Opinion
No. 88-784
Submitted July 27, 1988 —
Decided October 19, 1988.
Mandamus — No clear legal duty to sign App. R. 9(C) narrative statement of evidence when transcript exists.
APPEAL from the Court of Appeals for Cuyahoga County, No. 55015.
On January 29, 1986, Floyd J. Hull, relator-appellant, was convicted of felonious assault, kidnapping, and rape. Hull challenged his convictions in the Court of Appeals for Cuyahoga County (case No. 51853), arguing, inter alia, that the state had employed peremptory challenges to exclude all blacks from his jury and that it had thereby violated his right to an impartial jury under Batson v. Kentucky (1986), 476 U.S. 79. The appellate court overruled this challenge and affirmed the convictions because the record did not contain a transcription of the voir dire proceedings or any indication of the race of the venirepersons. Moreover, the court concluded the issue had not been properly preserved for review.
Hull then filed a motion for new trial, or, in the alternative, for correction of the record in the Court of Common Pleas of Cuyahoga County. On June 22, 1987, Judge Patricia Anne Gaughan, a respondent-appellee herein, denied Hull's motion without conducting a hearing.
Hull also appealed this decision to the court of appeals (case No. 54490). At the same time, on September 18, 1987, it seems that he presented Judge Gaughan with a "Statement of the Evidence and Proceedings," purportedly pursuant to App. R. 9(C). The statement contained Hull's version of the facts leading to his conviction and of the proceedings that ensued thereafter. Hull alleges that in October 1987, Judge Gaughan deferred a ruling on the statement to the original trial judge, Robert E. Feighan, a named respondent-appellee, and that Judge Feighan thereafter referred the matter back to Judge Gaughan. Hull further alleges that neither Gaughan nor Feighan has approved this statement to date.
As a result, Hull petitioned the court of appeals for a writ of mandamus or, in the alternative, for a writ of procedendo, as well as for corresponding alternative writs. The petitions requested that either Gaughan or Feighan be ordered to sign Hull's App. R. 9(C) statement. The appellate court dismissed Hull's petitions for two reasons: first, Hull's conviction had already been affirmed by that court in case No. 51853 and that decision had not been reversed; and second, a transcript of the proceedings in case No. 51853 existed, such that App. R. 9(C) did not apply.
The cause is now before this court upon an appeal as of right.
Floyd J. Hull, pro se. John T. Corrigan, prosecuting attorney, and George J. Sadd, for appellees.
In order for either mandamus or procedendo to issue, appellant must establish a clear legal right to the relief requested. State, ex rel. Natl. Broadcasting Co., v. Cleveland (1988), 38 Ohio St.3d 79, 80, 526 N.E.2d 786, 787 (mandamus); State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 29, 6 OBR 50, 50-51, 451 N.E.2d 225, 226 (mandamus); State, ex rel. Smith, v. Friedman (1970), 22 Ohio St.2d 25, 51 O.O. 2d 41, 257 N.E.2d 386, paragraph two of the syllabus (procedendo); State, ex rel. Ratliff, v. Marshall (1972), 30 Ohio St.2d 101, 102, 59 O.O. 2d 114, 115, 282 N.E.2d 582, 584 (procedendo).
This court has held that where a verbatim transcript of proceedings exists and there is no allegation that one cannot be provided, there is no clear duty to sign a narrative statement supplied pursuant to App. R. 9(C). State, ex rel. Corona, v. Harris (1980), 63 Ohio St.2d 95, 17 O.O. 3d 58, 406 N.E.2d 1120. Indeed, the rule itself makes this plain. It provides that such statements are proper only "[i]f no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable * * *."
Accordingly, the court of appeals' decision dismissing the petitions in mandamus and procedendo must be affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.