State ex rel. Ogle v. Hocking Cty. Common Pleas Court (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ogle v. Hocking Cty. Common Pleas Court, 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. OGLE, APPELLANT, v. HOCKING COUNTY COMMON PLEAS
                               COURT ET AL., APPELLEES.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
 may be cited as State ex rel. Ogle v. Hocking Cty. Common Pleas Court, Slip
                             Opinion No. 

.]
Mandamus—Prohibition—Motion for Disqualification—Sixth Amendment—A
        petition for writs of mandamus and prohibition seeking to have a sentencing
        entry rendered void survives when the petitioner states a colorable claim
        for a violation of her Sixth Amendment right to counsel—Motion for
        disqualification correctly denied when the attorney against whom
        disqualification is sought never represented the movant and therefore owed
        her no duty of loyalty—Court of appeals’ judgment affirmed in part and
        reversed in part and cause remanded.
   (No. 2021-0234—Submitted August 3, 2021—Decided December 21, 2021.)
       APPEAL from the Court of Appeals for Hocking County, No. 20CA9.
                                    ________________
                             SUPREME COURT OF OHIO




       Per Curiam.
       {¶ 1} Appellant, Melanie A. Ogle, appeals the judgment of the Fourth
District Court of Appeals dismissing her complaint for writs of mandamus and
prohibition against appellees, Judge Dale A. Crawford and the Hocking County
Common Pleas Court, and denying her motion for disqualification of attorney
Randall L. Lambert. We affirm the denial of the motion for disqualification.
However, we reverse the dismissal of the prohibition and mandamus claims and
remand the case for further proceedings.
                                  I. Background
       {¶ 2} In August 2011, a Hocking County jury found Ogle guilty of
assaulting a peace officer, in violation of R.C. 2903.13. State v. Ogle, Hocking C.P.
No. 09CR0125 (Sept. 28, 2011). Ogle was represented by counsel at trial.
       {¶ 3} On September 16, 2011, prior to sentencing, Judge Crawford placed
Ogle on house arrest. Judge Crawford’s order stated, in part, that Ogle would be
“released on a Recognizance Bond with the conditions as follows: (1) the
Defendant is to have no contact, direct or indirect, with any juror, witness, lawyer
or the Court while on bond.” (Emphasis added.) On September 21, Ogle filed a
“Notice of Pro Se Appearance.”
       {¶ 4} On September 27, Judge Crawford held a sentencing hearing. At the
outset, Ogle refused to sign a waiver-of-counsel form, insisting that she did not
waive her right to counsel but had “an inability to obtain counsel.” Judge Crawford
asked Ogle three times whether she wished for the court to appoint counsel to
represent her. Ogle did not directly answer the judge’s question but responded each
time that she did not waive her right to counsel. Ogle did not explain why she was
unable to obtain counsel, but she apparently believed that Judge Crawford’s
September 16 order forbade her from speaking to an attorney. Judge Crawford told
Ogle, “I will take your notice of pro se appearance as a voluntary waiver of your
right to counsel at this point in time because you have not requested the Court




                                           2
                                January Term, 2021




appoint counsel on your behalf.” Ogle continued to assert that she did not waive
her right to counsel, prompting Judge Crawford to say the following:


                Well, as I said, I could have ten different hearings, Mrs.
         Ogle, with you, and you could say the same thing, ‘I haven’t waived
         my right to counsel’ and then I don’t know what I am supposed to
         do. I can’t force counsel upon you. I have asked you if you want
         the Court to appoint counsel since you can’t afford one. You won’t
         answer yes under that question so I am going to proceed with
         sentencing.


Judge Crawford then conducted the hearing, at the end of which he imposed a
sentence of six months in the county jail and ordered Ogle to pay a $2,500 fine,
$792.65 in restitution, and court costs. When asked if she had anything else to say,
Ogle again stated: “I do not waive my right to counsel. I have an inability to obtain
counsel and this hearing is being held in violation of my Sixth and Fourteenth
Amendment rights to the Constitution of the United States.” On September 28,
Judge Crawford journalized the sentencing entry.
         {¶ 5} The court of appeals affirmed Ogle’s conviction. State v. Ogle, 4th
Dist. Hocking Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19,

.
         {¶ 6} On September 30, 2020, Ogle filed a complaint for writs of mandamus
and prohibition in the court of appeals. She alleged that Judge Crawford had no
jurisdiction to hold the September 27, 2011 sentencing hearing, because she had
not waived her right to counsel. She asked the court of appeals for writs of
mandamus and prohibition as a means to void the September 28, 2011 sentencing
entry.




