[Cite as Rembert v. State ex rel. Franklin Cty., 2020-Ohio-2986.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MARION COUNTY




ALBERT L. REMBERT,
                                                                    CASE NO. 9-20-01
       PLAINTIFF-APPELLANT,

       v.

STATE EX. REL., FRANKLIN
COUNTY, OHIO,                                                       OPINION

       DEFENDANT-APPELLEE.



                  Appeal from Marion County Common Pleas Court
                                  General Division
                            Trial Court No. 2019CV0543

                                       Judgment Affirmed

                               Date of Decision: May 18, 2020



APPEARANCES:

        Albert L. Rembert Appellant

        Michael A. Walton for Appellee
Case No. 9-20-01


WILLAMOWSKI, J.

           {¶1} Plaintiff-appellant Albert Rembert (“Rembert”) brings this appeal from

the judgment of the Court of Common Pleas of Marion County, Ohio granting the

motion to dismiss filed by defendant-appellee State Ex Rel., Franklin County, Ohio

(“the State”). On appeal Rembert claims that the trial court erred in granting the

motion to dismiss. Although originally placed on our accelerated calendar, we have

elected pursuant to Loc.R. 12(5) to issue a full opinion in lieu of a summary

judgment entry. For the reasons set forth below, the judgment is affirmed.

           {¶2} In 1978, in the Court of Common Pleas of Cuyahoga County, Ohio,

Rembert was convicted of one count of aggravated murder and one count of

possession of criminal tools and was sentenced to life in prison.                     He was

subsequently paroled with the condition he not commit any new offenses. On June

9, 2011, in the Court of Common Pleas of Franklin County, Ohio Rembert entered

an Alford Plea to one count of felonious assault in violation of R.C. 2903.11, a

felony of the second degree and one count of intimidation of a crime victim or

witness in violation of R.C. 2921.04, a felony of the third degree. The trial court

imposed a sentence of five years of community control and no direct appeal was

taken from the sentences. Later, Rembert was found to have violated the terms of

his parole in his Cuyahoga County case and was returned to prison.1




1
    The record does not disclose whether Rembert took an appeal from this judgment.

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Case No. 9-20-01


       {¶3} On August 19, 2019, Rembert filed a complaint for declaratory

judgment in the Court of Common Pleas of Marion County, Ohio alleging that his

criminal sentences imposed in the Franklin County case in 2011, were illegal and

unconstitutional. Doc. 1. On September 23, 2019, the State filed a motion to

dismiss the complaint alleging that Rembert was attempting to use a declaratory

judgment action in place of a direct appeal. Doc. 6. The trial court granted the

motion to dismiss finding it lacked jurisdiction to grant relief. Doc. 12, 13. Rembert

brings this appeal from that judgment and raises the following assignments of error

on appeal.

       1. The trial court erred by dismissing the complaint for failure
       to file a direct appeal and bypassing the special statutory
       proceeding for post-conviction petitions.

       2. The trial court erred by dismissing the complaint as being
       barred by the statute of limitations.

       3. The trial court erred by dismissing the complaint without
       first declaring what rights the parties have.

       4. The trial court erred by dismissing the complaint for lack of
       jurisdiction.

       5. The trial court erred by dismissing the complaint for failure
       to state a claim upon which relief can be granted.

       6. The trial court erred by failing to determine Appellant’s
       constitutional rights with respect to his parole.

       {¶4} As all of the assignments of error assert that the trial court erred by

dismissing the complaint, they will be addressed together. All of the assignments


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Case No. 9-20-01


of error are overruled on the authority of Lingo et al. v. The State of Ohio et al., 138

Ohio St.3d 427, 2014-Ohio-1052, 7 N.E.3d 1188. In Lingo, the Supreme Court of

Ohio stated as follows.

       A common pleas court generally has the power under the
       Declaratory Judgment Act to “declare rights, status, and other
       legal relations, and its “declaration has the effect of a final
       judgment or decree.” R.C. 2721.02(A). But it must be
       remembered that the common pleas court has the power to grant
       declaratory relief only if “such relief is already within its
       jurisdiction to grant.” Malloy v. Westlake, 52 Ohio St.2d 103, 105,
       370 N.E.2d 457 (1977). The declaratory—judgment statutes “do
       not extend the jurisdiction as to the subject matter upon which a
       court may act,” but instead “extend the power of the court to
       grant declaratory relief within its respective jurisdiction.” State
       ex rel. Foreman v. Bellefontaine Mun. Court, 12 Ohio St.2d 26, 28,
       231 N.E.2d 70 (1967).

