Douglas Leavell, pro se.
DECISION AND JUDGMENT
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.
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.
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
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).
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 ...