                                         3
                             SUPREME COURT OF OHIO




       {¶ 7} Judge Crawford and the Hocking County Common Pleas Court,
represented by Lambert, filed a motion to dismiss Ogle’s complaint. Ogle filed a
memorandum in opposition to the motion to dismiss and a motion to disqualify
Lambert as counsel. Ogle claimed that Lambert had represented Trent Woodgeard
in a lawsuit that she had filed against Woodgeard in federal court. Woodgeard, a
Hocking County sheriff’s deputy, was the peace officer whom Ogle was convicted
of assaulting in 2011. See 

. Ogle argued that it was a conflict of interest
for Lambert to represent both Judge Crawford, who presided over her criminal trial,
and Deputy Woodgeard, who was “the false accuser, alleged victim, and sole
witness against” her in that same criminal trial.
       {¶ 8} On January 7, 2021, the court of appeals granted the motion to
dismiss. 4th Dist. Hocking No. 20CA9. The court of appeals held that prohibition
would not lie, because Judge Crawford had general jurisdiction over Ogle’s felony
case. In addition, the court held that Ogle was not entitled to mandamus relief,
because she had an adequate remedy by way of direct appeal to assert her right-to-
counsel claim. The court of appeals denied the motion to disqualify Lambert
because there was no evidence that an attorney-client relationship had ever existed
between Lambert and Ogle.
       {¶ 9} Ogle appealed to this court as of right.
                                 II. Legal analysis
                 A. The dismissal of Ogle’s prohibition complaint
       {¶ 10} To be entitled to a writ of prohibition, Ogle must establish the
exercise of judicial power, the lack of authority for the exercise of that power, and
the lack of an adequate remedy in the ordinary course of law. State ex rel. Elder v.
Camplese, 

, 

, 

, ¶ 13. However,
if the absence of jurisdiction is patent and unambiguous, she need not establish the
third prong—the lack of an adequate remedy in the ordinary course of law. State
ex rel. Sapp v. Franklin Cty. Court of Appeals, 

, 2008-Ohio-




                                          4
                                January Term, 2021




2637, 

. We review de novo a decision granting a motion to
dismiss under Civ.R. 12(B)(6). Alford v. Collins-McGregor Operating Co., 

, 

, 

.
       {¶ 11} There is no dispute that Judge Crawford exercised judicial authority.
The court of appeals reasoned that his exercise of that authority was lawful because
R.C. 2931.03 vests the common pleas court with original jurisdiction over most
criminal matters, including the felony charge against Ogle. But according to Ogle,
the issue is not Judge Crawford’s general jurisdiction, but whether she alleged facts
to suggest that her sentencing entry was void.
       {¶ 12} Ogle’s argument rests on the United States Supreme Court’s
decision in Johnson v. Zerbst, 

, 

, 

 (1938).
Johnson was convicted in federal court of counterfeiting money, following a trial
at which he was not provided counsel. 

. Johnson later filed a petition
for a writ of habeas corpus based on the denial of his constitutional right to counsel.
The district court denied relief on the ground that any such deprivation was an error
to be corrected on appeal, not a defect that rendered the judgment of the trial court
void. 

. The United States Supreme Court reversed, holding that “[a]
court’s jurisdiction at the beginning of trial may be lost ‘in the course of the
proceedings’ due to failure to complete the court—as the Sixth Amendment
requires—by providing counsel for an accused who is unable to obtain counsel,
who has not intelligently waived this constitutional guaranty, and whose life or
liberty is at stake.” 

. If these requirements are not met, the trial court no
longer has jurisdiction and the judgment of conviction is void. 

