[Cite as State v. Russell, 2017-Ohio-7198.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                       CLARK COUNTY

 STATE OF OHIO                                      :
                                                    :
          Plaintiff-Appellee                        :   C.A. CASE NO. 2016-CA-48
                                                    :
 v.                                                 :   T.C. NO. 09-CR-873
                                                    :
 CHRISTOPHER M. RUSSELL                             :   (Criminal Appeal from
                                                    :    Common Pleas Court)
          Defendant-Appellant                       :
                                                    :

                                               ...........

                                              OPINION

                Rendered on the ___11th ___ day of _____August_____, 2017.

                                               ...........

MEGAN M. FARLEY, Atty. Reg. No. 0088515, Assistant Prosecuting Attorney, 50 E.
Columbia Street, Suite 449, Springfield, Ohio 45502
     Attorney for Plaintiff-Appellee

CHRISTOPHER M. RUSSELL, A646718, North Central Correctional Complex, P. O. Box
1812, Marion, Ohio 43301
      Defendant-Appellant

                                              .............

DONOVAN, J.

        {¶ 1} This matter is before the Court on the Notice of Appeal of Christopher

Russell, filed August 19, 2016. Russell appeals from the July 27, 2016 denial of his

“Motion for Declaratory Judgments.” We hereby affirm the judgment of the trial court.

        {¶ 2} Russell was convicted, after a jury trial, of rape, gross sexual imposition,
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pandering obscenity involving a minor, and sexual battery.         This court affirmed his

conviction and 75-year sentence on September 21, 2012. State v. Russell, 2d Dist. Clark

No. 2011-CA-10, 2012-Ohio-4316.

       {¶ 3} Russell filed his motion on May 4, 2015, seeking a declaratory judgment from

the trial court that two prosecuting attorneys involved in his trial committed prosecutorial

misconduct.    Russell’s motion provides in part: “These judgments are needed as

evidence to restore the right to State–level appeal and as legal tools to assist in pursuing

other remedies lawfully available to the Movant. No actual relief from judgment is being

requested, only answers to the controversy of legality of the activities related to the

questions presented.” Specifically, the motion presented the following questions:

              • Did David Andrew Wilson conduct an inflammatory opening outside

       the lawful parameters of Ohio Criminal Rule 24(A)?

              • Did David Andrew Wilson establish the proper foundational

       parameters for presenting the testimony of Dr. Jim Duffee?

              • Does the expert testimony of Erica Moore, presented by David

       Andrew Wilson fall within the legal parameters of admissibility?

              • Does the confession sited in the Appeal Response by Lisa Fannin

       actually exist for the purposes of appellate review?

              • Did David Andrew Wilson remain within the legal and professional

       parameters of his office when presenting the State’s Closing?

       {¶ 4} Multiple portions of the trial transcript are attached to the motion. The

conclusion of the motion provides: “The Court is asked to note, however, that the issues

in this motion involve additional questions outside the sphere of the appellate process.
                                                                                         -3-


Lastly, it is asked that the Honorable Richard J. O’Neill recuse [sic] from this issue as he

presided over the actions of 2009-CR-0873.” The trial court denied Russell’s motion

without analysis, finding it “not well taken.”

       {¶ 5} Russell asserts two assignments of error herein. His first assignment of

error is as follows:

              THE COURT FAILED TO RULE ON A CLEAR CONTROVERSY AS

       REQUIRED UNDER O.R.C. § 2721.01 ETC[.] AND THEREBY FAILED TO

       RECOGNIZE THE CLEAR-ON-THE-RECORD ERRORS PRESENTED BY

       MR. RUSSELL CONCERNING THE CONDUCT OF DAVID ANDREW

       WILSON AND LISA FANNIN IN REGARD TO 2009-CR-0873 AND THE

       SUBSEQUENT APPEAL 2011-CA-0010.

       {¶ 6} Russell directs our attention to several sections of his trial transcript which

he asserts demonstrate prosecutorial misconduct. Russell asserts as follows:

              Mr. Russell, in his motion for declaratory judgment, clearly showed

       errors of law related to 2009-CR-0873 and requested the Clark County

       Court of Common Pleas to declare where appropriate the actions of the

       named Respondents outside the law thereby granting Mr. Russell tools

       needed to pursue remedies of law. His appellate counsel failed him by not

       bringing these errors to the attention of the Appellate Court and due to the

       unlawful nature of the legal library at LeCI [sic] could not raise in time a

       motion to reopen due to this ineffective assistance of counsel. Therefore,

       Mr. Russell needs a court to recognize the unlawfulness detailed above to

       produce a tool for use in the reopening of rights to present these issues
                                                                                         -4-


       previously denied due to issues outside of his control.

              The State’s response will likely include details of the charges against

       him, including the time of his sentence and other defamatory statements.

