Opinion
No. 108484
12-03-2019
STATE OF OHIO, EX REL., MARY SEAWRIGHT, Relator, v. JUDGE JOSEPH D. RUSSO, Respondent.
Appearances: 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 JUDGMENT: WRIT GRANTED IN PART AND DENIED IN PART Writ of Mandamus
Motion No. 532381
Order No. 533426
Appearances:
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. EILEEN A. GALLAGHER, J.:
{¶ 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 $3,581.42. 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 key to my office. Only he and I had it.
On the 25th, when I came into my office, everything was turned upside down everywhere. I had witnesses that came in and saw this. I called Mr. Barnes because only he and I had keys. He denied it.
I'm telling you, as sure as I'm standing here and God is a witness, this man and everybody that is speaking for him, he's not what he is pretending to be. He is involved in my things being stolen.
I went online. I had all these tools. I went online and got the prices for these tools that was missing. All of the keys to all of the properties was taken. All of the keys. I couldn't believe that. Every key.
I had to go out and buy those locks and call those people. I was scared to death. And I could not believe that this man did something like that.
And these people are here to say that he is such a great man. He is not a great man. And I heard his lawyer say you don't have to worry about this. This is the last thing that you have to worry about.
It is — it's a disgrace. It's a disgrace. And I am not lying, but he is. He is lying. He did that. He violated me. He stole my stuff.
THE COURT: Thank you ma'am.
THE VICTIM: Thank you.
THE COURT: Anything further on behalf of State?
PROSECUTOR: No. The State previously provided the Court with the paperwork for the restitution and a letter from the victim, so I wanted to place that on the record. Defense counsel saw that, and the Court is in possession of that.
THE COURT: Correct.
DEFENSE COUNSEL: Thanks, your Honor. We're not here to try the restitution case, your Honor, but she is talking about the keys and she had to change the locks.Tr. 9 - 12.
Well, the receipts she gave were for like four months prior to her even meeting Mr. Barnes. All of this stuff, nothing was ever mentioned in the police report.
There is an alleged gun. We don't have a receipt for the value of the gun. I think this is a civil matter as far as restitution, and I would respectfully request this Court to leave that as a civil matter and let them handle that as they may.
THE COURT: Thank you. The Court will sentence you to time served, costs waived. Defendant ordered released.
DEFENSE COUNSEL: Thank you, your Honor.
THE DEFENDANT: Thank you, your Honor.
{¶ 5} At the conclusion of the sentencing hearing, Barnes was sentenced to time served. However, Judge Russo did not announce any decision with regard to restitution. On April 24, 2019, Seawright filed her complaint for a writ of mandamus. On May 23, 2019, Judge Russo issued a nunc pro tunc journal which provided that:
Restitution hearing held. Mr. Williams, counsel for the defendant, and victim addressed the court about restitution. Assistant prosecuting attorney Kristen Hatcher provided the court with paper and a letter from the victim in support of restitution.
{¶ 6} The nunc pro tunc order recited what had transpired during the sentencing hearing, but did not indicate if restitution was to be granted to Seawright. On September 30, 2019, Judge Russo filed a Civ.R. 56(C) motion for summary judgment. On October 15, 2019, Seawright file a brief in opposition to Judge Russo's motion for summary judgment.
II. Mandamus Requirements and Analysis
{¶ 7} Seawright, in order to be entitled to a writ of mandamus, must demonstrate that: (1) she possesses a clear legal right to restitution as a result of the plea of guilty and sentence imposed upon Barnes in CR-17-623256; (2) Judge Russo possesses a clear duty to award Seawright restitution in CR-17-623256; and (3) Seawright possesses no plain and adequate remedy in the ordinary course of the law. State ex rel. Kerns vs. Simmers, 153 Ohio St.3d 103, 2018-Ohio-256, 1010 N.E. 3d 430; State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28, 451 N.E.2d 225 (1983).
{¶ 8} Article I, § 10a(A)(7) of the Ohio Constitution provides that the victim of a criminal offense is entitled "to full and timely restitution from the person who committed the criminal offense or delinquent act against the victim." Article I, § 10a(D) defines a victim as "a person against whom the criminal offense or delinquent act is committed or who is directly and proximately harmed by the commission of the offense or act."
