[Cite as State ex rel. McCuller v. Common Pleas Court Juvenile Div., 2013-Ohio-4929.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100143



                            STATE OF OHIO, EX REL.
                             CHARLES McCULLER

                                                                   RELATOR

                                                     vs.

                            COMMON PLEAS COURT,
                              JUVENILE DIVISION
                                                                   RESPONDENT




                                          JUDGMENT:
                                          WRIT DENIED


                                   Writ of Procedendo/Mandamus
                                         Motion No. 468492
                                         Order No. 468932

        RELEASE DATE: November 1, 2013
FOR RELATOR

Charles D. McCuller, pro se
Inmate No. 482-821
Grafton Correctional Institution
2500 S. Avon Belden Road
Grafton, Ohio 44044

ATTORNEYS FOR RESPONDENT

Timothy J. McGinty
Cuyahoga County Prosecutor

By: James E. Moss
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:

      {¶1} Charles        D.   McCuller   has   filed   a   complaint    for    a   writ   of

procedendo/mandamus.       McCuller seeks an order from this court that requires the

Cuyahoga County Juvenile Court (“Juvenile Court”) “to issue a final order, or proceed to

judgment in” Juvenile Court Case Nos. DL-79106998, DL-79109498, DL-79100442,

DL-79105098, and DL-79109646. Specifically, McCuller argues that the Juvenile Court,

with regard to bindover order rendered in the aforesaid five juvenile cases, failed to sign

the orders and the clerk of the Juvenile Court failed to journalize the bindover orders

required by Crim.R. 32 and Civ.R. 58. For the following reasons, we grant the Juvenile

Court’s   motion    for   summary    judgment    and    decline   to    issue   a   writ   of

procedendo/mandamus on behalf of McCuller.

                           Procedural and Factual Background

      A. Case No. DL-79100442

      {¶2} On April 17, 1979, McCuller was charged in Juvenile Court with one count

of attempted rape and one count of felonious assault. On June 1, 1979, the Juvenile

Court conducted a bindover hearing and transferred the case to the Cuyahoga County

Court of Common Pleas. On July 26, 1979, McCuller was indicted by the grand jury of

Cuyahoga County for one count of attempted rape and one count of felonious assault.

On January 11, 1980, McCuller pled guilty to the indictment. On February 15, 1980,

McCuller was sentenced to a term of incarceration of five years to 15 years.

      B. Case No. DL-79105098
      {¶3} On June 27, 1979, McCuller was charged in Juvenile Court with one count

of rape.    On July 9, 1979, the Juvenile Court conducted a bindover hearing and

transferred the case to the Cuyahoga County Court of Common Pleas. On August 14,

1979, McCuller was indicted by the grand jury of Cuyahoga County for one count of rape.

 On January 11, 1980, McCuller pled guilty to the indictment. On February 15, 1980,

McCuller was sentenced to a term of incarceration of seven years to 25 years.

      C. Case No. DL-79109646

      {¶4} On June 27, 1979, McCuller was charged in Juvenile Court with one count

of kidnapping and one count of rape. On July 9, 1979, the Juvenile Court conducted a

bindover hearing and transferred the case to the Cuyahoga County Court of Common

Pleas. On December 5, 1979, McCuller was indicted by the grand jury of Cuyahoga

County for one count of kidnapping and one count of rape. On January 11, 1980,

McCuller pled guilty to one count of rape. The one count of kidnapping was nolled. On

February 15, 1980, McCuller was sentenced to a term of incarceration of seven years to

25 years.

      D. Case No. DL-79106998

      {¶5} On May 11, 1979, McCuller was charged in Juvenile Court with one count

of breaking and entering and one count of possessing criminal tools. On June 1, 1979,

the Juvenile Court conducted a bindover hearing and transferred the case to the Cuyahoga

County Court of Common Pleas. On July 26, 1979, McCuller was indicted by the grand

jury of Cuyahoga County for one count of breaking and entering and one count of
possessing criminal tools. On January 11, 1980, both counts of the indictment were

nolled.

