[Cite as State ex rel. McCuller v. Calabrese, 2011-Ohio-3992.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 96764




                              STATE OF OHIO EX REL.
                              CHARLES D. MCCULLER
                                                            RELATOR
                                                      vs.

                 HONORABLE DEENA R. CALABRESE
                                                            RESPONDENT




                                          JUDGMENT:
                                         WRITS DENIED


                                 Writs of Mandamus and Prohibition
                                        Motion No. 444843
                                         Order No. 446548


RELEASE DATE:               August 5, 2011
                                         2

FOR RELATOR:

Charles McCuller, pro se
Inmate #482-821
Allen Correctional Instiute
P.O. Box 4501
Lima, Ohio 45802


ATTORNEYS FOR RESPONDENT:

William D. Mason
Cuyahoga County Prosecutor

By: James E. Moss
Assistant County Prosecutor
Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




KENNETH A. ROCCO, P.J.:

      {¶ 1} On May 6, 2011, the relator, Charles McCuller,            commenced this

mandamus and prohibition action against the respondent, Judge Deena Calabrese, to

prevent the continued use and correct the results of unauthorized jurisdiction in the

underlying cases, State of Ohio v. Charles McCuller, Cuyahoga Common Pleas Court

Case Nos. CR-49139 and 52011. McCuller maintains that in the underlying cases, the

juvenile court did not bind him over to the common pleas court for further prosecution,

and thus, those cases are void ab initio. On May 26, 2011, the respondent, through the
                                              3

Cuyahoga County Prosecutor, moved for summary judgment; attached as exhibits to this

motion are copies of the docket from the underlying cases showing that the juvenile court

did bind him over in the underlying cases. McCuller filed a brief in opposition on July

25, 2011.    For the following reasons, this court grants the respondent’s motion for

summary judgment and denies the complaint for writs of mandamus and prohibition.

       {¶ 2} Charles McCuller was born on April 2, 1962; thus, he would turn 18 in

April 1980. In June 1979, McCuller faced multiple charges of juvenile delinquency.

In Cuyahoga County Juvenile Court Case No. 7906998 McCuller was charged with (1)

breaking and entering/trespass and (2) possession of criminal tools. This case later

became Cuyahoga County Court of Common Pleas Case No. CR-49139. In Cuyahoga

County Juvenile Court Case No. 7909646 McCuller was accused of kidnapping and rape.

 This case became Cuyahoga County Common Pleas Court Case No. 52011.

Similarly, other juvenile court cases became Cuyahoga County Court of Common Pleas

Case Nos. CR-48919 and CR-48254.1

       {¶ 3} McCuller attaches the front pages of the dockets from the four criminal

court of common pleas cases. The front pages for Case Nos. CR-48254 and CR-48919

include the notation “INDICTED BINDOVER.”                   The front pages for Case Nos.

CR-49139 and CR-52011 include the notation “INDICTED ORIGINAL.”                      From these

       1
           From the materials presented by the parties, this court cannot determine with certainty
which of McCuller’s other juvenile cases align with the common pleas court cases. Fortunately,
such information is not necessary to the determination of this writ action.
                                                4

notations McCuller infers that the juvenile court did not make the necessary bindover

findings pursuant to then R.C. 2151.262 and Juv.R. 30 for those two cases. McCuller

continues that without those necessary findings, the common pleas court would be

without jurisdiction to hear the cases, and the writs of mandamus and prohibition would

lie to prevent any further actions on those cases and to correct the results of the

unauthorized exercise of jurisdiction.

       {¶ 4} 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 for the two subject cases.     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, in

both cases the juvenile court ruled that McCuller be bound over for further proceedings.

       {¶ 5} In Harless v. Willis Day Warehouse Company, Inc. (1978), 54 Ohio St.2d

64, 66, 375 N.E.2d 46, the Supreme Court of Ohio stated the appropriate standard for

granting summary judgment: “Appositeness of rendering a summary judgment hinges

upon the tripartite demonstration: (1) that there is no genuine issue as to any material fact;

       2
           The bindover statute is now R.C. 2152.12.
                                             5

(2) that the moving party is entitled to judgment as a matter of law, and (3) that

reasonable minds can come to but one conclusion, and that conclusion is adverse to the

party against whom the motion for summary judgment is made, who is entitled to have

the evidence construed most strongly in his favor.”        Furthermore, when a motion for

summary judgment is made, the nonmoving party may not rest on the mere allegations of

his pleading, but his response, by affidavit or as otherwise provided in Civ.R. 56, must set

forth specific facts establishing the existence of a genuine triable issue. State ex rel.

Flagner v. Arko, 83 Ohio St.3d 176, 177, 1998-Ohio-127, 699 N.E.2d 62.

       {¶ 6} In the present case the     judge’s exhibits establish that the requisites of the

statute and the rule were fulfilled and that McCuller was bound over.      McCuller’s claim

is factually unfounded. Significantly, McCuller’s Loc.App.R. 45 supporting affidavit in

substance stated only the following: “I am seeking an original action in Mandamus and

Prohibition to prevent any future unauthorized exercise of jurisdiction and to correct the

results of prior jurisdictional unauthorized actions.” He does not swear that for the two

subject cases there were no bindover hearings and no findings of probable cause.        Thus,

his writ action fails because it is factually unfounded.

       {¶ 7} Moreover, the principles of mandamus and prohibition are well established.

For mandamus (1) the relator must have a clear legal right to the requested relief, (2) the

respondent must have a clear legal duty to perform the requested relief and (3) there must

be no adequate remedy at law.      State ex rel. Ney v. Niehaus (1987), 33 Ohio St.3d 118,
                                            6

515 N.E.2d 914. Furthermore, mandamus is not a substitute for appeal. State ex rel.

Keenan v. Calabrese (1994), 69 Ohio St.3d 176, 631 N.E.2d 119; State ex rel. Daggett v.

Gessaman (1973), 34 Ohio St.2d 55, 295 N.E.2d 659; and State ex rel. Pressley v.

Industrial Commission of Ohio (1967), 11 Ohio St.2d 141, 228 N.E.2d 631, paragraph

three of the syllabus. If the relator had an adequate remedy, regardless of whether it was

used, relief in mandamus is precluded. State ex rel. Tran v. McGrath, 78 Ohio St.3d 45,

1997-Ohio-245, 676 N.E.2d 108 and State ex rel. Boardwalk Shopping Center, Inc. v.

Court of Appeals for Cuyahoga County (1990), 56 Ohio St.3d 33, 564 N.E.2d 86.

Similarly, for prohibition (1) the respondent against whom it is sought is about to exercise

judicial power, (2) the exercise of such power is unauthorized by law, and (3) there is no

adequate remedy at law. State ex rel. Largent v. Fisher (1989), 43 Ohio St.3d 160, 540

N.E.2d 239.   Furthermore, if a petitioner had an adequate remedy, relief in prohibition is

precluded, even if the remedy was not used. State ex rel. Lesher v. Kainrad (1981), 65

Ohio St.2d 68, 417 N.E.2d 1382, certiorari denied (1981), 454 U.S. 854, 102 S.Ct. 300,

70 L.Ed.2d 147; Cf. State ex rel. Sibarco Corp. v. City of Berea (1966), 7 Ohio St.2d 85,

218 N.E.2d 428, certiorari denied (1967), 386 U.S. 957, 87 S.Ct. 1022, 18 L.Ed.2d 104.

       {¶ 8} 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.        State ex rel. Torres v.

Simmons (1981), 68 Ohio St.3d 118, 428 N.E.2d 862; State ex rel. Wehrung v. Kinklacker
                                           7

(Oct. 13, 2000), Hamilton App. No. C-000449; and State ex rel. Campbell v. Carroll,

Cuyahoga App. No. 81615, 2003-Ohio-181.

       {¶ 9} 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. State ex rel. Cotton v. