Post on 11-Jul-2020
IN THE SUPREME COURT OF OHIO
IN EX REL FRANK C. DAVIS CASE NO.2011CA 00231521 MARTIN GLEN TRIAL NO. 98 CR. 681
MIDLOTHIAN, VA.23112RELATOR WRIT OF MANDAMUS
VS.RONALD C. VINCENTCLERK OF CLARK COUNTY, OHIO COURT OF COMMON PLEASPO BOX 1008101 NORTH LIMESTONE STREETSPRINGFIELD, OHIO 45502
ANDERIN E. STANTON, MAGISTRATE101 NORTH LIMESTONE STREETSPRINGFIELD, OHIO 45502
ANu-
MICHAEL FAIN, SECOND DISTRICT COURT OF APPEALS101 NORTH LIMESTONESPRINGFIELD, OHIO 45502
ANDTHOMAS GRADY, SECOND DISTRICT COURT OF APPEALS101 NORTH LIMESTONE STREETSPRINGFIELD, OHIO 45502
ANDMARY DONOVAN, SECOND DISTRICT COURT OF APPEALS101 NORTH LIMESTONE STREETSPRINGFIELD, OHIO 45502
JEFFREY FROELICH, SECOND DISTRICT COURT OF APPEALS101 LIMESTONE STREETSPRINGFIELD, OHIO 45502
ANDMICHAEL T. HALL101 NORTH LIMESTONE STREETSPRINGFIELD, OHIO 45502
RESPONDENTS
VEDDEC 0 9 2011
^CER{4 F COURTI SUPRENIE Ct3UR`f OF OHIO
DEC 0 9 20 11
CLERK OF COURTSUPREME COURT OF OHIO
The Relator in Ex Rel Frank C. Davis sets forth in this Writ of Mandamus that
Ronald C. Vincent has as a public officer a clear legal duty pursuant to Ohio Appellate
Rules 11 and 11.2 to set forth a calendar by local rule for the filing of the record, brief,
and the setting of oral arguments and ultimately for determination of a judgment. The
Clark County, Ohio Court of Appeals, through Ronald C. Vincent and his designated
representative has failed or refused to place of record a scheduling
order. The reason asserted by Respondent is that he will not unseal records even though
Ohio Rules of Appellate Procedure 9 and 11 mandate that the clerk of court at the trial
level certify the original papers on appeal. In this instance, the person charged with that
clear legal duty is the duly elected Clerk of Court, Ronald C. Vincent. The Respondent,
has taken the untenable position that the sealed records according to the order of Judge
Rastatter can be unsealed solely for the purpose of the civil litigation. Based upon a
literal, yet erroneous construction of both the order, and , exhibits , certified copies of the
docket regarding the construction of appellate cases such as City of. Akron v. Frazier, (
2001 ) 142 Ohio App. 3d 718, 756 NE 2d 1258, in construing Ohio Revised Code
Section 2953.53, the Respondents have clearly violated the law.
The very issue of whether the Appellant sought and presented the right
documents to secure an order from Judge Rasttattar and whether the Appellant is the
party subject to the sealed documents necessitate that the Respondent Ronald C. Vincent,
comply with his legal mandate and duty to produce the record.