          E. Case No. DL-79109498

          {¶6} On June 28, 1979, McCuller was charged in Juvenile Court with one count

of breaking and entering and one count of possessing criminal tools. On July 9, 1979,

the Juvenile Court conducted a bindover hearing and transferred the case to the Cuyahoga

County Court of Common Pleas. The Juvenile Court, through its motion for summary

judgment, posits that although Case No. DL-79109498 was bound over to the Cuyahoga

County Court of Common Pleas, that no record exists to demonstrate that McCuller was

indicted for the offenses of breaking and entering and possessing criminal tools. In

addition, counsel for the Juvenile Court states that:

          an offender search for “Charles McCuller” on the webpage for the Ohio
          Department of Rehabilitation and Correction (footnote omitted) does not
          indicate he is serving a sentence for any of the offenses for which he was
          presumably bound over on or about July 9, 1979, in case number
          DL79109498 from Cuyahoga County Juvenile Court to the Cuyahoga
          County Court of Common Pleas.

       {¶7} On July 22, 2013, McCuller filed his complaint for a writ of
procedendo/mandamus, premised upon the argument that the failure of a judge of the
Juvenile Court to sign each bindover order and the failure of the Juvenile Court clerk to
journalize the bindover orders violated Crim.R. 32 and Civ.R. 58. McCuller argues that

          in the case at bar, it is apparent that the ultimate relief sought by relator is
          an order from this court requiring [the Juvenile Court] to proceed to
          judgment on the state’s motion to relinquish jurisdiction. The unnecessary
          delay, of rendering a final judgment or to proceed to judgment in the current
          pending action without necessary delay, the relator has not been afforded
          his right to due process, and therefore is unable to pursue an adequate
          remedy in the course of the law, either through the trial court or the
          appellate court.
       {¶8} On September 20, 2013, the Juvenile Court filed a motion for summary

judgment with attached exhibits.

                                      Legal Analysis

       {¶9} A writ of procedendo shall issue if a court has refused to render a judgment

or has unnecessarily delayed in proceeding to judgment. State ex rel. Charvat v. Frye,

114 Ohio St.3d 76, 2007-Ohio-2882, 868 N.E.2d 270. In each of the five Juvenile Court

cases, as referenced by McCuller, a judgment was rendered that directed that McCuller be

bound over to the Cuyahoga County Court of Common Pleas for prosecution. The

Juvenile Court has not refused to render a judgment and has not unnecessarily delayed in

proceeding to judgment. State ex rel. CNG Fin. Corp. v. Nadel, 111 Ohio St.3d 149,

2006-Ohio-5344, 855 N.E.2d 473; Bozsik v. Hudson, 110 Ohio St.3d 245,

2006-Ohio-4356, 852 N.E.2d 1200.

       {¶10} In order for this court to issue a writ of mandamus, McCuller must establish:

(1) McCuller possesses a clear legal right to the requested relief; (2) the Juvenile Court

possesses a clear legal duty to perform the requested relief, and (3) there exists no

adequate remedy in the ordinary course of the law. In addition, although mandamus may

be employed to compel a court to exercise judgment or 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). Furthermore, mandamus is not a

substitute for appeal. State ex rel. Keenan v. Calabrese, 69 Ohio St.3d 176, 631 N.E.2d

119 (1994); State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141, 228 N.E.2d 631
(1967). Thus, mandamus does not lie to correct errors and procedural irregularities in the

course of a case. State ex rel. Jerninghan v. Gaughan, 8th Dist. Cuyahoga No. 67787,

1994 Ohio App. LEXIS 6227 (Sept. 26, 1994).

       {¶11} In addition, if McCuller possessed an adequate remedy in the ordinary

course of the law, regardless of whether the remedy was employed, relief in mandamus is

precluded. State ex rel. Tran v. McGrath, 78 Ohio St.3d 45, 1997-Ohio-245, 676 N.E.2d

108. Moreover, mandamus is an extraordinary remedy to be exercised with great caution

and granted only when the right is clear. Mandamus will not issue in doubtful cases.

State ex rel. Shafer v. Ohio Turnpike Comm., 159 Ohio St. 581, 113 N.E.2d 14 (1953).

