[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Steele v. McClelland, Slip Opinion No. 2018-Ohio-4011.]




                                           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. 2018-OHIO-4011
THE STATE EX REL. STEELE, APPELLANT, v. MCCLELLAND, JUDGE, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as State ex rel. Steele v. McClelland, Slip Opinion No.
                                     2018-Ohio-4011.]
Mandamus and prohibition—Petition to compel trial court to vacate journal entry
        dismissing first indictment—Existence of second indictment constituted
        “good cause” for purpose of R.C. 2941.33 requirement—Adequate remedy
        existed at law—Court of appeals’ dismissal affirmed.
     (No. 2017-1601—Submitted April 10, 2018—Decided October 4, 2018.)
              APPEAL from the Court of Appeals for Cuyahoga County,
                              No. 105893, 2017-Ohio-8233.
                                     _______________
        Per Curiam.
        {¶ 1} Appellant, Tracee Steele, appeals the judgment of the Eighth District
Court of Appeals dismissing his petition for writs of mandamus and prohibition
                             SUPREME COURT OF OHIO




against appellee, Robert C. McClelland, a Cuyahoga County Common Pleas Court
judge. We affirm the judgment of the court of appeals.
                                   Background
       {¶ 2} In 2006, Steele was indicted in Cuyahoga County Common Pleas case
No. CR-06-484795-A for multiple counts of gross sexual imposition and
kidnapping. On December 6, 2006, prior to trial, the prosecutor orally moved to
dismiss that indictment because a second indictment had been filed against Steele,
in case No. CR-06-489173-A. The second indictment was nearly identical to the
first with the exception of Counts 21 and 22, which charged Steele with rape instead
of gross sexual imposition. He subsequently pleaded guilty to five counts of gross
sexual imposition and was sentenced to 15 years in prison.
       {¶ 3} On June 13, 2017, Steele filed a petition for writs of mandamus and
prohibition in the Eight District Court of Appeals, arguing that Judge McClelland’s
predecessor (who presided over Steele’s proceedings in the trial court) erred when
she granted the state’s motion to dismiss the indictment in case No. CR-06-484795-
A. Thus, Steele sought an order compelling Judge McClelland to vacate as void
the December 2006 journal entry dismissing the first indictment and to “place the
parties in the same position they were in before the void judgment was entered.”
       {¶ 4} Judge McClelland filed a motion for summary judgment, which
Steele opposed. The court of appeals granted the judge’s motion on the grounds
that the trial court properly dismissed the first indictment and Steele had an
adequate remedy in the ordinary course of the law.
                                  Legal Analysis
       {¶ 5} We affirm the judgment of the court of appeals. Steele asserts in his
petition that the trial court erred when it granted the state’s motion to dismiss the
first indictment. In support, Steele argues that the dismissal entry is void because
the trial court failed to determine that “good cause” existed as required by R.C.
2941.33 and because the trial judge and prosecutor referenced an incorrect case




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                                January Term, 2018




number in open court with regard to the state’s motion to dismiss the first
indictment.
       {¶ 6} The record does not demonstrate that the trial court’s decision
granting the state’s motion to dismiss was made in error. In this case, the existence
of the second indictment in case No. CR-06-489173-A, which changed two counts
contained in the first indictment from gross sexual imposition to rape, constituted
“good cause” for purposes of R.C. 2941.33. See State v. McWilliams, 8th Dist.
Cuyahoga No. 68571, 1995 WL 386981, *3 (recognizing that good cause exists to
dismiss a first indictment when a second indictment was being sought).
       {¶ 7} Steele contends that McWilliams is distinguishable and that the court
of appeals erred in relying on it. However, his argument is unfounded; just as in
Steele’s case, in McWilliams, on the day trial was to begin on a first indictment, the
state sought to dismiss the first indictment so it could proceed on a second
indictment, which added charges against a codefendant. The relevant difference
between McWilliams and Steele’s case is the reason for the dismissal of the first
indictment—and McWilliams is not distinguishable on this basis.
       {¶ 8} Pursuant to Crim.R. 48(A), the state may seek dismissal of an
indictment by leave of court and in open court. The record demonstrates that the
prosecutor and trial judge did initially misidentify the number of the case being
dismissed as CR-06-484175-A instead of the correct case number, CR-06-484795-
A. However, as the court of appeals correctly noted, the transcript makes clear that
the error was inconsequential. 2017-Ohio-8233 at fn. 1. The fact that Steele’s
counsel referenced the correct case number at the hearing further demonstrates that
any confusion caused by the misidentification was subsequently dispelled.
Accordingly, Steele failed to demonstrate that the trial court’s dismissal of the first
indictment to allow the state to proceed on the second indictment was erroneous.
       {¶ 9} Even if the dismissal had been granted in error, Steele would not be
successful here because he has not demonstrated that he lacks an adequate remedy




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                             SUPREME COURT OF OHIO




in the ordinary course of law.       Absent a patent and unambiguous lack of
jurisdiction, neither mandamus nor prohibition will lie if the relator has an adequate
remedy in the ordinary course of the law. State ex rel. Plant v. Cosgrove, 119 Ohio
St.3d 264, 2008-Ohio-3838, 893 N.E.2d 485, ¶ 5. Steele could have moved to
dismiss the second indictment and could have appealed any adverse ruling at the
conclusion of the case. Thus, he is not entitled to either writ. State ex rel. Luoma
v. Russo, 141 Ohio St.3d 53, 2014-Ohio-4532, 21 N.E.3d 305, ¶ 8 (“The availability
of an appeal is an adequate remedy sufficient to preclude a writ”); State ex rel.
Dailey v. Dawson, 149 Ohio St.3d 685, 2017-Ohio-1350, 77 N.E.3d 937, ¶ 21.
       {¶ 10} Steele also contends that the second indictment was erroneously
sought without leave of court. However, whether to seek an indictment is well
within a prosecutor’s discretion, State v. Mink, 101 Ohio St.3d 350, 2004-Ohio-
1580, 805 N.E.2d 1064, ¶ 103; there is no basis in the law for the proposition that
a prosecutor must first seek leave of court. Moreover, Steele has waived this claim
by failing to raise it in his petition. 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 O’DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE,
and DEGENARO, JJ., concur.
                                _________________
       Tracee Steele, pro se.
       Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and James
E. Moss, Assistant Prosecuting Attorney, for appellee.
                                _________________




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