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State ex rel. Ervin v. Barker

Supreme Court of Ohio

July 25, 2013

The State ex rel. Ervin, Appellant,
v.
Barker, Judge, Appellee.

Submitted July 9, 2013

Appeal from the Court of Appeals for Cuyahoga County, No. 98704, 2013-Ohio-376.

Levert Ervin, pro se.

Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for appellee.

Per Curiam.

{¶ 1} This is the appeal of an action for a writ of mandamus by relator-appellant Levert Ervin to compel respondent-appellee Judge Pamela Barker to vacate an order by an acting administrative judge in Ervin's underlying criminal case.

{¶ 2} Because Ervin had an adequate remedy at law, the Eighth District was correct in dismissing his petition for a writ of mandamus, and we affirm.

Facts

{¶ 3} On May 4, 2001, a jury in Cuyahoga County Court of Common Pleas case No. CR-01-400774 found Ervin guilty of 11 counts of rape and one count of attempted rape. He was sentenced to mandatory life in prison for six of the rape counts, life in prison for the remaining five rape counts, and ten years on the count of attempted rape. His convictions were affirmed on appeal. State v. Ervin, 8th Dist. Cuyahoga No. 80473, 2002 Ohio-4093, appeal not accepted, State v. Ervin, 98 Ohio St.3d 1412, 2003-Ohio-60, 781 N.E.2d 1020.

{¶ 4} Early in the course of Ervin's trial, the assistant prosecutor discovered that one of the prosecution's witnesses, a social worker named Ian Lucash, would not be available to testify live because of previously scheduled surgery. The assistant prosecutor moved to depose Lucash on videotape. The assistant prosecutor presented the motion to Judge Boyko, who was the acting administrative judge. Judge Boyko granted the motion and instructed the assistant prosecutor and defense attorneys to work out a time to hold the deposition. For reasons unknown, the ruling never made it into the case docket. However, the deposition was held and Lucash's videotaped testimony was admitted in evidence at the trial.

{¶ 5} On May 8, 2012, more than ten years after he was convicted, Ervin filed a motion to vacate Judge Boyko's order granting testimony by deposition. Judge Barker denied the motion, finding that the claim was barred by res judicata and that Ervin had failed to demonstrate an abuse of discretion by Judge Boyko in granting the motion. Barker also found that there was ample evidence presented as to the finding of guilt, and therefore any error was harmless and would not have changed the outcome of the trial.

{¶ 6} Ervin filed a petition for a writ of mandamus in the Eighth District on July 24, 2012. In it, he claims that Judge Boyko's order allowing the testimony by video deposition is void and must be vacated. He asserts that the prosecuting attorneys failed to make a showing that the assigned judge was not available to rule on the motion and that Judge Boyko lacked authority to rule on the motion. He requests that the order be declared void and claims to have no adequate remedy at law.

{¶ 7} The Court of Appeals for the Eighth District dismissed the writ. That court noted that on the direct appeal of his conviction, Ervin's counsel had raised ten assignments of error, several attacking Lucash's testimony. Among these was that the trial judge erred in allowing the video deposition to be used at trial. The court of appeals overruled all the assignments of error and found that the deposition testimony was proper because the social worker would have been unavailable at trial. 2002-Ohio-4093 at ¶ 72-76.

{¶ 8} The Eighth District went on to hold that, at most, Judge Boyko's order was voidable, and not void, and that therefore Ervin had an adequate remedy at law by way of appeal after the ...


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