Furthermore, mandamus will not issue to compel a vain act. State ex rel. Cotton v. Ghee,

84 Ohio St.3d 54, 1998-Ohio-679, 701 N.E.2d 989.

       {¶12} Moreover, this court possesses discretion in issuing a writ of mandamus.

The Supreme Court of Ohio, in Pressley, held that “in considering the allowance or denial

of the writ of mandamus on the merits, [the court] will exercise sound, legal and judicial

discretion based upon all the facts and circumstances in the individual case and the justice

to be done.”     The Supreme Court of Ohio also established that in exercising its

discretion, the court should consider

       the exigency which calls for the exercise of such discretion, the nature and
       extent of the wrong or injury which would follow a refusal of the writ, and
       other facts which have a bearing on the particular case. * * * Among the
       facts and circumstances which the court will consider are the applicant’s
       rights, the interests of third persons, the importance or unimportance of the
       case, the applicant’s conduct, the equity and justice of the relator’s case,
       public policy and the public’s interest, whether the performance of the act
       by the respondent would give the relator any effective relief, and whether
       such act would be impossible, illegal, or useless.

Id. at 161-162.

       {¶13} Juvenile proceedings are civil rather than criminal in nature.       Cope v.

Campbell, 175 Ohio St. 475, 196 N.E.2d 457 (1964), paragraph one of the syllabus,

overruled on other grounds, In re Agler, 19 Ohio St.2d 70, 249 N.E.2d 808. Because

juvenile proceedings are civil in nature, Crim.R. 32 is not applicable to any of the

judgments rendered by the Juvenile Court. We further determine that requiring the

Juvenile Court to sign each judgment, which ordered McCuller be bound over to the

Cuyahoga County Court of Common Pleas, and further ordering the clerk of the Juvenile

Court to journalize each judgment of bindover would constitute a vain and useless act. A

judgment that orders the bindover of a juvenile is not a final appealable order. In re

Becker, 39 Ohio St.2d 84, 314 N.E.2d 158 (1974); State ex rel. Torres v. Simmons, 68

Ohio St.2d 118, 428 N.E.2d 862 (1981). Any error in a juvenile bindover is reviewable

only upon a direct appeal following a conviction of the offense or offenses after the

juvenile is bound over to the court of common pleas. State v. Washington, 2d Dist.

Montgomery No. 20226, 2005-Ohio-6546.           Granting McCuller his requested relief

would not afford him his ultimate goal, that is to challenge the original judgments of

bindover, but would simply lead to the further expenditure of limited judicial resources in

“dead-end” litigation. State ex rel. Newell v. Gaul, 8th Dist. Cuyahoga No. 98326,

2012-Ohio-4068. As stated by the Supreme Court of Ohio in State v. Reddick, 72 Ohio

St.3d 88, 1995-Ohio-249, 647 N.E.2d 784, judicial remedies are not intended to create an
open invitation for a person sentenced to long periods of incarceration to concoct new

theories in order to institute a new round of appeals. Because mandamus will not issue

to compel a vain act, we decline to issue a writ of mandamus on behalf of McCuller.

      {¶14} Directly related to the issue of a vain act is the fact that McCuller possessed

an adequate remedy at law. Upon conviction in Cuyahoga C.P. Case Nos. CR-48254,

CR-48919, CR-49139, and CR-52011, McCuller could have challenged the bindover

judgments through direct appeals upon entering pleas of guilty and sentencing for the

offenses of attempted rape, rape, felonious assault, kidnapping, breaking and entering,

and possessing criminal tools. Because McCuller possessed an adequate remedy at law

by way of appeal, he cannot establish the elements for a writ of mandamus. State ex rel.

Ervin v. Barker, 136 Ohio St.3d 160, 2013-Ohio-3171, 991 N.E.2d 1146; State ex rel.

Jones v. Ansted, 131 Ohio St.3d 125, 2012-Ohio-109, 961 N.E.2d 192; State ex rel.

Cunningham v. Lindeman, 126 Ohio St.3d 481, 2010-Ohio-4388, 935 N.E.2d 393.