       {¶ 13} We recently clarified that “[a] sentence is void only if the sentencing
court lacks jurisdiction over the subject matter of the case or personal jurisdiction
over the accused,” State v. Henderson, 

, 

, 

, but the declaration in Zerbst that a Sixth Amendment violation
renders an associated conviction void remains in force.




                                          5
                              SUPREME COURT OF OHIO




        {¶ 14} Appellees argue that the United States Supreme Court overruled
Zerbst in Edwards v. Arizona, 

, 

, 

(1981). This is incorrect. Edwards changed the standard for what constitutes a
waiver of the right to counsel (in the context of a police interrogation), but it did
not overrule the holding in Zerbst that if there is no valid waiver of the right to
counsel at trial, then the resulting conviction is void.
        {¶ 15} Alternatively, appellees contend that Ogle’s claim is barred by res
judicata, either because she raised the issue that the trial court erred by sentencing
her in violation of her Sixth and Fourteenth Amendment rights in her direct appeal
or because she did so unsuccessfully in a federal habeas corpus proceeding.
However, res judicata is an affirmative defense and is not a proper basis for
dismissal for failure to state a claim upon which relief can be granted. State ex rel.
Neguse v. McIntosh, 

, 

, 

.
        {¶ 16} Next, appellees suggest that this court should affirm the dismissal of
Ogle’s complaint for failure to state a claim. They contend that Ogle never asserted
her Sixth Amendment right to counsel and therefore waived it. But the transcript
of the sentencing hearing shows that Ogle never expressly waived her right to
counsel; to the contrary, she repeatedly asserted it and expressly invoked the Sixth
Amendment at least four times during the hearing.             Courts disfavor self-
representation and will therefore “ ‘indulge in every reasonable presumption
against waiver [of counsel].’ ” (Brackets added in Hackett) State v. Hackett, 

, 

, 

 (Stewart, J., concurring),
quoting Brewer v. Williams, 

, 

, 

(1977). Ogle has at least pleaded a colorable claim that she did not waive her Sixth
Amendment right to counsel and, in fact, she expressly asserted it.
        {¶ 17} Alternatively, appellees contend that Ogle waived her right to
counsel because she failed to complete an affidavit of indigency. But the Sixth
Amendment right to counsel is not limited only to indigent defendants. The Sixth




                                           6
                                January Term, 2021




Amendment guarantees a defendant “the right to be represented by an otherwise
qualified attorney whom that defendant can afford to hire, or who is willing to
represent the defendant even though he is without funds.” Caplin & Drysdale,
Chartered v. United States, 

, 

, 

 (1989). And when a court wrongfully denies a defendant her counsel of choice,
the court has committed structural error. United States v. Gonzalez-Lopez, 

, 

, 

 (2006); see also State v. Chambliss, 

, 

, 

, ¶ 18 (“the erroneous deprivation
of a defendant’s choice of counsel entitles him to an automatic reversal of his
conviction”). In this case, Ogle has alleged that Judge Crawford’s September 16,
2011 order prevented her from retaining or consulting with any counsel, regardless
of her ability to pay.
        {¶ 18} Finally, appellees argue that Judge Crawford subsequently cured any
constitutional defect in the bond order. On November 22, 2011, Judge Crawford
conducted another hearing in order to clarify any misunderstanding that Ogle may
have had regarding the September 16, 2011 order and her ability to have contact
with a lawyer. Judge Crawford informed Ogle, “If you want a lawyer, I would be
happy to appoint [a] lawyer for you for purposes of your appeal,” and he informed
Ogle that he would appoint counsel for her bond argument, so long as she filled out
an affidavit of indigency. (Emphasis added.) But this offer did not cure the alleged
problem, because it did not vacate the sentencing entry. Judge Crawford issued an
order and notice on November 22, 2011, stating that the September 16 bond order
“did not, and does not, prohibit her from contacting counsel to represent her on any
matter.” But that modification of the September bond order only freed Ogle to
retain counsel for her appeal; it did not vacate the unlawful sentencing entry.
        {¶ 19} In sum, Ogle has stated a colorable claim that Judge Crawford
violated her Sixth Amendment rights when he ordered her to not communicate with
any lawyer and then sentenced her and that this error rendered the sentencing entry