       Please note the declaratory judgment is a tool meant to restore the right to

       challenge the lawfulness of the trial which resulted in that conviction. While

       the conviction does have a strong presumption of correctness, the existence

       of the conviction should not be in and of itself evidence used to block the

       efforts to fight the conviction, be it direct challenges or sufficient lawful

       evidence (including the clearly cajoled statements given to police) to

       demonstrate a crime was even committed. Furthermore, he is college

       educated with two honors degrees and an [sic] Veteran who honorably

       served this nation during a time of war, defending the Constitution which

       was ignored by David Andrew Wilson during this procedure.

       {¶ 7} The State responds that “declaratory judgments may not be used to

collaterally attac[k] [Russell’s] convictions” or as a means of appellate review. We agree

with the State.

       {¶ 8} R.C. 2721.03 provides in part:

              * * * [A]ny person whose rights, status, or other legal relations are

       affected by a constitutional provision, statute, rule as defined in section

       119.01 of the Revised Code, municipal ordinance, township resolution,

       contract, or franchise may have determined any question of construction or

       validity arising under the instrument, constitutional provision, statute, rule,

       ordinance, resolution, contract, or franchise and obtain a declaration of
                                                                                            -5-


       rights, status, or other legal relations under it.

       {¶ 9} “A common pleas court generally has the power under the Declaratory

Judgments Act to ‘declare rights, status, and other legal relations,’ and its ‘declaration

has the effect of a final judgment or decree.’ R.C. 2721.02(A).” Lingo v. State, 138 Ohio

St.3d 427, 2014-Ohio-1052, 7 N.E.3d 1188, ¶ 42. “The purpose of the act is to provide

a mechanism by which parties can ‘eliminate uncertainty regarding their legal rights and

obligations’ quickly and conclusively. Mid-American Fire & Cas. Co. v. Heasley, 113 Ohio

St.3d 133, 2007-Ohio-1248, 863 N.E.2d 142, ¶ 8.” Lingo, ¶ 43. “ ‘Its basic purpose, in

essence, is to relieve parties from acting at their own peril in order to establish their legal

rights.’ ” State v. Stewart, 2d Dist. Greene No. 98-CA-116, 1999 WL 55718, *2 (Feb. 5,

1999), quoting Gray v. Willey Freightways, Inc., 89 Ohio App.3d 355, 362, 624 N.E.2d

755 (6th Dist. 1993). “A declaratory judgment action is appropriate where: (1) the action

is within the spirit of the Declaratory Judgments Act; (2) a real controversy between

adverse parties exists which is justiciable in character; and (3) speedy relief is necessary

to the preservation of rights which may be otherwise impaired or lost.” Stewart, id.,

quoting Gray, 89 Ohio App.3d at 361.

       {¶ 10} “Although the purpose of the act is to declare rights in the face of

uncertainty, it is well settled that declaratory judgment is not a proper vehicle for

determining whether rights that were previously adjudicated were properly adjudicated. *

* * .” Lingo, ¶ 44. As the Ohio Supreme Court noted, “Ohio’s Criminal Rules and statutes

provide for the direct review of criminal judgments through appeal, and collateral attacks

through post-conviction petitions, habeas corpus, and motions to vacate. * * *.” Id. “A

declaratory judgment action cannot be used as a substitute for any of these remedies. *
                                                                                          -6-

* *.” Id.; Stewart, *4 (affirming dismissal of motion for declaratory judgment where the

“alleged error made during the taking of the guilty plea and the finding of guilty is readily

apparent from the record. Therefore, the issue could, and should, have been raised on

direct appeal.”); see also Russell v. Turner, S.D. Ohio No. 3:15-cv-165, 2015 U.S. Dist.

LEXIS 66611(May 21, 2015), *3 (denying, in a habeas corpus action, Russell’s motion for

a stay pending resolution of the motion for declaratory judgment in the trial court, and

noting, “[t]his Court is aware of no Ohio authority permitting use of a declaratory judgment

request after final judgment and appeal of a criminal case to obtain findings of fact to use

in a habeas corpus case to prove such a claim. Declaratory judgment is a civil remedy

typically invoked at the outset of a civil case.”)

       {¶ 11} We conclude that Russell’s claims of prosecutorial misconduct are the

proper subject of a direct appeal (and barred by res judicata), and that his motion for

declaratory judgment is accordingly not within the spirit of R.C. 2721.03. Russell’s first

assignment of error is overruled.

       {¶ 12} Russell’s second assignment of error is as follows:

              JUDGE RICHARD O’NEILL SHOULD HAVE WITHDRAWN FROM

       THE ISSUE WHEN IT WAS CLEAR THE QUESTIONS PRESENTED DID

       REFLECT POORLY ON HIS GATE-KEEPING ABILITIES AS JUDGE IN

       2009-CR-0873.

