[Cite as State ex rel. Elder v. Collins, 2015-Ohio-3418.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                          LAKE COUNTY, OHIO


STATE OF OHIO ex rel.                                       :    PER CURIAM OPINION
EMMANUEL ELDER,
                                                            :
                 Relator,                                        CASE NO. 2015-L-066
                                                            :
        - vs -
                                                            :
HONORABLE RICHARD L. COLLINS, JR.,
COURT OF COMMON PLEAS,                                      :

                 Respondent.                                :


Original Action for Writ of Prohibition.

Judgment: Petition dismissed.


Emmanuel Elder, pro se, PID# A644-514, North Central Correctional Institution, P.O.
Box 1812-670 Marion-Williamsport Rd., Marion, OH 43302 (Relator).

Charles E. Coulson, Lake County Prosecutor, Lake County Administration Building,
105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Respondent).



PER CURIAM

        {¶1}     Before this court is relator, Emmanuel Elder’s, Petition for a Writ of

Prohibition.     Respondent, Judge Richard Collins, Jr., has filed a Motion to Dismiss

and/or in the Alternative Motion for Summary Judgment, claiming that Elder has an

adequate remedy at law by way of an appeal.                     For the following reasons, Elder’s

Petition is dismissed.
       {¶2}    On May 28, 2015, Elder filed his Petition for a Writ of Prohibition. In his

Petition, he requests, among other things, that this court vacate his conviction/sentence

for Failure to Comply with Order or Signal of Police Officer and various misdemeanor

offenses in Lake County Court of Common Pleas Case No. 13 CR 000415, on the

grounds that he was not given credit for speedy trial time and there was a lack of

probable cause.1 He essentially argues that Judge Collins should be prohibited from

exercising authority over him by enforcing his sentence, since the court did not have

jurisdiction to issue judgments in this case.

       {¶3}    Judge Collins filed his Motion to Dismiss on July 15, 2015.

       {¶4}    Elder filed a Relator’s Affidavit to Deny Respondent’s Motion to Dismiss

and/or Summary Judgment on July 23, 2015.

       {¶5}    “The conditions which must exist to support the issuance of a writ of

prohibition are: (1) The court or officer against whom it is sought must be about to

exercise judicial or quasi-judicial power; (2) the exercise of such power must be

unauthorized by law; and (3) it must appear that the refusal of the writ would result in

injury for which there is no other adequate remedy in the ordinary course of the law.”

State ex rel. McKee v. Cooper, 40 Ohio St.2d 65, 320 N.E.2d 286 (1974), paragraph

one of the syllabus. “[T]he function of a writ of prohibition is very limited; i.e., the sole

purpose of such a writ is to stop an inferior court or judicial officer from engaging in any

action which exceeds the general scope of its jurisdiction.” State ex rel. Feathers v.

Gansheimer, 11th Dist. Ashtabula No. 2006-A-0038, 2007-Ohio-2858, ¶ 2. Prohibition


1. Elder has previously filed two appeals in relation to the underlying criminal case, in which his
convictions were affirmed. State v. Elder, 11th Dist. Lake No. 2014-L-001, 2014-Ohio-4312, and State v.
Elder, 11th Dist. Lake No. 2013-L-128, 2014-Ohio-2567. He also filed a Petition for Writ of Mandamus
related to this matter in State v. Elder, 11th Dist. Lake No. 2013-L-114, 2014-Ohio-871, which was
dismissed.


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generally “will not issue if the party seeking extraordinary relief has an adequate remedy

in the ordinary course of law.” State ex rel. Hemsley v. Unruh, 128 Ohio St.3d 307,

2011-Ohio-226, 943 N.E.2d 1014, ¶ 9.

       {¶6}    Dismissal of an original action is “appropriate if after presuming the truth of

all material factual allegations of [relators’] petition and making all reasonable inferences

in their favor, it appear[s] beyond doubt that they could prove no set of facts entitling

them to the requested extraordinary relief.” State ex rel. Scott v. Cleveland, 112 Ohio

St.3d 324, 2006-Ohio-6573, 859 N.E.2d 923, ¶ 14.

