[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Phelps v. McClelland, Slip Opinion No. 2020-Ohio-831.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                           SLIP OPINION NO. 2020-OHIO-831
      THE STATE EX REL. PHELPS, APPELLANT, v. MCCLELLAND, JUDGE,
                                         APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as State ex rel. Phelps v. McClelland, Slip Opinion No.
                                      2020-Ohio-831.]
Mandamus—Appellant exercised adequate remedy at law by filing in trial court
        motion seeking new trial—Res judicata bars appellant’s claim, which could
        have been raised on direct appeal—Court of appeals’ judgment denying
        complaint affirmed.
  (No. 2019-0916—Submitted December 10, 2019—Decided March 10, 2020.)
      APPEAL from the Court of Appeals for Cuyahoga County, No. 108021,
                                      2019-Ohio-2448.
                                   __________________
        Per Curiam.
        {¶ 1} Appellant, Larry Phelps, appeals the Eighth District Court of Appeals’
judgment denying his complaint for a writ of mandamus to compel appellee,
                             SUPREME COURT OF OHIO




Cuyahoga County Court of Common Pleas Judge Robert McClelland, to enforce
the terms of an agreement the county prosecutor had reached with Phelps’s wife to
secure her testimony against Phelps. For the reasons explained below, we affirm.
                                  BACKGROUND
       {¶ 2} In 1993, a grand jury indicted Phelps and Laura Phelps, née Dumchas,
on multiple felony counts, including a count of aggravated murder with two death-
penalty specifications.
       {¶ 3} Before trial, the trial court determined that the state could not compel
Laura to testify against Phelps because she was his common-law wife. See State v.
Phelps, 100 Ohio App.3d 187, 652 N.E.2d 1032 (8th Dist.1995). Thereafter, Laura
entered into an agreement with the prosecutor to waive her spousal privilege and
testify against Phelps on several conditions, including that the prosecutor would
“delete the death penalty specification against Larry Phelps.” The trial court
accepted the agreement and said that it would “delete the felony murder
specifications * * * [m]aking this a straight aggravated murder without death penalty
specifications and, therefore, removing any possibility of the death penalty being
imposed against Mr. Phelps in this case.”
       {¶ 4} Laura testified against Phelps at trial. See State v. Phelps, 8th Dist.
Cuyahoga No. 69157, 1996 WL 532092, *1-2 (Sept. 19, 1996). But the jury was
instructed on and returned verdicts on the death-penalty specifications. Phelps was
convicted of multiple counts, including aggravated murder with a single capital
specification. He was sentenced to life imprisonment for the aggravated murder.
See State v. Phelps, 8th Dist. Cuyahoga No. 106735, 2018-Ohio-4709, ¶ 5-6
(detailing procedural history).
       {¶ 5} In 1996, the Eighth District Court of Appeals affirmed Phelps’s
convictions. Phelps, 1996 WL 532092, appeal not accepted, 80 Ohio St.3d 1411,
684 N.E.2d 704 (1997). Phelps did not raise any argument regarding Laura’s




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agreement with the prosecutor on direct appeal, nor did he do so during the next 20
years in any of his subsequent efforts to challenge his convictions and sentence.
         {¶ 6} In November 2017, Phelps filed a “motion for specific enforcement”
in the trial court, arguing for the first time that he was entitled to a new trial because
the state breached its agreement with Laura. The trial court denied the motion and
the Eighth District affirmed, holding that Phelps’s argument was barred by the
doctrine of res judicata. Phelps, 2018-Ohio-4709, at ¶ 48-49. The court of appeals
explained that Phelps “was, or should have been aware of [Laura’s] agreement and
the state’s purported breach thereof at the time of his 1995 trial” yet failed to raise
the issue in his direct appeal. Id. at ¶ 42.
         {¶ 7} In December 2018, Phelps filed a complaint for a writ of mandamus
in the Eighth District, seeking to compel Judge McClelland “to enforce the specific
terms of the contract entered into by Laura Phelps and the Cuyahoga County
Prosecutor’s Office, to which [Larry Phelps] is the intended beneficiary.”
         {¶ 8} The court of appeals granted Judge McClelland’s motion for summary
judgment, holding that Phelps was not entitled to mandamus relief because he had
an adequate remedy at law and because Phelps’s claim was barred by the doctrine
of res judicata. 2019-Ohio-2448, ¶ 15-17.
         {¶ 9} Phelps appealed, and the case is fully briefed.
                                          ANALYSIS
         {¶ 10} As his sole proposition of law, Phelps asserts that the Eighth District
deprived him of his constitutional rights to trial by jury and due process of law by
granting summary judgment to Judge McClelland “on the basis of available adequate
remedy, res judicata, and harmless error.”1




1. The court of appeals’ opinion does not mention or analyze “harmless error.” Phelps appears to
take issue with the Eighth District’s harmless-error analysis in an earlier decision, see 2018-Ohio-
4709, at ¶ 43, 46, which is not the subject of this appeal.




