[Cite as State ex rel. Bevins v. Cooper, 138 Ohio St.3d 275, 2014-Ohio-544.]




    THE STATE EX REL. BEVINS, APPELLANT, v. COOPER, JUDGE, APPELLEE.
  [Cite as State ex rel. Bevins v. Cooper, 138 Ohio St.3d 275, 2014-Ohio-544.]
Mandamus—Prohibition—Prisoner not entitled to release or retrial—Trial-court
          discharge of hung jury at first trial without stating basis for discharge on
          journal as required by R.C. 2945.36—Prisoner waived objection by not
          raising error before second trial—Writ denied.
 (No. 2013-1118—Submitted December 10, 2013—Decided February 20, 2014.)
     APPEAL from the Court of Appeals for Hamilton County, No. C-130276.
                                 ____________________
          Per Curiam.
          {¶ 1} We affirm the Hamilton County Court of Appeals’ dismissal of
appellant Andrew Bevins Jr.’s petition for writs of mandamus and/or prohibition.
          {¶ 2} Bevins was tried in 2003 on charges of aggravated burglary and
rape. The trial ended in mistrial due to a hung jury. In 2005, Judge Ethna M.
Cooper presided over the retrial, in which Bevins was convicted by a jury on both
counts.
          {¶ 3} In Bevins’s direct appeal from the 2005 convictions, the court of
appeals remanded for resentencing, but affirmed the convictions. State v. Bevins,
1st Dist. Hamilton No. C-050754, 2006-Ohio-6974.                    Bevins unsuccessfully
appealed to this court. State v. Bevins, 117 Ohio St.3d 1437, 2008-Ohio-1279,
883 N.E.2d 456 (denying motion for leave to file delayed appeal).
          {¶ 4} In this case, Bevins asked the court of appeals to issue a writ
ordering immediate release or a new trial, alleging that the 2005 retrial was
“jurisdictionally unauthorized” because in 2003 the trial court had discharged the
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jury without stating the reasons for the discharge on the journal, as required by
R.C. 2945.36.
       {¶ 5} A criminal defendant, under the Fifth Amendment to the United
States Constitution, generally has the right not to be put in jeopardy twice for the
same offense. State v. Gunnell, 132 Ohio St.3d 442, 2012-Ohio-3236, 973 N.E.2d
243, ¶ 25, citing Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d
707 (1969). The Double Jeopardy Clause affords a criminal defendant a “ ‘valued
right to have his trial completed by a particular tribunal.’ ” Oregon v. Kennedy,
456 U.S. 667, 671–672, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), quoting Wade v.
Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949).
       {¶ 6} However, as the Gunnell court pointed out, the right is not without
exception. The prosecutor can justify a mistrial and retrial under the Double
Jeopardy Clause of the Fifth Amendment if he can demonstrate “manifest
necessity” for the mistrial. Gunnell at ¶ 25, citing Arizona v. Washington, 434
U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).
       {¶ 7} “While other situations have been recognized * * * as meeting the
‘manifest necessity’ standard, the hung jury remains the prototypical example.”
Oregon v. Kennedy at 672, citing Arizona v. Washington at 509; Illinois v.
Somerville, 410 U.S. 458, 463, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). Reflecting
this exception, R.C. 2945.36(B) allows a trial court to discharge a jury without
prejudice to the prosecution when “there is no probability of such jurors
agreeing.”
       {¶ 8} According to Bevins, however, the trial court in his case did not
satisfy the requirement of R.C. 2945.36 that the “reason for such discharge shall
be entered on the journal.” However, Bevins failed to raise this objection before
his second trial. Under Crim.R. 12(C)(1), defenses and objections based on
defects in the institution of the prosecution “must be raised before trial.” A




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failure to raise a defense or objection constitutes a waiver of that defense or
objection. Crim.R. 12(H). Thus, Bevins has waived his mistrial argument.
       {¶ 9} Moreover, Bevins had available to him other adequate legal
remedies by way of appeal, and mandamus and prohibition will not lie where
there is an adequate remedy at law. State ex rel. Ervin v. Barker, 136 Ohio St.3d
160, 2013-Ohio-3171, 991 N.E.2d 1146, ¶ 9-10. As explained above, he could
have filed a Crim.R. 12(C)(1) motion before the retrial and appealed any denial of
that motion. He also could have brought up the retrial issue as part of the direct
appeal of his 2005 conviction, and he could have brought up the retrial issue as
part of a postconviction petition under R.C. 2953.21 et seq.
       {¶ 10} As Bevins had adequate remedies at law, he is not entitled to a
writ, and we affirm.
                                                               Judgment affirmed.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                             ____________________
       Andrew Bevins Jr., pro se.
       Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M.
Heenan, Assistant Prosecuting Attorney, for appellee.
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