       {¶7}    Elder is not seeking to prohibit any action by the trial court, but takes issue

with various past actions and events in Case No. 13 CR 000415. A writ of prohibition in

such circumstances is permissible only “[w]here there is a total want of jurisdiction on

the part of a court,” in which case the writ will be “allowed to arrest the continuing effect

of an order previously issued by such court.” State ex rel. Adams v. Gusweiler, 30 Ohio

St.2d 326, 285 N.E.2d 22 (1972), paragraph two of the syllabus. When there is a patent

lack of jurisdiction for the lower court to act, the remedy of appeal is “immaterial,” i.e.,

the relator can maintain an action in prohibition regardless of his alternative remedy of

appeal. State ex rel. Willacy v. Smith, 78 Ohio St.3d 47, 51, 676 N.E.2d 109 (1997).

Thus, we must consider whether the lower court patently and unambiguously lacked

jurisdiction in this case.

       {¶8}    Elder asserts various arguments that the proceedings against him were

not properly instituted and the court had no jurisdiction because there was no traffic

ticket issued for his offenses. This court addressed this issue on Elder’s direct appeal in

Elder, 2014-Ohio-4312, noting that, since the proceedings were “predicated upon an




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indictment,” such defects were harmless and had no effect on the trial court’s

jurisdiction. Id. at ¶ 45; also Elder, 2014-Ohio-2567, at ¶ 18.

       {¶9}     Elder asserts that there was a lack of probable cause to support a finding

that he committed the offenses. As the Eighth District held in a similar original action

instituted by Elder, a lack of probable cause “do[es] not deprive a trial court of

jurisdiction” and is an issue properly raised on appeal. State ex rel. Elder v. Matia, 8th

Dist. Cuyahoga No. 101195, 2014-Ohio-3598, ¶ 6.

       {¶10} Elder next contends that the court lacked jurisdiction because there was

no affidavit of a witness to the crimes for which he was convicted and the complaint did

not comply with Crim.R. 4(A)(1). A similar argument has been addressed and rejected

by this court, which held that the lack of a witness affidavit does not render a complaint

defective or deprive the court of jurisdiction. State ex rel. Elder v. Camplese, 11th Dist.

Ashtabula No. 2014-A-0039, 2014-Ohio-4546, ¶ 17.

       {¶11} Elder also raises various arguments regarding the fact that his convictions

in the matter pending before Judge Collins were “in violation of the Ohio Speedy Trial

Provision.” Such arguments are not properly raised in the present proceedings. A

claim that a defendant “was denied his right to a speedy trial is not cognizable in an

extraordinary-writ proceeding,” including in an original action for a writ of prohibition.

State ex rel. Jackim v. Ambrose, 118 Ohio St.3d 512, 2008-Ohio-3182, 890 N.E.2d 324,

¶ 6; State ex rel. Pesci v. Lucci, 115 Ohio St.3d 218, 2007-Ohio-4795, 874 N.E.2d 774,

¶ 6. Elder had an adequate remedy by way of appeal to address any alleged speedy

trial issues.




                                             4
       {¶12} Finally, Elder alleges various other issues with actions that have already

occurred in the underlying criminal proceedings, such as a lack of evidence to support

his conviction and the failure of an officer to comply with a subpoena. However, he

advances no credible argument supporting a conclusion that these actions rendered the

court with a total lack of jurisdiction.   As such, they are not properly addressed in

prohibition proceedings. See Matia, 2014-Ohio-3598, at ¶ 6.

       {¶13} In sum, Elder raises arguments that this court has previously rejected and

that lack any legal support. Since Elder can prove no set of facts entitling him to the

requested extraordinary relief, his Petition for a Writ of Prohibition is dismissed.



DIANE V. GRENDELL, J., THOMAS R. WRIGHT, J., COLLEEN MARY O’TOOLE, J.,
concur.




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