., 

, 

 (1995);
Rogoff v. King, 

, 

 (8th Dist.1993) (“The
proper procedure for the introduction of evidentiary matter not specifically
authorized by Civ.R. 56(C) is to incorporate the material by reference into a
properly framed affidavit”).
       {¶ 11} The only document relating to Supreme Court case No. 2018-0147
that Judge Russo attached to her summary-judgment motion and that is arguably a
type of evidence listed in Civ.R. 56(C) is Parker’s complaint; it is a “pleading”
under Civ.R. 7(A). In that complaint, Parker asserted the same claim that he asserts
in this case—that Judge Russo lacked jurisdiction to issue a nunc pro tunc entry
after his notice of appeal was filed. But a complaint alone does not prove that



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                                  January Term, 2019




Parker’s claim is barred, because res judicata requires a final judgment on the
merits. State ex rel. Jackson v. Ambrose, 

, 

, 

, ¶ 13. None of the other documents attached to Judge Russo’s
summary-judgment motion are incorporated by reference in an affidavit or certified
as required by Civ.R. 56(E). “An unauthenticated document, including uncertified
court records, may not support a motion for summary judgment.” Trebnick Sys.,
Inc. v. Chalmers, 12th Dist. Warren No. CA2012-10-097, 

;
accord Nicely v. Kline, 10th Dist. Franklin No. 05AP-825, 

.
Therefore, the court of appeals erred when it relied on the evidence attached to
Judge Russo’s motion to grant summary judgment based on res judicata.
          {¶ 12} Parker is not entitled to reversal on this basis, however, because he
possessed an adequate remedy at law to correct an entry that he claims does not
comply with Crim.R. 32(C). Parker admits that a “trial court has the jurisdiction to
correct [its] sentencing entries at any time pursuant to criminal rule 36.” Crim.R.
36 states that “[c]lerical mistakes in judgments, orders, or other parts of the record,
and errors in the record arising from oversight or omission, may be corrected by
the court at any time.” Parker even lists the ways that he has sought to correct the
sentencing entry, including filing motions for clarification, to impose a valid
sentence, and to issue a revised journal entry. But he also could have appealed the
denials of his various motions to correct the sentencing entry. See State ex rel.
Daniels v. Russo, 

, 

, 

(mandamus relief denied because the relator could have appealed the denial of his
motion for a new sentencing entry that complies with Crim.R. 32(C)); State ex rel.
Henley v. Langer, 

, 

, 

(same).
           Jurisdiction to issue a nunc pro tunc entry after appeal was filed
          {¶ 13} Parker contends that Judge Russo lacked jurisdiction to issue a nunc
pro tunc entry to correct a clerical mistake because Parker had already appealed.




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           {¶ 14} Crim.R. 32(C) requires that a judgment of conviction “set forth the
fact of conviction and the sentence.” “This court has consistently regarded Crim.R.
32(C) errors as clerical mistakes subject to nunc pro tunc correction.” State ex rel.
Snead v. Ferenc, 

, 

, 

. Here,
although Parker pleaded guilty to murder, his initial sentencing entry incorrectly
stated that he had been convicted of aggravated murder. Parker does not contend
that a trial court may not use a nunc pro tunc entry to correct this type of error.
           {¶ 15} Instead, Parker contends that Judge Russo lacked jurisdiction to
correct the clerical mistake because he had already appealed. We need not reach
that issue, because Parker had an adequate remedy at law to raise this argument in
his direct appeal, in which the court of appeals considered both the original
sentencing entry and the nunc pro tunc entry. See State v. Parker, 

.
                       Motion regarding certification of the record
           {¶ 16} Finally, Parker filed a motion claiming that the county clerk of courts
failed to submit a certified copy of the criminal appearance and docket. The record,
however, includes a signed certification, an index, and a copy of the docket.
Parker’s motion is denied.
                             Habeas Case (No. 2019-0108)
                                   Procedural History
           {¶ 17} In October 2018, Parker filed a complaint for a writ of habeas corpus
in the Eleventh District Court of Appeals, naming Charmaine Bracy, then warden
of the Trumbull Correctional Institution, as the respondent. Parker argued that the
three-judge panel lacked subject-matter jurisdiction to accept his guilty plea in 2003
because he never signed a written jury-waiver form. He maintained that he was
entitled to immediate release as a result.
           {¶ 18} The court of appeals granted Warden Bracy’s motion to dismiss over
Parker’s objections, holding that Parker’s claims were not cognizable because the



