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Leavell v. Wilson

Court of Appeals of Ohio, Sixth District, Erie

March 31, 2017

Douglas Leavell Relator
v.
Luvada S. Wilson Respondent

          Douglas Leavell, pro se.

          DECISION AND JUDGMENT

          PIETRYKOWSKI, J.

         {¶ 1} This matter is before the court on relator's, Douglas Leavell, petition for a writ of mandamus to compel respondent, Luvada Wilson, the Clerk of Courts for the Erie County Court of Common Pleas, to time-stamp and assign a case number to his "Affidavit Charging the Offense Committed, " and to follow proper procedure for such an affidavit under R.C. 2935.09 and 2935.10. Because Leavell cannot establish that he has a clear legal right to the requested relief, we sua sponte dismiss his petition.

         I. Introduction

         {¶ 2} The facts alleged in the petition and attached materials are as follows. Near the end of August 2016, Leavell filed with the Erie County Court of Common Pleas an affidavit pursuant to R.C. 2935.09 charging that Detective Dana Newell committed perjury in a hearing involving Leavell. The clerk's office did not time-stamp Leavell's affidavit or assign it a file or case number. Rather, the clerk's office referred the affidavit to the prosecutor's office, and the prosecutor's office referred it to a special prosecutor from Ottawa County to avoid a conflict.

         {¶ 3} The special prosecutor investigated the charges in Leavell's affidavit, and concluded that criminal prosecution was not warranted and no complaint should be filed. Specifically, Leavell alleged that Newell made false statements regarding a drug offense being committed in the vicinity of a school. Leavell determined that the enhancement of committing the drug offense near a school was the determining factor that prompted the trial court to order the forfeiture of Leavell's 2003 Chevy Avalanche. On the contrary, the special prosecutor found that while Newell did mention a school in his testimony, "a close reading of this passage (and indeed the rest of Detective Newell's testimony) yields no testimony about the proximity of the drug offense to a school." Furthermore, the special prosecutor noted that the trial court's concern at the forfeiture hearing was not the location or the degree of the drug offense, but rather its concern was limited to whether or not there was a felony offense. As support, the special prosecutor pointed to the absence of any mention of a school zone in the trial court's judgment entry.

         {¶ 4} In declining to pursue criminal charges against Newell, the special prosecutor cited the perjury statute, R.C. 2921.11, which states that "[n]o person, in any official proceeding, shall knowingly make a false statement under oath or affirmation, or knowingly swear or affirm the truth of a false statement previously made, when either statement is material." The special prosecutor reasoned that there was no evidence of false testimony, and even if false testimony is assumed, the trial court's decision is clear that the testimony would not have been material.

         {¶ 5} In his petition for a writ of mandamus, Leavell now seeks an order compelling Wilson to follow the procedures required under R.C. 2935.09 and 2935.10, and to comply with her duties under R.C. 2303.08.

         II. Analysis

         {¶ 6} A writ of mandamus is an extraordinary remedy. Generally, to be entitled to a writ of mandamus, a relator must establish (1) a clear legal right to the relief requested, (2) a clear legal duty to perform the requested act on the part of the respondent, and (3) that the relator has no plain and adequate remedy in the ordinary course of law. State ex rel. Manson v. Morris, 66 Ohio St.3d 440, 441, 613 N.E.2d 232 (1993). "Sua sponte dismissal without notice is warranted when a complaint is frivolous or the claimant obviously cannot prevail on the facts alleged in the complaint." State ex rel. Cincinnati Enquirer v. Ronan, 124 Ohio St.3d 17, 2009-Ohio-5947, 918 N.E.2d 515, ¶ 3.

         {¶ 7} We will begin with Leavell's request under R.C. 2935.09 and 2935.10.

         {¶ 8} R.C. 2935.09 pertains to accusations by affidavit to cause an arrest or prosecution. Subsection (D) of that section provides,

A private citizen having knowledge of the facts who seeks to cause an arrest or prosecution under this section may file an affidavit charging the offense committed with a reviewing official for the purpose of review to determine if a complaint should be filed by the prosecuting attorney or attorney charged by law with the prosecution of offenses in the court or before the magistrate. A private citizen may file an affidavit charging the offense committed with the clerk of a court of record before or after the normal business hours of the reviewing officials if the clerk's office is open at those times. A clerk who receives an affidavit before or after the normal business hours of the reviewing officials shall forward it to a reviewing official when the reviewing official's normal business hours resume. R.C. 2935.09(D).

         For purposes of the statute, "a reviewing official" means "a judge of a court of record, the prosecuting attorney or attorney charged by law with the prosecution of offenses in a court or before a ...


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