                                         7
                              SUPREME COURT OF OHIO




void. Judge Crawford may (or may not) have a meritorious res judicata defense,
but that issue is premature at this stage of the proceedings. We reverse the court of
appeals’ judgment dismissing Ogle’s complaint for a writ of prohibition and
remand the case for further proceedings.
                  B. The dismissal of Ogle’s mandamus complaint
       {¶ 20} To be entitled to a writ of mandamus, a party 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. Waters v. Spaeth, 

, 

, 

, ¶ 6, 13. 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. State ex rel. Natl. Elec. Contrs. Assoc. v. Ohio Bur. of Emp. Servs.,

, 

 (1998). This court reviews de novo a
decision granting a motion to dismiss under Civ.R. 12(B)(6). Alford, 

, 

, 

.
       {¶ 21} The court of appeals dismissed Ogle’s mandamus complaint
pursuant to the general rule that mandamus will not lie when the petitioner has an
adequate remedy in the ordinary course of the law. But there is an exception to this
rule: “[W]hen there is a patent and unambiguous lack of jurisdiction, [mandamus]
relief is warranted ‘to prevent any future unauthorized exercise of jurisdiction and
to correct the results of prior jurisdictionally unauthorized actions, notwithstanding
the availability of appeal.’ ” State ex rel. Davis v. Janas, 

, 2020-
Ohio-1462, 

, quoting State ex rel. Dannaher v. Crawford, 

, 

 (1997). The logic of our prohibition analysis
applies with equal force to the mandamus claim. We therefore reverse the judgment




                                           8
                                January Term, 2021




of the court of appeals dismissing the mandamus complaint and remand this case
for further proceedings.
                  C. Ogle’s motion to disqualify opposing counsel
       {¶ 22} Lambert represented Deputy Woodgeard in federal litigation filed
by Ogle. According to Ogle, Lambert knows that false testimony was presented in
that proceeding and that she was framed in the underlying criminal proceedings;
she therefore contends that Lambert has an interest in not allowing the truth to come
to light in the present case. Whatever the truth of these allegations, they do not
describe a conflict of interest that would warrant disqualification.
       {¶ 23} A conflict of interest is “a ‘struggle to serve two masters.’ ” State v.
Strickland, 2d Dist. Montgomery No. 25673, 

, quoting Cuyler
v. Sullivan, 

, 

, 

 (1980). “The
possibility of a conflict of interest exists when counsel has a reason to further or
serve interests that are different from those of his client. An actual conflict of
interest exists when counsel is actively representing, furthering, or serving those
other interests (that are different from those of his client).” (Emphasis added.) State
v. Caulley, 10th Dist. Franklin No. 12AP-100, 

, ¶ 21. Because
Ogle has never been a client of Lambert’s, she is not owed any duty of loyalty by
Lambert, and she has no standing to complain of a conflict in his representation of
Judge Crawford and the Hocking County Common Pleas Court. See, e.g., State ex
rel. Parisi v. Dayton Bar Assn. Certified Grievance Commt., 

,

, 

, ¶ 11. For this reason, the court of appeals
properly denied the motion to disqualify Lambert.
                                  III. Conclusion
       {¶ 24} We affirm the court of appeals’ denial of Ogle’s motion to disqualify
Lambert. We reverse the court of appeals’ dismissal of Ogle’s complaint for writs
of mandamus and prohibition for the reasons stated herein and remand this matter
for further proceedings on Ogle’s petition for extraordinary relief.