                                             6
                                January Term, 2019




only appropriate remedy for a trial court’s failure to require a written waiver of a
jury trial under R.C. 2945.05 is direct appeal. State ex rel. Parker Bey v. Bracy,

, ¶ 5. Parker appealed.
                                      Analysis
       {¶ 19} To be entitled to a writ of habeas corpus, a petitioner must show that
he is being unlawfully restrained of his liberty and that he is entitled to immediate
release from prison or confinement. R.C. 2725.01; State ex rel. Cannon v. Mohr,

, 

, 

. “A writ of habeas
corpus is generally ‘available only when the petitioner’s maximum sentence has
expired and he is being held unlawfully.’ ” Leyman v. Bradshaw, 

, 

, 

, quoting Heddleston v. Mack, 

, 

 (1998).
       {¶ 20} In his habeas complaint, Parker makes two arguments, neither of
which is cognizable in habeas corpus. First, he contends that the three-judge panel
lacked subject-matter jurisdiction because he did not waive a jury trial in writing in
open court as required by R.C. 2945.05. But, a jury-trial waiver claim is not
cognizable in habeas corpus. Kelley v. Wilson, 

, 2004-Ohio-
4883, 

, ¶ 7. “[A]ny failure to comply with R.C. 2945.05 may be
remedied only in a direct appeal from a criminal conviction and not by
extraordinary writ.” State ex rel. Billings v. Friedland, 

, 

 (2000).
       {¶ 21} Second, Parker argues that Judge Russo incorrectly informed him
that he would be permitted to raise a speedy-trial claim on appeal, even after
pleading guilty. Parker had an adequate remedy at law to raise this issue in a
petition for postconviction relief, a direct appeal, or a motion to withdraw his guilty
plea. E.g., State v. Ricks, 8th Dist. Cuyahoga No. 86634, 

(vacating guilty plea when the trial court had mistakenly advised the defendant that
his sentence would incorporate his parole violation). And habeas relief is not




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available when there is an adequate remedy in the ordinary course of the law.
Billiter v. Banks, 

, 

, 

.
Accordingly, the court of appeals correctly dismissed Parker’s habeas complaint.
                                                                 Judgments affirmed.
          O’CONNOR, C.J., and FRENCH, FISCHER, DONNELLY, and STEWART, JJ.,
concur.
          KENNEDY, J., concurring in judgment only in case No. 2019-0032 and
concurring in case No. 2019-0108, with an opinion joined by DEWINE, J.
                                 _________________
          KENNEDY, J., concurring in judgment only in case No. 2019-0032 and
concurring in case No. 2019-0108.
          {¶ 22} I join the majority opinion to the extent that it affirms the Eleventh
District Court of Appeals’ dismissal of the complaint for a writ of habeas corpus
filed by appellant, Vincent A. Parker, in case No. 2019-0108. And because the
Eighth District Court of Appeals correctly denied Parker a writ of mandamus to
compel Judge Nancy Russo to enter a sentence that complies with Crim.R. 32(C)
and R.C. 2505.02, I agree with the majority that the Eighth District’s judgment in
case No. 2019-0032 should be affirmed. I write separately, however, to explain
why I do not join the majority’s analysis in affirming the Eighth District’s
judgment.
          {¶ 23} In 1995, Parker pleaded guilty to aggravated murder and other
counts and was sentenced to 23 years to life in prison. The court of appeals vacated
his convictions because the indictment had included a death-penalty specification
and the trial court had not convened a three-judge panel to accept the plea, and this
court affirmed. State v. Parker, 

, 

, 

. On remand, Parker pleaded guilty to a single count of murder before a three-
judge panel in 2003, and he was sentenced to life in prison with the possibility of
parole after 15 years. The sentencing entry filed on February 3, 2003, erroneously



                                            8
                                January Term, 2019




indicated that Parker had pleaded guilty to aggravated murder, and after Parker filed
his notice of appeal, the trial court issued a corrected sentencing entry on April 30,
2003, indicating that he had pleaded guilty to murder. The court of appeals
affirmed his conviction and sentence in a decision stating that Parker pleaded guilty
to aggravated murder in 1995 and to murder on remand in 2003. State v. Parker,
8th Dist. Cuyahoga No. 82687, 

. We declined review. 

