Court of Appeals of Ohio, Eighth District, Cuyahoga
of Mandamus Motion No. 525648 Order No. 528279
Phelps, pro se.
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and James E. Moss, Assistant Prosecuting Attorney,
JOURNAL ENTRY AND OPINION
T. GALLAGHER, P.J.
1} On December 24, 2018, the relator, Larry Phelps,
commenced this mandamus action against the respondent, Judge
Robert McClelland, to compel "the trial court to enforce
the specific terms of the contract entered into by Laura
Phelps and the Cuyahoga County Prosecutor's Office, to
which he (Larry Phelps) is the intended beneficiary."
The relator argues that in the underlying case, State v.
Phelps, Cuyahoga C.P. No. CR-93-296965, his common-law
wife entered into a plea agreement under which she would
testify against him in exchange for immunity and deleting the
two capital specifications on his indictment. Nevertheless,
the two specifications were presented to the jury, which
found him guilty of the second specification causing him to
be sentenced to life imprisonment. On February 14, 2019, the
respondent judge, through the Cuyahoga County Prosecutor,
moved for summary judgment, inter alia, on the grounds of
adequate remedy at law and res judicata. Relator filed his
brief in opposition on March 4, 2019. For the following
reasons, this court grants the judge's motion for summary
judgment and denies the application for a writ of mandamus.
and Procedural Background
2} In 1985, Laura Phelps was working as a
prostitute, and relator was her pimp. On August 26, 1985,
Merle Johnston solicited her for sex but did not have any
money. Nevertheless, he followed her home. Shortly after
that, she saw Johnston in their home and talking to relator.
She saw relator hit Johnston who fell down. The next day she
saw Johnston, still alive, in their basement. Relator
instructed him to place a bag over his head or around his
eyes so that he could not see where they were taking him. She
then saw relator assault him again. Relator then put him in
the trunk of their car, drove to Pennsylvania with her, and
disposed of the body. Subsequently, the police ticketed Laura
Phelps for an illegal U-turn while she was driving
3} In 1988, after relator beat Laura Phelps, she
told the police about the August 1985 incident. Nevertheless,
the police did not believe her. In November 1988, the
Pennsylvania state police discovered the skeletal remains of
a man in a remote rural area near Erie, Pennsylvania.
Subsequent investigations revealed the man to be Merle
Johnston who had severe fractures in the sternum, ribs,
jawbone, and other parts of the skull.
4} In March 1993, Laura Phelps gave a written
statement to the police with her lawyer present, recounting
the events of August 1985 and the assault on Merle Johnston.
The grand jury indicted both relator and her for the
aggravated murder of Johnston. The indictment charged relator
with (1) aggravated murder with two capital felony murder
specifications for aggravated robbery and kidnapping, (2)
aggravated robbery, and (3) kidnapping.
5} During pretrial proceedings, the trial court
ruled that a common-law marriage existed between Laura Phelps
and relator and that under Evid.R. 601 she may elect not to
testify. This court affirmed this ruling in State v.
Phelps, 100 Ohio App.3d 187, 652 N.E.2d 1032 (8th
Dist.1995) ("Phelps I"). Because Laura
Phelps was indicating that she would not testify, the state
and Laura Phelps entered into an immunity agreement under
which the state would dismiss the indictment in the
underlying case against her, seek a grant of immunity for her
for the murder of Merle Johnston, the homicide of Danny
Atkins, and an alleged arson, and would "delete the
death penalty specification against Larry Phelps." In
return, she would testify truthfully in the underlying case
and waive any and all spousal privileges in connection with
6} During the trial of the underlying case, Laura
Phelps testified as indicated above. Additionally, the state
presented other evidence collaborating relator's murder
of Johnston. One of Johnston's friends testified that he
went drinking with Johnston that night and that Johnston said
he was going hunting for a prostitute. Johnston's mother
testified that she last saw her son on August 26, 1985, and
that several days later, she received a credit card statement
with a dishonored check for $350 made out to "Larry
7} On May 25, 1995, the jury convicted relator of
aggravated murder and the second specification for
kidnapping, as well as the counts for aggravated robbery and
kidnapping. The trial judge immediately imposed a term of
life imprisonment for Count 1, and terms of 10 to 25 years on
each of the robbery and kidnapping counts, all consecutive.
8} In the direct appeal, State v. Phelps,
8th Dist. Cuyahoga No. 69157, 1996 Ohio App. LEXIS 4067
("Phelps II"), this court noted that Laura
Phelps testified after being granted immunity and that the
state also agreed to drop the death penalty specifications
against relator. This court affirmed the conviction after
overruling assignments of error on manifest weight,
prosecutorial misconduct, admitting other acts evidence,
ineffective assistance of trial counsel, lack of territorial
jurisdiction, and improper venue.
9} Since 1996, relator has made multiple attempts to
vacate his convictions. In 2009, the trial court entertained
a motion for new trial based on newly discovered evidence
that in 1988 the police hypnotized Laura Phelps to obtain a
better recollection of what happened in August 1985. The
trial court denied the motion for new trial, and this court
affirmed. State v. Phelps,192 Ohio App.3d 484,
2011-Ohio-706, 949 N.E.2d 567 (8th Dist.) ("Phelps
III"). In October 2014, relator filed a second
motion for new trial based on newly discovered evidence, in
which he presented an affidavit, which stated that another
man killed Johnston. The trial court denied the motion
because the ...