                                          9
                              SUPREME COURT OF OHIO




                                                          Judgment affirmed in part
                                                               and reversed in part,
                                                               and cause remanded.
          O’CONNOR, C.J., and FISCHER, DONNELLY, STEWART, and BRUNNER, JJ.,
concur.
          KENNEDY, J., dissents, with an opinion joined by DEWINE, J.
                                _________________
          KENNEDY, J., dissenting.
          {¶ 25} The deprivation of counsel at a critical phase of a criminal
proceeding is structural error and is automatically reversible if asserted on direct
appeal, but a violation of the Sixth Amendment does not divest the common pleas
court of subject-matter jurisdiction. Because appellee Judge Dale A. Crawford did
not patently and unambiguously lack jurisdiction to sentence appellant, Melanie A.
Ogle, after she was found guilty of assaulting a peace officer, I would affirm the
judgment of the Fourth District Court of Appeals. Therefore, I dissent.
          {¶ 26} The majority opinion omits some important facts. After the jury
found Ogle guilty of assaulting a peace officer, Ogle’s attorneys withdrew from the
case. See State v. Ogle, Hocking C.P. No. 09 CR 0125 (Sept. 27, 2011). While
Ogle awaited sentencing, the trial court placed her on house arrest. The own-
recognizance-bond (“OR bond”) order prohibited her from having “contact, direct
or indirect, with any juror, witness, lawyer or the Court while on bond.” The state
moved to revoke the OR bond because Ogle allegedly “had direct, confrontational
contact with a juror” in her criminal case. In response to the state’s motion, Ogle
filed a “Notice of Pro Se Appearance” with appellee Hocking County Common
Pleas Court. In that notice, she stated that she “knowingly, intelligently and
voluntarily waives her right of counsel.” Ogle also stated in the notice that she had
recently retained three attorneys “for the purpose of defending a maliciously filed
motion to revoke bond, an illegal arrest warrant issued by the Court against




                                         10
                                January Term, 2021




Defendant, and violation of Defendant’s rights to due process regarding the same.”
However, she informed the court that because she was no longer able to pay for
their representation, she was proceeding pro se “at this time, or until subsequent
notice.”
       {¶ 27} At the sentencing hearing, Ogle appeared without counsel and
asserted that she was revoking her waiver of her right to counsel. When the trial
court asked her whether she had attempted to retain counsel, she replied, “I have an
inability to obtain counsel.” The trial court asked her whether she was requesting
that counsel be appointed, and she again replied, “I have an inability to obtain
counsel.” The trial court asked Ogle a second time whether she was requesting that
counsel be appointed, but she answered only, “I have an inability to obtain counsel”
and “I do not waive my right to counsel.” The court advised Ogle of her right to be
represented by counsel at the sentencing hearing and that the court would appoint
counsel for her if the court determined that she was unable to afford an attorney.
The court again asked her if she wanted counsel to be appointed, and Ogle
responded, “I do not waive my right to counsel and I have an inability to obtain
counsel.” The trial court therefore treated Ogle’s notice of pro se appearance as a
voluntary waiver of her right to counsel. The trial court could not appoint counsel
when Ogle had not requested counsel, and it could not determine her eligibility for
appointed counsel when she did not first fill out an affidavit of indigency.
       {¶ 28} During the sentencing hearing, Ogle never asserted that she had not
been able to obtain counsel because the OR-bond order prohibited her from
contacting any attorney. Notwithstanding the majority’s finding to the contrary,
Ogle’s notice of pro se appearance stated that she had retained three attorneys to
challenge the state’s motion to revoke her bond. The OR-bond order, therefore, did
not stop Ogle from seeking representation.
       {¶ 29} Rather, at another hearing almost two months later, Ogle raised the
argument that the OR-bond order barred her from contacting any attorney. Yet




                                         11
                             SUPREME COURT OF OHIO




even after the trial court informed her that the OR-bond order did not preclude her
from contacting an attorney, she again asserted that she did not waive her right to
counsel, that she was unable to obtain counsel, and that the court therefore had no
jurisdiction to hold a sentencing hearing or a bond hearing.
       {¶ 30} Based on these facts, it is not reasonable to conclude that Ogle’s
belief that the OR-bond order prohibited her from contacting an attorney was the
reason she failed to obtain representation for the sentencing hearing or the reason
she refused Judge Crawford’s offer to appoint counsel for her. Ogle does not have
the right to stonewall the court by asserting her right to counsel, failing to obtain
counsel, and refusing to complete an affidavit of indigency to allow the court to
appoint counsel for her. The accused’s parallel rights to counsel and to self-
representation “cannot be manipulated to frustrate the orderly processes of the trial
court.” Fischetti v. Johnson, 