The Ohio Civil Rule of Procedure 53 governing Magistrates mandate that a
Magistrate's decision advised the persons who are subject to the proceedings that he or
she has fourteen days from the court order to file objections to the decision. The
Magistrate `s show cause order presented in lieu of such a decision contains no such
language. Pursuant to Ohio Civil Rules of Procedure 58, the trial court shall endorse the
entry before it is binding on the court and the parties. Here, Erin E. Scanlon signed the
show cause order, but the trial judge did not later sign an entry which adopts, or modifies
the Magistrates duties. Although the is no appellate Rule which outlines the scope of the
Magistrate's decision or order, Ohio Rules of Civil Procedure 9, specifically outlines the
scope of a entry's Magistrate's duties and does not allow for authorizing Magistrate
signed entries or orders without prior adoption, or affirmation of the trial judge. Hence,
according to Miller v. Miller, 2011 Ohio App. Lexis 2277 (May 26, 2011).and based
upon the foregoing reasons, the Relator prays that the Second District Court of Appeals
judges who have a clear legal duty to ensure that all the Ohio Rules of appellate
procedure, especially Ohio Appellate Rule 9, be enforced. Thus, the Relator asks that
the Ohio Supreme Court compel Ronald C. Vincent and the Second District Court of
Appeals to certify the record necessary for the prosecution of this appeal and to dismiss
the show cause order. Finally, the Relator has no adequate remedy at law.This court
should be mindful that with respect to this Relator under the underlying criminal case, the
trial
Judge has previously ignored the law and Second District Court of Appeals mandate as
evidenced by State ex rel Davis, Petitioner vs. Douglas M. Rastatter, 2006 Ohio 5305.
Wherefore, the Relator requests that this court issue a show cause order
mandating that the Respondents dismiss the show cause order and the Respondents
Ronald C. Vincent and the Second District Court of Appeals place of record before the
appellate court all pertinent documents required pursuant to Ohio Appellate Rule 9, and
Produce a scheduling order as required by Ohio Appellate Rule 11.1.
CERTIFICATE OF SERVICE
icia Diane Kitchens YounAttorney at Law, 0314291516 Dudley Walk, Apt A"
Cincinnati, Ohio 45214(513)4212832
I, hereby certify that a true and accurate cop Qlmmby Ordinary US Mail Postage prepaid this day o
IN THE OHIO SUPREME COURT
IN RE EX FRANK C. DAVIS
RELATOR
CASE NO.2°a District of Appeal Case No. 2011 CA 0023
-VS.- AFFIDAVIT IN SUPPORT OF WRIT OFMANDAMUS
RONALD C. VINCENT, CLERKOF COURTS FOR CLARK COUNTY, ET AL.
RESPONDENT
STATE OF OHIO ))SS:
COUNTY OF HAMILTON)
Now come the Relator, Frank C. Davis, and after having been duly sworn, states as
follows:
(1) I, through my authorized legal counsels, Patricia Diane Kitchens Young and William
D. Bell, Sr. Filed an appeal on April 14, 2011 with the Second District Court of Appeals, Case
No. 2011 CA 0023. See Relator's Exhibit A, which is incorporated herein and is a true and
accurate copy of the original criminal docket statement.
(2) Prior tb my having filed the above referenced appeal, I caused to be placed of record
an affidavit which requested that Judge Douglas Rastatter, Clark County, Ohio Court of
Common Pleas, unseal my records for Case No. 98 CR 681, Clark County, Ohio Court of
Common Pleas, which were previously expunged, for all purposes for use pursuant to Ohio
Revised Code Section 2953.33. See Relator's Exhibit D which is incorporated herein and which
is a true and accurate copy of the original affidavit filed.
-(3)_De-spite my request Judge Rastatter limited the unsealing of the records to Case No.
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•PROJECTEQ QAOF THE COURT REPDRTER:
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IN THE COURT OF APPEALS OF OHIOSECOND APPELLATE DIVISION
CLARK COUNTY
STATE OF OHIO
Plaintiff-Appellee : Appellate Case No. 2011-CA-23
Trial Court Case No. 98-CR-681
FRA^NF: C. DAVIS
Defendant-Appellant
SHOW CAUSE ORDER(Failure to File Record)
October SO , 2011
The record on appeal has not been prepared and filed within the time allowed by App.
R. 10(A) or as extended by order of the court. Appellant shall, within fourteen (14) days of the
date of this show cause order, either cause the record to be prepared and filed, or show
cause, in writing, why this matter should not be dismissed for failure of appellant to timely
prepare and file the record.
!T':S SO ORDERED.