       {¶ 13} According to Russell, “Mr. O’Neill should have shown judicial prudence by

either giving an honest hearing of the motion or removing himself from the issue when it

was clear he could not give it a fair hearing.” Russell asserts that the “judgment entry

from the Court of Common Pleas is a clear manifestation of judicial cowardice, an
                                                                                            -7-


unwillingness for a member of the court to pass judgment on a Prosecutor that may in

turn reflect poorly on his ability to control his court and ensure the rights of people brought

before him are protected.” Russell appears to suggest that the trial court’s entry is not a

final, appealable order since it does not contain findings of fact and conclusions of law,

relying in part on State ex rel. Ferrell v. Clark, 13 Ohio St.3d 3, 469 N.E.2d 843 (1984),

and State v. Mapson, 1 Ohio St.3d 217, 438 N.E.2d 910 (1982). Russell asserts that if

“this court believes the judgment entry does not demonstrate a final appealable order, Mr.

Russell ask this court, if possible, to not remand it back to the Clark County Court of

Common Pleas or at least remove Judge O’Neill from the duty of making the ruling.” The

State responds that Russell failed to comply with R.C. 2701.03.

       {¶ 14} We initially note that Russell’s reliance upon Clark and Mapson is

misplaced; those cases involve a trial court’s failure to provide findings of fact and

conclusions of law in denying a timely petition for post-conviction relief, as required by

R.C. 2953.21(H). Russell was not entitled to findings of fact and conclusions of law, and

the trial court’s entry is a final appealable order in the absence thereof.

       {¶ 15} As this Court has noted, “ ‘[t]he disqualification of a judge is an extraordinary

remedy.’ * * *. R.C. 2701.03 sets forth the procedures for seeking disqualification of a

common pleas court judge for prejudice.” State v. Qualls, 2d Dist. Montgomery No.

26423, 2015-Ohio-2182, ¶ 7. R.C. 2701.03 provides:

              (A) If a judge of the court of common pleas allegedly is interested in

       a proceeding pending before the court, allegedly is related to or has a bias

       or prejudice for or against a party to a proceeding pending before the court

       or a party's counsel, or allegedly otherwise is disqualified to preside in a
                                                                                   -8-


proceeding pending before the court, any party to the proceeding or the

party's counsel may file an affidavit of disqualification with the clerk of the

supreme court in accordance with division (B) of this section.

       (B) An affidavit of disqualification filed under section 2101.39,

2501.13, 2701.031, or 2743.041 of the Revised Code or division (A) of this

section shall be filed with the clerk of the supreme court not less than seven

calendar days before the day on which the next hearing in the proceeding

is scheduled and shall include all of the following:

       (1) The specific allegations on which the claim of interest, bias,

prejudice, or disqualification is based and the facts to support each of those

allegations or, in relation to an affidavit filed against a judge of a court of

appeals, a specific allegation that the judge presided in the lower court in

the same proceeding and the facts to support that allegation;

       (2) The jurat of a notary public or another person authorized to

administer oaths or affirmations;

       (3) A certificate indicating that a copy of the affidavit has been served

on the probate judge, judge of a court of appeals, judge of a court of

common pleas, judge of a municipal or county court, or judge of the court

of claims against whom the affidavit is filed and on all other parties or their

counsel;

       (4) The date of the next scheduled hearing in the proceeding or, if

there is no hearing scheduled, a statement that there is no hearing

scheduled.
                                                                                            -9-


       {¶ 16} “This procedure provides ‘the exclusive means by which a litigant may claim

that a common pleas judge is biased and prejudiced.’ Jones v. Billingham (1995), 105

Ohio App.3d 8, 11, 663 N.E.2d 657.” State v. Galluzzo, 2d Dist. Champaign No. 2004

CA 25, 2006-Ohio-309, ¶ 15. “A court of appeals does not have authority to rule on the

disqualification of the trial judge or to void a judgment of the trial court on that basis. * *

*.” Qualls, ¶ 8.

       {¶ 17} While Russell sought the trial court’s recusal in his motion for declaratory

judgment, he failed to follow the mandatory requirements of R.C. 2701.03. For the

foregoing reasons, Russell’s second assigned error lacks merit, and it is accordingly

overruled. The judgment of the trial court is affirmed.

       {¶ 18} Finally, we note that attached to Russell’s brief is a “Complaint Requesting

Writ of Mandamus,” as well as an April 14, 2015 Entry of the trial court, ordering the Clark

County Sheriff’s Department to release certain property to Russell or his authorized

designee that was seized pursuant to a warrant in the investigation of Russell’s offenses.

Russell’s “Complaint Requesting Mandamus” was filed separately in this Court on March

31, 2016 under Clark Cty. App. Case No. 2017 CA 35. That case was dismissed by this

Court on May 30, 2017. Accordingly, we will not address the “Complaint Requesting

Mandamus” herein.

                                          .............

WELBAUM, J. and TUCKER, J., concur.

Copies mailed to:

Megan M. Farley
Christopher M. Russell
Hon. Richard J. O’Neill
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