 (3d Cir.2004). Moreover, Judge
Crawford did not prevent Ogle from obtaining her counsel of choice, and Ogle had
no right to “insist on representation by an attorney [she] cannot afford or who for
other reasons declines to represent [her],” Wheat v. United States, 

, 

, 

 (1988). And because Ogle failed to establish
her indigence in the first instance, she had no right to appointed counsel. See
Gideon v. Wainwright, 

, 

, 

 (1963).
       {¶ 31} “[T]he Sixth Amendment guarantees a defendant the right to have
counsel present at all ‘critical’ stages of the criminal proceedings,” Montejo v.
Louisiana, 

, 

, 

 (2009), and
sentencing is a critical stage of the proceedings, Gardner v. Florida, 

, 

, 

 (1977). But even if Judge Crawford had denied
Ogle the right to counsel at sentencing, doing so would not have divested the court
of subject-matter jurisdiction or rendered her judgment of conviction void ab initio.
       {¶ 32} In the nineteenth and early-twentieth centuries, the United States
Supreme Court construed the law so that the court could not issue a writ of habeas




                                         12
                                January Term, 2021




corpus unless the trial court had lacked jurisdiction. See United States v. Cotton,

, 

, 

 (2002). “The Court’s desire
to correct obvious constitutional violations led to a ‘somewhat expansive notion of
“jurisdiction.” ’ ” 

 quoting Custis v. United States, 

, 

, 

 (1994). The Supreme Court therefore relaxed the rule that
a writ of habeas corpus was unavailable “by the device of holding that various
illegalities deprived the trial court of jurisdiction.” Withrow v. Williams, 

, 

, 

 (1993) (Scalia, J., concurring in part
and dissenting in part). For example, the Supreme Court held that trial courts
lacked jurisdiction to violate the Double Jeopardy Clause, Ex parte Lange, 

, 

 (1873), to try the accused for the violation of an
unconstitutional law, Ex parte Siebold, 

, 

(1879), and relevant here, to completely deny the accused the assistance of counsel
in violation of the Sixth Amendment, Johnson v. Zerbst, 

, 

, 

 (1938). Notably, these cases addressed the jurisdiction
of federal courts.    They did not hold that a violation of the United States
Constitution affects the subject-matter jurisdiction of Ohio courts, which is
conferred by the Ohio Constitution and by statute, State v. Harper, 

, 

, 

.
       {¶ 33} The Supreme Court departed from its earlier cases in Waley v.
Johnston, 

, 

, 

 (1942), holding that
“the use of the writ in the federal courts to test the constitutional validity of a
conviction for crime is not restricted to those cases where the judgment of
conviction is void for want of jurisdiction of the trial court to render it.” In Waley,
the Supreme Court “openly discarded the concept of jurisdiction” that was
articulated in cases such as Zerbst as a concept that had become “more a fiction
than anything else.” Wainwright v. Sykes, 

, 

, 

 (1977). As the Supreme Court explained in Cotton, its prior “elastic




                                          13
                             SUPREME COURT OF OHIO




concept of jurisdiction is not what the term ‘jurisdiction’ means today, i.e., ‘the
courts’ statutory or constitutional power to adjudicate the case.’ ” (Emphasis sic.)

, 

, 

, quoting Steel Co. v. Citizens for
Better Environment, 

, 

, 

 (1998).
Subject-matter jurisdiction refers only to “the classes of cases * * * falling within
a court’s adjudicatory authority,” Kontrick v. Ryan, 

, 

, 

 (2004), and it is not dependent on the rights or obligations of
the parties, Landgraf v. USI Film Prods., 

, 

, 

 (1994); see also Rockwell Internatl. Corp. v. United States, 

, 

, 

 (2007) (“It is true enough that the word
‘jurisdiction’ does not in every context connote subject-matter jurisdiction”).
       {¶ 34} The Supreme Court, therefore, no longer treats denying an accused
the assistance of counsel—either entirely or during a critical phase of the
proceeding—as an error divesting the trial court of subject-matter jurisdiction.
Rather than a jurisdictional error, denying an accused the assistance of counsel at a
critical phase of trial is a structural error from which a presumption of prejudice
arises. See United States v. Cronic, 