ERIN E. SCANLON, Magistrate
Copies provided by the court to:
Andrew R. Picek William Bell, Sr.
50 E. Columbia Street Patricia YoungP.O. Box 1608 830 N. Main Street
Springfield, OH 45501 Suite 604Cincinnati, OH 45202
THE COURT OF APPEALS OF OHIOSECOND APPE^LATI DISTRI T^..,,
qPR-13-2011 i0:54 CLfiRK C.O. CLERK OF CaJMo937 32B 2436 P.02
^O.^I^ tSnntmvzc ^lett,^ of ^tl^rk ^uutitg. (^4i^r
STATE
vs.
CASE NO: 98CR0681
Defendant, ENTRY
RASTATTER, JUDGE
Defendant's motion to unseal his case for the limited purpose to
should contact the Clerk of Courts for a time to unseal the file and
obtain said documents. When the defendant has obtained what he
nreeds from the file; the file is hereby ()RDERED RESEALED.
obtain documents for his civil suit is SUSTAINED. Defense counsel
Dougla , Rastatter, Judge
CER7'IEIEp COPY
Filed 3 '^5
cc:A. PieekW. Bell
%') Clerit
xGaunry, Ohio$1R7^4lii^t/I/ ^^ r^!^ i L}EpJ(ji
Feb -18 11 01:53p F Davis
06130J2069 64:16 5132413091
8047395216
3l,^ 1T3E COU1.tT OF CoQ Ol'71e~LEASCzr^zt nzvI
CLA-W COIINTX, O111O
CASE N0.11-C'V 0052
p.1t"AUt ne/ 03
FRANK DAVJS1521 MarFitu Glen TerraceMjdlotbian, Virgixtia 23112 TUDG7E O'NEIi,
Plainti'ff vvXDAVI'fl SWORN APF'LI-
CATlON OF FRAWC DAVIS
CLAIt.K CO[RNTXCO1vIMISSLONF.^s ET AL. F[l^t.Q^DE4t."Z'O RELEASE
IiIS REGORDS cONTAI3IL33UNDER 98 CR 0681
STA"i'E OF NTRGINiA.
COUIdTX OF CHESTERFIELD )
)
SS:
L'ramk C. T]ati'is, h.avu'ig beeta duly sworn, deposes and says ths £ollowing :
1) Mp r<ame i s krank C. I]avis. and i arn o£ sound miald aad 1egaJ aSe. The stateznents
tlaadee herein are irue atld correct to the best of ury perscmaa knowledge.
2} 1fitad an app]icazion to have mY records, whicJa aaze coMaizied uzrder 98 CR, 0681, sea.led
purs=t to Olaio Revised Gode 2953. 52.of tb.e zecords and seek that those re.coxde upon zz7^}'
on who is snbject3) i am tb e pcrs
vrritten apPlication or affidavit set forth hezein be rnade avadlable to me actd rrEy attozneys,
\V iil.iam D. Sell> Sx. aud Pauioia Diane Kiteh.erAS Youtlg of 830 Me.iA. Street, Ci.zr.oinnata,
as the law authorizes uvder Oi^zo Revised GodeOhio 45292 for any p^ose I so ohase
Seetion 2953-53.
(^,- , L +' La ^ ^)
Feb 18 11 01:53p F Davis 8047395216 p.2
06J3H12009 04:10 5132413691 PAGE 03163
p,FkIANT SA.yE3H NA.UGH1'
Sworz^. to befoxe me and subscribed in My prese^ce #bis-_^t----day of February, 201I
PublicNotazyU `
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j CONNtE ROYSTEF AM&URNC0 - Or °^n7+^.t'^ NotaryPublic
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EXHIBIT C
LEXSEE 2006 OHIO 5305
STATE ex rel. FRANK DAVIS, Petitioner vs. JUDGE DOUGLAS M_
RASTATTER, Respondent
C.A. CASE NO. 06-CA-66
COURT OF APPEALS OF OHIO, SECOND APPELLATE DISTRICT, CLARK
COUNTY
2006 Ohio 5305; 2006 Ohio App_ LEXIS 5301
September 29, 2006, Rendered
PRIOR HISTORY: State v. Davis, 166
2006 Ohio 1592, 851Ohio App- 3d 468
proceedings on the charges against
Petitioner from which those,N-E.2d 515, 2006 Ohio App. LEXIS 1459
(Ohio Ct. App., Clark County, 2006)
convictions arose. State v. Daviis 166
Ohio App. 3d 468, 2006 Ohio 1592, 851
N_E.2d 515.