{¶ 9} Based solely upon the facts pertinent to this original action, we find that Seawright has established that she is entitled to a writ of mandamus. Seawright has established that: (1) Seawright may be entitled to restitution; (2) Judge Russo is required to determine whether Seawright is entitled to restitution; and (3) Seawright possesses no other adequate remedy in the ordinary course of the law.
{¶ 10} Pursuant to Article I, § 10a(A)(7) of the Ohio Constitution, Seawright may be entitled to restitution. We indicate that Seawright may be entitled to restitution. Mandamus, however, may not be used to control the judicial discretion of Judge Russo in deciding the actual amount of restitution. Mandamus may be used to compel a court to exercise judgment or to discharge a function, it may not control judicial discretion, even if that discretion is grossly abused. State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914 (1987). Moreover, mandamus is an extraordinary remedy that is to be exercised with caution and only when the right is clear. It should not issue in doubtful cases. State ex rel. Taylor v. Glasser, 50 Ohio St.2d 165, 364 N.E.2d 1 (1977); and State ex rel. Connole v. Cleveland Bd. of Edn., 87 Ohio App.3d 43, 621 N.E.2d 850 (8th Dist.1993). Mandamus will not permit this court to require Judge Russo to grant restitution in the sought amount of $3,581.42.
It is puzzling to the court that Seawright seeks restitution in the amount of $3,581 when Barnes plead guilty to Count 3 (petty theft), which specified the theft of a single item; a nail gun. Count 2 (grand theft), which specified the theft of a 9mm Smith & Wesson handgun, was nolled. --------
{¶ 11} Pursuant to Article I, § 10a(A)(7) of the Ohio Constitution, Judge Russo is required to determine whether Seawright is entitled to restitution. The determination of the amount of restitution can be based upon the testimony and evidence taken during Barnes' original sentencing hearing and/or based upon an additional hearing that involves supplemental testimony and evidence. See R.C. 2929.18. See also State ex rel. Winfree v. McDonald, 147 Ohio St.3d 428, 2016-Ohio-8098, 66 N.E.3d 739, wherein the Supreme Court of Ohio held that:
As the court of appeals observed, had the trial court elected to correct, rather than omit, the flawed restitution order included in the original judgment entry of conviction, it would have been required to hold a resentencing hearing for the limited purpose of determining and imposing a specific amount of restitution. See R.C. 2929.18(A)(1). Thus, any error by the trial court in arriving at the new judgment is a matter for direct appeal.Id. at ¶ 12.
{¶ 12} Finally, Judge Russo's argument that Seawright possesses an adequate remedy in the ordinary course of the law, by simply requesting a hearing to determine restitution, does not constitute an adequate remedy. An adequate remedy in the ordinary course of the law is one that is complete, beneficial, and speedy. State ex rel. Kerns, 153 Ohio St.3d 103, 2018-Ohio-256, 101 N.E.3d 430; State ex rel. Natl. Elec. Contrs. Assn., Ohio Conference v. Ohio Bur. of Emp. Servs., 83 Ohio St.3d 179, 699 N.E.2d 64 (1998). Seawright has already requested Judge Russo order restitution, but said request has not resulted in any judgment that she is entitled to restitution and/or an amount of restitution.
III. Conclusion
{¶ 13} Seawright is entitled to a writ of mandamus in part. A writ of mandamus is granted to Seawright that requires Judge Russo to determine, based upon the testimony and evidence adduced at Barnes' sentencing hearing and/or the taking of supplemental testimony and evidence, whether Seawright is entitled to restitution and the amount of restitution. A writ of mandamus, in order to compel Judge Russo to order restitution in the amount of $3,581.42, is denied.
{¶ 14} Accordingly, we deny Judge Russo's motion for summary judgment. Costs to both parties. The court directs the clerk of courts to serve all parties with notice of this judgment and the date of entry upon the journal as required by Civ.R. 58(B).
{¶ 15} Writ granted in part and denied in part. /s/_________
EILEEN A. GALLAGHER, JUDGE LARRY A. JONES, SR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR