Court of Appeals of Ohio, Eighth District, Cuyahoga
MARVIN F. JOHNSON, SR. Plaintiff-Appellant,
GREGORY SCOTT ROBEY Defendant-Appellee.
Appeal from the Cuyahoga County Court of Common Pleas Case
F. Johnson Sr., pro se.
Reminger Co., L.PA., Andrew J. Dorman, and Aaren R. Host, for
JOURNAL ENTRY AND OPINION
EILEEN KILBANE, PRESIDING JUDGE
1} Plaintiff-appellant, Marvin F. Johnson, Sr.
("Johnson"), pro se, appeals the trial court's
decision granting defendant-appellee's, Gregory
Robey's ("Robey"), motion for judgment on the
pleadings and dismissing Johnson's legal malpractice
claim. For the reasons set forth below, we affirm.
2} In April 2015, Johnson was indicted on one count
each of drug trafficking, drug possession, and possession of
criminal tools. Johnson rejected the state's offer of a
two-year prison sentence and subsequently filed a motion to
suppress evidence discovered through the execution of a
search warrant. Johnson alleged the search warrant contained
material falsehoods, lacked probable cause, and was thus
invalid. In December 2015, the trial court conducted a
hearing and denied the motion to suppress. Thereafter,
Johnson pleaded no contest to the charges, and was found
3} In May 2016, the trial court sentenced Johnson to
a prison term of six years. The trial court placed Johnson,
who suffers from a heart condition known as
Wolff-Parkinson-White syndrome, on supervised release and
electronic home detention, to allow Johnson to undergo heart
surgery in July 2016. The trial court ordered Johnson to
report to jail no later than August 1, 2016. In the interim,
Johnson was to remain on bond.
4} In July 2016, Johnson requested appointed
counsel. The trial court assigned Johnson appellate counsel,
but then vacated its assignment because Johnson was not
indigent and had retained counsel throughout the proceedings.
In the same month, the trial court scheduled a bond hearing
because Johnson reportedly tested positive for marijuana.
Johnson did not appear for the bond hearing and alleged that
he was still recovering from heart surgery, but the court was
not informed. The trial court revoked Johnson's bond and
issued a capias. Johnson, who claims he was under
post-surgical care, failed to report to prison and failed to
inform the trial court of his status.
More than seven months later, in February 2017, Johnson
turned himself in and the trial court resentenced him to
eight years in prison. Johnson timely appealed his
conviction. There, Johnson argued that the trial court erred
in denying the motion to suppress, erred in imposing an
eight-year prison sentence and erred in resentencing him to
eight years after initially sentencing him to six years. He
also argued that his trial counsel was ineffective for not
objecting to the increased prison term and to the issuance of
a capias for failure to appear in court due to medical
6} In State v. Johnson, 8th Dist. Cuyahoga
No. 105560, 2018-Ohio-169, we affirmed the trial court's
denial of the motion to suppress. We reversed the trial
court's imposition of an eight-year prison sentence after
initially imposing a six-year prison sentence. We remanded
the matter for the limited purpose of executing the original
six-year prison sentence.
7} In February 2019, Johnson filed a legal
malpractice complaint against Robey, whom he had retained for
his direct appeal. The complaint alleged that the state's
attorney briefed and argued from exhibits that were deemed
inadmissible by the trial court and that Robey failed to put
forth any defense. The complaint also alleged that the
state's attorney filed inadmissible exhibits in this
court and that Robey failed to file a motion to strike those
exhibits. In addition, the complaint alleged that in
Johnson's direct appeal, this court considered evidence
contained in the inadmissible exhibits in reaching its
decision, and that Robey failed to bring that to this
court's attention in his motion for reconsideration.
8} In March 2019, after being served with
Johnson's complaint on February 26, 2019, Robey motioned
the court for a two-day extension and for leave to file his
answer instanter. Robey informed the court that he had
retained counsel that afternoon. The trial court granted the
motion and deemed Robey's answer filed instanter.
9} In April 2019, Johnson filed a motion for default
judgment, which the trial court struck as being improperly
filed. In the same month, Johnson also filed a motion in
opposition to Robey's answer and a motion to strike the
answer. The trial court struck both motions as improper
10} Subsequently, Robey filed a motion for judgment
on the pleadings. Robey asserted that Johnson could not state
a prima facie claim for legal malpractice because he could
not demonstrate that Robey's failure to object to the
state's submission of inadmissible exhibits into the
appellate record caused injury. On May 17, 2019, ...