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       {¶ 11} This court reviews the grant of summary judgment in a mandamus
action de novo. State ex rel. Manley v. Walsh, 142 Ohio St.3d 384, 2014-Ohio-
4563, 31 N.E.3d 608, ¶ 17. Summary judgment is proper “when an examination of
all relevant materials filed in the action reveals that ‘there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of
law.’ ” Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954,
¶ 12, quoting Civ.R. 56(C). To prevail in his mandamus action, Phelps would have
to establish, by clear and convincing evidence, (1) a clear legal right to the
requested relief, (2) a clear legal duty on the part of Judge McClelland to provide
it, and (3) the lack of an adequate remedy in the ordinary course of the law. State
ex rel. Love v. O’Donnell, 150 Ohio St.3d 378, 2017-Ohio-5659, 81 N.E.3d 1250,
¶ 3.
       {¶ 12} Phelps first disputes the court of appeals’ conclusion that he had an
adequate remedy in the ordinary course of the law. A defendant may appeal a
conviction on the grounds that the prosecutor breached an agreement. See, e.g.,
State v. Moore, 7th Dist. Mahoning No. 06-MA-15, 2008-Ohio-1190, ¶ 31-32, 169
(agreement not to prosecute); State v. Morrison, 5th Dist. Muskingum No. CT2014-
0042, 2015-Ohio-2018, ¶ 10-15 (plea agreement). And Phelps either was or should
have been aware of Laura’s agreement with the prosecutor at the time of his direct
appeal. Indeed, the Eighth District’s decision in Phelps’s direct appeal makes it
clear that the appellate record contained evidence of the agreement. See State v.
Phelps, 1996 WL 532092, at *2 (describing Laura’s immunity agreement and the
prosecutor’s promise “to drop the death penalty specifications against [Phelps]”).
       {¶ 13} But even if Phelps could not have raised this argument on direct
appeal, he still had an adequate legal remedy by which to rectify the alleged breach
of Laura’s agreement “ ‘by filing a motion with the sentencing court to * * *
specifically enforce the agreement,’ ” State ex rel. Duran v. Kelsey, 106 Ohio St.3d
58, 2005-Ohio-3674, 831 N.E.2d 430, ¶ 5, quoting State ex rel. Seikbert v.




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Wilkinson, 69 Ohio St.3d 489, 491, 633 N.E.2d 1128 (1994) (analyzing alleged
breach of plea agreement). And he exercised that remedy in 2017 when he filed his
motion for specific enforcement. The trial court denied the motion, and the Eighth
District affirmed the trial court’s judgment. When “a plain and adequate remedy at
law has been unsuccessfully invoked, a writ of mandamus will not lie
to relitigate the same issue.” State ex rel. Sampson v. Parrott, 82 Ohio St.3d 92,
93, 694 N.E.2d 463 (1998).
          {¶ 14} The court of appeals also correctly determined that Phelps’s claim is
barred by the doctrine of res judicata. “[U]nder the doctrine of res judicata, an
existing final judgment or decree binding the parties is conclusive as to all claims
that were or could have been litigated in a first lawsuit. * * * Res judicata requires
a plaintiff to present every ground for relief in the first action or be forever barred
from asserting it.” State ex rel. Robinson v. Huron Cty. Court of Common
Pleas, 143 Ohio St.3d 127, 2015-Ohio-1553, 34 N.E.3d 903, ¶ 8. Phelps could
have raised his breach-of-agreement argument on direct appeal in 1995. And, as
discussed, he fully litigated the issue in 2017 by filing a motion for specific
performance. Accordingly, res judicata bars him from raising the claim again in
this mandamus action.
          {¶ 15} For these reasons, we reject Phelps’s arguments and affirm the
judgment of the court of appeals.
                                                                  Judgment affirmed.
          O’CONNOR, C.J., and FRENCH, FISCHER, DEWINE, and DONNELLY, JJ.,
concur.
          KENNEDY, J., concurs in judgment only.
          STEWART, J., not participating.
                                  _________________
          Larry Phelps, pro se.




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       Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and James
E. Moss, Assistant Prosecuting Attorney, for appellee.
                              _________________




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