JODGES: [**1] THOMAS J. GRADY,
PRESIDING JUDGE, JAMES A. BROGAN,[*P3] "A court that reverses or
JUDGE, MIKE FAIN, JUDGE.affirms a£inal order, judgment,
decree of a lower court upon appeal
or
on
OPINION BY: THOMAS J. GRADY
OPINION
WRIT OF MANDAMUS
[*Pl] This matter is before the
court on a petition for Writ of
Mandamus filed by Petitioner, Frank
Davis, on. July 6, 2006, against
Respondent, Judge Douglas N.
Rastatter. Petitioner subsequently
filed a motlion for default judgment,
Judge Rastatter having failed to file
a responsive pleading after being
served by certified mail on July 11,
2006-
questions of law, shall not issue
execution, but shall send a special
mandate to the lower court for
execution or further proceedings.
[*P4] "The court to which such
nandate is sent shall proceed as if
the final order, judgment, or decree
had been rendered [**2] in it. On
motion and for good cause shown, it
may suspend an execution made
returnable before it, as if the
execution had been issued from its own
court. Such suspension shall extend
only to stay proceedings until the
matter can be further heard by the
court of appeals or the supreme
court." R.C. 2505.39_
[*P2] In an appeal filed by
Petitioner Davis, we reversed his
convictions for three drug offenses
and the sentences Respondent imposed
on them, and we remanded the case to
the trial court for further
[*P5] An order of remand is
directed to the trial court, and it is
the xesponsibility of the trial court
to see that the order is carried out.
Mid-Ohio Liqaid Fertilizers, Inc, v.
2006 Ohio 5305, *P5; 2006 Ohio App. LEXIS 5301, **2
Lowe (1984), 14 Ohio App.3d 36, 14
Ohio B. 40, 469 N.E.2d 1019. The
judgment of the court of appeals is
the law of the case binding the trial
court on remand. Hubbard ex rel.
Creed v. Sauline, 74 Ohio St.3d 402,
1996 Ohio 174, 659 N.E.2d 781. In the
absence of extraordinary
circumstances, the court to which a
case is remanded has no discretion to
disregard the order of the remand from
the court of appeals. Nolan v. Nolan
(1984), 11 Ohio St.3d 1, 11 Ohio B. 1,
462 N.E.2d 410.
[*P6] Respondent is the judge of
the Court of Common Pleas of Clark
County assigned to preside in the
State's case against Petitioner to
which our remand applies. On July 26,
2006, disregarding our mandate,
Respondent journalized [**3] an order
requiring Petitioner to continue to
serve two of the three sentences on
convictions we reversed. That was not
Page 2
only contrary to the law of the case
as we decided it; it was also a
failure to exercise the discretion we
had ordered Respondent to exercise.
[*P7] Petitioner's motion for
default judgment is Granted.
Respondent is ordered to assign the
case in which the indictment charging
Petitioner with three drug offenses
was filed for trial on the court's
docket and to order Petitioner
released from imprisonment to stand
trial on those charges, forthwith, and
to proceed to trial on any of those
charges not dismissed by the State.
So Ordered.
THOMAS J. GRADY, PRESIDING JUDGE
JAMES A. BROGAN, JUDGE
MIKE FAIN, JUDGE