      {¶15} The doctrine of res judicata also prevents this court from issuing a writ of

procedendo/mandamus on behalf of McCuller. Res judicata involves the two related

concepts of claim preclusion, also known as res judicata or estoppel by judgment, and

issue preclusion, also known as collateral estoppel. Grava v. Parkman Twp., 73 Ohio

St.3d 379, 1995-Ohio-331, 653 N.E.2d 226.         Claim preclusion prevents subsequent

litigation, by the same parties or their privies, based upon any claim arising out of a

transaction that was the subject matter of a prior action. Fort Frye Teachers Assn. v.

State Emp. Relations Bd., 81 Ohio St.3d 392, 1998-Ohio-435, 692 N.E.2d 140. Claim
preclusion also bars subsequent actions on the same claim, where a claim could have been

litigated in the prior action. Grava, supra.

       {¶16} Issue preclusion, however, serves to prevent relitigation of any fact or point

of law that was determined by a court of competent jurisdiction in a previous action

between the same parties or their privies. Fort Frye, supra. Issue preclusion applies

even if the causes of action are different. Id. Herein, the issue of McCuller’s bindover

from the Juvenile Court to the common pleas court was raised and addressed through a

prior legal action.

       {¶17} In State ex rel. McCuller v. Calabrese, 8th Dist. Cuyahoga No. 96764,

2011-Ohio-3992, McCuller commenced an action in mandamus and prohibition arguing

that the Juvenile Court did not properly bind him over to the common pleas court for

further prosecution as an adult, and thus, the criminal cases were void ab initio. This

court determined that the bindover to the common pleas court was proper.

       The respondent judge moved for summary judgment. Attached to this
       motion are copies, certified by the juvenile court’s deputy clerk, of the
       relevant docket entries * * *. These docket entries show that the juvenile
       court made the necessary findings pursuant to the bindover statute and ruled
       that McCuller was 17 years-old, that there was probable cause to believe
       that he had committed the charged offenses that would be felonies if
       committed by an adult, that he was not amenable to rehabilitation, and that
       the safety of the community required that he be placed under legal restraint
       including, if necessary, for a period extending beyond his majority.
       Finally, * * * the juvenile court ruled that McCuller be bound over for
       further proceedings.

       ***

       Generally, any error complained of in a bindover order must be raised on
       appeal from the judgment of the common pleas court. Thus, McCuller’s
        writ action is also barred because he has or had an adequate remedy at law.
        (Citations omitted.)

        The court further notes that the charges in Case No. CR-49139 were nolled.
         It is difficult to see how any meaningful relief could be granted in that
        case. A writ will not issue to compel a vain act. (Citations omitted.)

Id. at 3.

        {¶18} Since the issue of a proper bindover was previously determined by a court of

competent jurisdiction in a previous action between the same parties, McCuller and the

state of Ohio, we find that issue preclusion prevents relitigation of the issue of a proper

bindover, and thus precludes the granting of a writ of procedendo/mandamus. Onesti v.

Debartolo Realty Corp, 113 Ohio St.3d 59, 2007-Ohio-1102, 862 N.E.2d 803.

        {¶19} Finally, we must determine whether McCuller should be declared a

vexatious litigator pursuant to the local rules of the Eighth District Court of Appeals.

Loc.App.R. 23(A) provides that an original action shall be considered frivolous if it is not

reasonably grounded in fact or warranted by existing law. Loc.App.R. 23(B) further

provides that a party that habitually, persistently, and without reasonable cause engages in

frivolous conduct, may be declared a vexatious litigator subject to filing restrictions.

Herein, the issue of a defective bindover was previously found to be without merit though

a prior original action. In addition, a review of the docket maintained by the clerk of the

Eighth District Court of Appeals demonstrates that McCuller has filed five appeals and

nine original actions since 1996, which have taxed the limited resources of this court.

Thus, McCuller is warned that the continued filing of appeals and original actions, that
are frivolous, may result in the declaration of him being a vexatious litigator pursuant to

Loc.App.R. 23(A).

       {¶20} Accordingly, we grant the Juvenile Court’s motion for summary judgment.

Costs to McCuller. The court directs the clerk of court to serve all parties with notice of

this judgment and the date of entry upon the journal as required by Civ.R. 58(B).

       {¶21} Writ denied.



_______________________________________
MARY J. BOYLE, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS IN JUDGMENT ONLY
