[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Thomas v. Gaul, Slip Opinion No. 2020-Ohio-3257.]




                                           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-3257
    THE STATE EX REL. THOMAS, APPELLANT, v. GAUL, JUDGE, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
          may be cited as State ex rel. Thomas v. Gaul, Slip Opinion No.
                                     2020-Ohio-3257.]
Mandamus—Inmate’s claims challenging his convictions barred by res judicata or
        waived for his failure to raise them in complaint—Court of appeals’ denial
        of writ affirmed.
      (No. 2019-1771—Submitted April 28, 2020—Decided June 11, 2020.)
      APPEAL from the Court of Appeals for Cuyahoga County, No. 109080,
                                      2019-Ohio-5131.
                                   __________________
        Per Curiam.
        {¶ 1} Appellant, Robert L. Thomas, is in prison for multiple rape and
kidnapping convictions. In 2019, he filed a complaint in the Eighth District Court
of Appeals seeking a writ of mandamus to compel appellee, Cuyahoga County
                             SUPREME COURT OF OHIO




Court of Common Pleas Judge Daniel Gaul, to vacate his convictions. The Eighth
District denied the writ, and Thomas appeals to this court as of right. We affirm.
                                   Background
       {¶ 2} Thomas was charged with raping a 12-year-old girl multiple times
between August and October 2012. He was indicted in early 2013, but at the state’s
request, that indictment was dismissed without prejudice. Thomas was reindicted
later that year, and a jury found him guilty of multiple rape and kidnapping counts.
He was sentenced to an aggregate prison term of 50 years to life.
       {¶ 3} On appeal, the Eighth District affirmed Thomas’s convictions but
vacated his sentence because the trial court had not made the findings necessary for
imposing consecutive sentences. State v. Thomas, 8th Dist. Cuyahoga No. 101797,
2015-Ohio-3226, ¶ 65, 69. On remand, the trial court made the necessary findings
and again imposed an aggregate prison term of 50 years to life.
       {¶ 4} In 2019, Thomas filed a mandamus complaint in the Eighth District
to compel Judge Gaul to vacate his convictions. Thomas claimed that the first
indictment against him had been dismissed on speedy-trial grounds and that his
convictions violated the Double Jeopardy Clause of the Fifth Amendment to the
United States Constitution. The Eighth District granted summary judgment in
Judge Gaul’s favor and denied the writ.
                                     Analysis
       {¶ 5} We review the Eighth District’s decision granting summary judgment
de novo. Esber Beverage Co. v. Labatt USA Operating Co., L.L.C., 138 Ohio St.3d
71, 2013-Ohio-4544, 3 N.E.3d 1173, ¶ 9. To be entitled to a writ of mandamus,
Thomas must establish a clear legal right to the requested relief, a clear legal duty
on the part of Judge Gaul to provide that relief, and the lack of an adequate remedy
in the ordinary course of the law. State ex rel. Waters v. Spaeth, 131 Ohio St.3d
55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6.




                                          2
                                January Term, 2020




       {¶ 6} Thomas alleges that his convictions are void because, he says, the trial
court dismissed the first indictment against him on speedy-trial grounds and he was
protected against reindictment under the Double Jeopardy Clause. Thomas could
have raised these claims prior to his criminal trial and again in his appeal from the
trial court’s judgment of conviction. See R.C. 2945.73(B) and (D); Borsick v. State,
73 Ohio St.3d 258, 259, 652 N.E.2d 951 (1995); State ex rel. Dix v. Angelotta, 18
Ohio St.3d 115, 116, 480 N.E.2d 407 (1985). Therefore, the claims are barred by
res judicata, and the Eighth District was correct in concluding that Thomas’s
mandamus request fails as a matter of law. See State ex rel. Hunter v. Binette, 154
Ohio St.3d 508, 2018-Ohio-2681, 116 N.E.3d 121, ¶ 13.
       {¶ 7} We note that Thomas also argues in his merit brief that Judge Gaul
was required to issue findings of fact when he dismissed the first indictment and
that the second indictment was deficient. Thomas waived these arguments by
failing to raise them in his complaint. See State ex rel. Sevayega v. Gallagher, 151
Ohio St.3d 208, 2017-Ohio-8369, 87 N.E.3d 212, ¶ 16.
                                                                Judgment affirmed.
       O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
                               _________________
       Robert L. Thomas, pro se.
       Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and James
E. Moss, Assistant Prosecuting Attorney, for appellee.
                               _________________




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