, 

, 

 (1984), fn. 25. The existence of structural error, however, does not
render the conviction void ab initio but rather, “[i]t means only that the government
is not entitled to deprive the defendant of a new trial by showing that the error was
‘harmless beyond a reasonable doubt,’ ” Weaver v. Massachusetts, ___ U.S. ___,
___, 

, 

 (2017), quoting Chapman v.
California, 

, 

, 

 (1967).
       {¶ 35} The presence of a structural error is therefore distinguishable from
the trial court’s lacking subject-matter jurisdiction. In Weaver, for example, the
existence of a structural error (the denial of a public trial by closing the courtroom
during jury selection) did not permit a collateral attack on the conviction based on
ineffective assistance of counsel absent a showing of prejudice. 

 at __, 

                                 January Term, 2021




at 1913. In contrast, subject-matter jurisdiction cannot be waived or forfeited and
may be asserted at any time. State v. Mbodji, 

, 

,

, ¶ 10. And when subject-matter jurisdiction is lacking, the case
must be dismissed, not remanded. See Pratts v. Hurley, 

, 2004-
Ohio-1980, 

, ¶ 21; compare United States v. Gonzalez-Lopez, 

, 

, 

 (2006) (remanding for further
proceedings after holding that the trial court had violated the accused’s right to
counsel of choice).
       {¶ 36} Our cases have not treated the denial of the right to the assistance of
counsel as a jurisdictional error either. We have explained that “[c]laims involving
* * * the alleged denial of the right to counsel are not cognizable in habeas corpus.”
State ex rel. Rackley v. Sloan, 

, 

, 

, quoting Bozsik v. Hudson, 

, 

, 

, ¶ 7.
       {¶ 37} Further, like the United States Supreme Court, we have recognized
that subject-matter jurisdiction involves the question whether the judicial forum is
competent to hear a particular type or class of case, and it “ ‘is determined without
regard to the rights of the individual parties involved in a particular case.’ ” Harper,

, 

, 

, quoting Bank of
Am., N.A. v. Kuchta, 

, 

, 

.
        {¶ 38} “[P]ursuant to R.C. 2931.03, ‘a common pleas court has subject-
matter jurisdiction over felony cases.’ ” Id. at ¶ 25, quoting Smith v. Sheldon, 

, 

, 

, ¶ 8. The trial court, then, was the
proper forum to sentence Ogle for committing a felony, and consideration of
whether the court denied her the assistance of counsel addresses the rights of the
parties, not the adjudicatory power of the court. The trial court therefore had
subject-matter jurisdiction over the case, and “when a specific action is within a




                                          15
                               SUPREME COURT OF OHIO




court’s subject-matter jurisdiction, any error in the exercise of that jurisdiction
renders the court's judgment voidable, not void,” id. at ¶ 26.
       {¶ 39} Today, the majority propagates the confusion we have recently
sought to dispel between the existence of subject-matter jurisdiction (which
involves only whether the court has the constitutional and statutory power to hear
a specific type of case) and errors in the exercise of that subject-matter jurisdiction
(which render the judgment voidable on appeal, not void ab initio), such as denying
an accused the assistance of counsel. See id.; State v. Henderson, 

, 

, 

; see also Kuchta at ¶ 18 (“The often
unspecified use of this polysemic word [‘jurisdiction’] can lead to confusion and
has repeatedly required clarification as to which type of ‘jurisdiction’ is applicable
in various legal analyses”).
       {¶ 40} Ogle has not shown that Judge Crawford patently and
unambiguously lacked subject-matter jurisdiction when he imposed a sentence on
her more than a decade ago. Therefore, I dissent and would affirm the appellate
court’s judgment dismissing Ogle’s complaint for a writ of prohibition.
       DEWINE, J., concurs in the foregoing opinion.
                                _________________
       Melanie A. Ogle, pro se.
       Lambert Law Office, Randall L. Lambert, and Cassaundra L. Stark, for
appellees.
                                _________________




                                          16