Court of Appeals of Ohio, Eighth District, Cuyahoga
Mandamus Motion No. 502939 Order No. 503808
RELATOR Antoinne Wynn, pro se.
ATTORNEYS FOR RESPONDENT Michael C. O'Malley Cuyahoga
County Prosecutor By: James E. Moss Owen M. Patton Assistant
JOURNAL ENTRY AND OPINION
J. STEWART, P.J.
On November 29, 2016, the relator, Antoinne Wynn, commenced
this mandamus action to compel his court-appointed appellate
attorney (1) to add Wynn's suggested assignments of error
to the appellant's brief in State v. Wynn, 8th
Dist. Cuyahoga No. 103824 ("the appeal") and (2) to
send him (Wynn) copies of all the documents and attachments
in the appeal and a copy of all the pretrial transcripts in
State v. Wynn, Cuyahoga C.P. No. CR-15-595910-A.
Wynn also "desires return of the copy to [sic] journal
entry file to Defendant's waiver of counsel form filed
but not yet endorsed upon to [sic] by the signature of the
presiding Judge on Sept. 14, 2015 * * *." (Complaint p.
9-10.) Wynn captioned his mandamus action as "State
of Ohio v. Antoinne Wynn." For the following
reasons, this court sua sponte denies the application for a
writ of mandamus.
First, Wynn improperly captioned his mandamus action, using
the caption of his criminal case. R.C. 2731.04 requires that
an application for a writ of mandamus "must be by
petition, in the name of the state on the relation of the
person applying." This failure to properly caption a
mandamus action is sufficient grounds for denying the writ
and dismissing the petition. Maloney v. Court of Common
Pleas of Allen Cty., 173 Ohio St. 226, 181 N.E.2d 270
(1962). Moreover, the failure to caption the case correctly
creates uncertainty as to the identity of the
respondent. This court has held that this deficiency
alone also warrants dismissal. State ex rel. Calloway v.
Court of Common Pleas of Cuyahoga Cty., 8th Dist.
Cuyahoga No. 71699, 1997 Ohio App. LEXIS 79452 (Feb. 27,
1997); Jordan v. Cuyahoga Cty. Court of Common
Pleas, 8th Dist. Cuyahoga No. 96013, 2011-Ohio-1813.
The requisites for mandamus are well established: (1) the
relator must have a clear legal right to the requested
relief, (2) the respondent must have a clear legal duty to
perform the requested relief, and (3) there must be no
adequate remedy at law, such as appeal. State ex rel. Ney
v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914 (1987).
Mandamus is an extraordinary remedy that is to be exercised
with caution and only when the right is clear. It should not
issue in doubtful cases. State ex rel. Taylor v.
Glasser, 50 Ohio St.2d 165, 364 N.E.2d 1 (1977);
State ex rel. Shafer v. Ohio Turnpike Comm., 159
Ohio St. 581, 113 N.E.2d 14 (1953); State ex rel. Connole
v. Cleveland Bd. of Edn., 87 Ohio App.3d 43, 621 N.E.2d
850 (8th Dist.1993).
Although mandamus should be used with caution, the court has
discretion in issuing it. In State ex rel. Pressley v.
Indus. Comm. of Ohio, 11 Ohio St.2d 141, 228 N.E.2d 631
(1967), paragraph seven of the syllabus, the Supreme Court of
Ohio ruled that "in considering the allowance or denial
of the writ of mandamus on the merits, [the court] will
exercise sound, legal and judicial discretion based upon all
the facts and circumstances in the individual case and the
justice to be done." The court elaborated that in
exercising that discretion the court should consider
the exigency which calls for the exercise of such discretion,
the nature and extent of the wrong or injury which would
follow a refusal of the writ, and other facts which have a
bearing on the particular case. * * * Among the facts and
circumstances which the court will consider are the
applicant's rights, the interests of third persons, the
importance or unimportance of the case, the applicant's
conduct, the equity and justice of the relator's case,
public policy and the public's interest, whether the
performance of the act by the respondent would give the
relator any effective relief, and whether such act would be
impossible, illegal, or useless.
11 Ohio St.2d at 161-162.
Mandamus will not lie to enforce a private right against a
private person. Id. at paragraph eight of the
syllabus. A client's seeking to obtain records from his
lawyer concerns a private right against a private person. In
State ex rel. Tierney v. Jamieson, 8th
Dist. Cuyahoga No. 80302, 2001-Ohio-4148, this court sua
sponte dismissed a criminal defendant's mandamus action
seeking to compel his attorney to provide him with copies of
the transcript and briefs in Tierney's appeal. See
also State ex rel. Rodgers v. Riley, 8th Dist.
Cuyahoga No. 79977, 2001 Ohio App.LEXIS 3631 (Aug. 9, 2001) -
sua sponte dismissal of a criminal defendant's mandamus
action seeking to compel his attorney to give him various
court records, including transcripts of certain hearings;
State ex rel. Jones v. Luskin, 8th Dist. Cuyahoga
No. 87185, 2006-Ohio-3686 - mandamus to compel attorney to
turn over all filings in underlying criminal case denied;
Booker v. Christman, 8th Dist. Cuyahoga No. 84330,
2004-Ohio-6572, and State ex rel. Grahek v.
McCafferty, 8th Dist. Cuyahoga No. 88614, 2006-Ohio-4741
- mandamus actions to compel lawyers to release case files
denied. Accordingly, Wynn's mandamus claim to compel his
appellate attorney to send him the records is not well
Similarly, the principle that mandamus will not lie to
enforce a private right against a private person also
precludes the use of mandamus to compel the appellate
attorney to include Wynn's requested assignments of error
in the brief Wynn reliance on Faretta v.
California, 422 U.S. 806, 95 S.Ct. 2525, 45
L.Ed.2d 562 (1974), is misplaced. Faretta stands for
the proposition that an individual has the right of
self-representation, not that a client can insist that an
appellate counsel include certain arguments in a brief.
Rather, in Jones v. Barnes, 463 U.S. 745, 751-752,
103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), the United States
Supreme Court upheld the appellate advocate's prerogative
to decide strategy and tactics by selecting what he thinks
are the most promising arguments out of all possible
contentions. The Court noted, "Experienced advocates
since time beyond memory have emphasized the importance of
winnowing out weaker arguments on appeal and focusing on one
central issue if possible, or at most on a few key
Finally, the court in its discretion declines to grant a writ
of mandamus for Wynn's third claim because it is
difficult to discern what relief he is seeking. To the extent
that he seeks a copy of the subject journal entry, the claim
is moot because Wynn received a copy of it as an attachment
to the prosecutor's summary judgment
motion. Scrutiny of his demand allows for other
interpretations, such as seeking a declaration that the
waiver was invalid because the judge did not sign the first
page, or that the clerk should strike it from the record
because it is invalid, or that it should be signed and then
recorded on the docket. Given this uncertainty, mandamus will
Accordingly, this court denies the application for a writ of
mandamus. Relator to pay costs. This court directs the clerk
of courts to serve all parties notice of this judgment and