, 

, 

.
       {¶ 24} According to the affidavit attached to his complaint, Parker has
unsuccessfully challenged the validity of his sentence at least five times; the trial
court denied his “motion for clarification of journal entry” in 2003, his “motion to
impose valid sentence” in 2010, his “motion to issue a revised sentencing entry” in
February 2013, his “motion to issue a revised journal entry” in August 2013, and
his “motion for speedy trial and notice of availability for sentencing for count of
murder” in 2017. Parker swore that Judge Russo had “used the ‘purported’ entry”
from April 30, 2003, to deny him a sentencing entry that complies with Crim.R. 32.
And according to the certified copy of the docket from his criminal case, which is
attached to Parker’s memorandum in opposition to Judge Russo’s motion for a
summary judgment, his appeals of the first four decisions were dismissed and it is
not clear whether he attempted to appeal the fifth decision.
       {¶ 25} In September 2018, Parker filed a complaint for a writ of mandamus
in the Eighth District Court of Appeals to compel the trial court to issue a new
sentencing entry. The court of appeals granted Judge Russo’s motion for summary
judgment, holding that Parker’s claim is barred by res judicata because this court
had previously denied him the same relief and that he had an adequate remedy in
the ordinary course of the law by way of an appeal of the corrected sentencing entry.
State ex rel. Parker v. Russo, 

, ¶ 5.




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        {¶ 26} On appeal to this court, the majority holds that the court of appeals
erred in denying the writ on the basis of res judicata. Its analysis is faulty in two
ways.
        {¶ 27} First, it concludes that the complaint in a separate mandamus action
is “arguably” proper summary-judgment evidence because it is “a ‘pleading’ ” and
Civ.R. 56(C) permits a movant for summary judgment to rely on “the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts
of evidence, and written stipulations of fact, if any, timely filed in the action”
(emphasis added). However, a pleading filed in a separate case is not part of “the
pleadings * * * filed in the action”—i.e., the pleadings in the case at bar—and
standing alone, it is not proper summary-judgment evidence.
        {¶ 28} Second, contrary to the majority’s conclusion, Judge Russo’s failure
to authenticate evidence that this court has previously denied Parker the relief he
seeks today does not preclude us from holding that Parker’s mandamus action is
barred by res judicata. Our review of a summary judgment is de novo, Pelletier v.
Campbell, 

, 

, 

, and we
will not reverse a correct judgment merely because it is based on erroneous reasons,
Salloum v. Falkowski, 

, 

, 

, ¶ 12.
        {¶ 29} As we explained in State v. Saxon, the doctrine of res judicata
“serves to preclude a defendant who has had his day in court from seeking a second
on that same issue. In so doing, res judicata promotes the principles of finality and
judicial economy by preventing endless relitigation of an issue on which a
defendant has already received a full and fair opportunity to be heard.” 

, 

, 

, ¶ 18. We have therefore held that res
judicata bars a claimant from seeking a writ of mandamus to compel the trial court
to enter a sentence that complies with Crim.R. 32 when the trial court has
previously denied a motion requesting that relief.         State ex rel. Woods v.




                                         10
                                January Term, 2019




Dinkelacker, 

, 

, 

; State ex
rel. Hughes v. Cuyahoga Cty., 

, 

, 

.
       {¶ 30} Here, Parker admits he has attempted to collaterally attack the
validity of his sentencing entry numerous times on the basis that it did not comply
with Crim.R. 32, and he had the opportunity to appeal the trial court’s judgments
denying his motions, State ex rel. Daniels v. Russo, 

, 2018-
Ohio-5194, 

. That he was unsuccessful does not permit him
to perpetually relitigate the validity of his sentencing entry, because res judicata
precludes all claims that were or could have been raised in an appeal. State ex rel.
Cowell v. Croce, 

, 

, 

, ¶ 6. Nor
is mandamus a substitute for appellate review. 

       {¶ 31} Not only did Parker have an adequate remedy in the ordinary course
of law—he also exercised it. Having done so, the issue is decided. This is true
even though Parker frames his claim as attacking the sentencing court’s
jurisdiction, because principles of res judicata apply to prevent the endless
relitigation of jurisdictional determinations. State ex rel. Peoples v. Johnson, 

, 

, 

.
       {¶ 32} Because Parker’s complaint in this case is barred by res judicata
based on his own allegations and averments, there is no reason to consider the
remaining merits of the case, including the question whether the trial court had
jurisdiction to issue a nunc pro tunc entry to correct a clerical mistake after Parker
had appealed.
       {¶ 33} Therefore, I concur only in the judgment affirming the judgment of
the Eighth District Court of Appeals in case No. 2019-0032.
       DEWINE, J., concurs in the foregoing opinion.
                               _________________
       Vincent A. Parker, pro se.




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       Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and James
E. Moss, Assistant Prosecuting Attorney, for appellee Judge Russo.
       Dave Yost, Attorney General, and Stephanie L. Watson, Assistant Attorney
General, for appellee Warden Harris.
                             _________________




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