       The act states:

              [A]ny person whose rights, status, or other legal
              relations are affected by a constitutional provision,
              statute, [or] rule * * * may have determined any
              question of construction or validity arising under the
              * * * constitutional provision, statute, [or] rule, * * *
              and obtain a declaration of rights, status, or other
              legal relations under it.

       R.C. 2721.03. The purpose of the act is to provide a mechanism
       by which parties can “eliminate uncertainty regarding their legal
       rights and obligations” quickly and conclusively. Mid–American
       Fire & Cas. Co. v. Heasley, 113 Ohio St.3d 133, 2007-Ohio-1248,
       863 N.E.2d 142, ¶ 8.

       Although the purpose of the act is to declare rights in the face of
       uncertainty, it is well settled that declaratory judgment is not a
       proper vehicle for determining whether rights that were
       previously adjudicated were properly adjudicated. Clark v.
       Memolo, 174 F.2d 978, 981 (D.C.Cir.1949); Olney v. Ohio, 341 F.2d

                                          -4-
Case No. 9-20-01


      913 (6th Cir.1965); Shannon v. Sequeechi, 365 F.2d 827, 829 (10th
      Cir.1966); Wilson v. Collins, 10th Dist. Franklin No. 10AP–511,
      2010-Ohio-6538, 2010 WL 5550704, ¶ 9; State v. Brooks, 133 Ohio
      App.3d 521, 525, 728 N.E.2d 1119 (4th Dist.1999); Moore v.
      Mason, 8th Dist. Cuyahoga No. 84821, 2004-Ohio-1188, 2005 WL
      628512, ¶ 14; Gotel v. Ganshiemer, 11th Dist. Ashtabula No. 2008–
      A–0070, 2009-Ohio-5423, 2009 WL 3255361, ¶ 44; Burge v. Ohio
      Atty. Gen., 10th Dist. Franklin No. 10AP–856, 2011-Ohio-3997,
      2011 WL 3557115, ¶ 10. For direct and collateral attacks alike,
      declaratory judgment is simply not a part of the criminal
      appellate or postconviction review process. Wilson at ¶ 9; Brooks
      at 525–526, 728 N.E.2d 1119; Moore at ¶ 14; Gotel at ¶ 44. Ohio's
      Criminal Rules and statutes provide for the direct review of
      criminal judgments through appeal, and collateral attacks
      through postconviction petitions, habeas corpus, and motions to
      vacate. Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115 Ohio St.3d
      375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 20. A declaratory-
      judgment action cannot be used as a substitute for any of these
      remedies. Clark at 981; Shannon at 829; Wilson at ¶ 9; Moore at
      ¶ 14; Gotel at ¶ 44; Burge at ¶ 10.


Lingo, supra at ¶ 42-44. Additionally, the Court noted that although a court has the

inherent authority to vacate its own judgments, the power to overrule judgments of

another court is exclusively conferred by the Ohio Constitution on courts of direct

review. Id at ¶ 48. Thus, a common pleas court in one county has no authority to

review a judgment entered in a common pleas court in a different county as that is

not within the subject matter jurisdiction of a common pleas court. Id.

      {¶5} Here, Rembert is challenging a sentence imposed in the Court of

Common Pleas of Franklin County, Ohio and is asking the Court of Common Pleas

of Marion County, Ohio to vacate it. The Marion County Court of Common Pleas




                                        -5-
Case No. 9-20-01


lacks subject matter jurisdiction to conduct a review of a judgment entered in

another common pleas court.2

        {¶6} Additionally, Rembert’s criminal proceeding was concluded.                              The

appropriate remedy in cases such as this is a direct appeal or a petition for

postconviction relief, not to file a complaint for declaratory judgment.                            R.C.

2953.21. A trial court may not grant declaratory judgments in matters committed

to special statutory proceedings. State ex rel. Albright v. Delaware Cty. Court of

Common Pleas, 60 Ohio St.3d 40, 42, 572 N.E.2d 1387 (1991). If a trial court were

to do so, it would be reversed on appeal as the only correct ruling is to dismiss the

action for lack of jurisdiction. Id. Since the trial court dismissed the appeal, which

was its only correct ruling given the facts in this case, the trial court’s judgment was

not in error and its dismissal is affirmed. The assignments of error are overruled.

        {¶7} Having found no prejudice in the particulars assigned and argued, the

judgment of the Court of Common Pleas of Marion County is affirmed.

                                                                                Judgment Affirmed

SHAW, P.J. and PRESTON, J., concur.

/hls




2
 This Court notes that although as a court of direct review, we have subject matter jurisdiction to review
common pleas judgments in 17 of Ohio’s 88 counties, we lack jurisdiction to rule on a judgment from the
Court of Common Pleas of Franklin County, Ohio as that county is not one of the 17 counties subject to our
authority.

                                                   -6-
