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Johnson v. Robey

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 2, 2020

MARVIN F. JOHNSON, SR. Plaintiff-Appellant,
GREGORY SCOTT ROBEY Defendant-Appellee.

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-19-911472


          Marvin F. Johnson Sr., pro se.

          Reminger Co., L.PA., Andrew J. Dorman, and Aaren R. Host, for appellee.



         {¶ 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 guilty.

         {¶ 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.

         {¶5} 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 reasons.

         {¶ 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 pleadings.

         {¶ 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, ...

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