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State Ex rel. Seawright v. Russo

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 3, 2019

STATE OF OHIO, EX REL., MARY SEAWRIGHT, Relator,
v.
JUDGE JOSEPH D. RUSSO, Respondent.

          Writ of Mandamus Motion No. 532381 Order No. 533426

          Ohio Crime Victim Justice Center and Elizabeth Well, for relator.

          McCarthy, Lebit, Crystal & Liffman Co., L.P.A., Robert T. Glickman, and Frank George, for respondent

          JOURNAL ENTRY AND OPINION

          EILEEN A. GALLAGHER, JUDGE

         {¶ 1} Mary Seawright has filed a complaint for a writ of mandamus in order to compel Judge Joseph D. Russo to order restitution in State v. Barnes, Cuyahoga C.P. No. CR-17-623256-A. Seawright, as the victim of a crime, argues that pursuant to Article I, Sec. 10a(A)(7) of the Ohio Constitution she is entitled to a writ of mandamus that orders Judge Russo to "reopen sentencing in [CR-17-623256] to amend its unlawful sentence, which denied [Seawright] her constitutionally guaranteed order of restitution." Specifically, Seawright seeks restitution in the amount of $3, 58142. Judge Russo has filed a Civ.R 56(C) motion for summary judgment that is denied. Seawright's request for a writ of mandamus is granted in part and denied in part.

         I. Facts

         {¶ 2} On December 5, 2017, Frederick E. Barnes was indicted by a Cuyahoga County Grand Jury for three counts: 1) Count 1 - breaking and entering (R.C. 2911.13(A)) - "did, by force, stealth, or deception, trespass, as defined in section 2911.21(A)(1) of the Revised Code, in an unoccupied structure, the property of Mary H. Seawright, with the purpose to commit therein any theft offense, as defined in Section 2913.01 and 2913.02 of the Revised Code"; 2) Count 2 - grand theft (R.C. 2913.02(A)(1)) - "did with purpose to deprive the owner, Mary H. Seawright, of 9mm Smith & Wesson handgun or services, knowingly obtain or exert control over either the property or services without the consent of the owner or person authorized to give consent and the property stolen is firearm or dangerous ordnance"; and 3) Count 3 - petty theft (R.C. 2913.02(A)(1)) - "did with purpose to deprive the owner, Mary H. Seawright, of nail gun or services, knowingly obtain or exert control over either the property or services without the consent of the owner or person authorized to give consent and the property or services stolen is valued at less than $1, 000."

         {¶ 3} On October 30, 2018, Barnes entered a plea of guilty to attempted breaking and entering (R.C. 2923.02/2911.13), as amended in Count 1, and petty theft (R.C. 2913.02(A)(1)), as charged in Count 3. Count 2 of the indictment, that charged Barnes with the theft of a firearm, was nolled.

         {¶ 4} On November 15, 2018, the trial court conducted a sentencing hearing during which the issue of restitution was addressed:

Prosecutor: Your Honor, regardless of the Defendant's volunteer work or his charitable contributions, the focus is on the restitution.
Under Criminal Rule 11, there was a full factual admission to theft. He pled guilty to that.
Under 2929.18 the victim is entitled to restitution in an amount based on her economic loss. She's here today. She can talk to the Court about her economic loss. But, again, the focus is on the restitution. The theft has been admitted to.
So we ask the Court to hear from the victim, and she can explain to you how much loss she has suffered.
THE COURT: Sure. If you would step aside. I ask the victim to come forward to the podium, identify yourself for the record, and state whatever you would like to for the Court's consideration. And I ask that you speak directly to me as opposed to him.
THE VICTIM: Mary H. Seawright. And, your Honor, everything that I said is true. And I want to correct one thing that Mr. Barnes said. He said my grandson was convicted of shooting someone. My grandson went to jail, but he did not shoot anyone and that is in the record.
Mr. Barnes, I had ever intentions, every intentions, of having my office be a part of this prison ministry. I do have a burden for young people. And I gave Mr. Barnes the ...

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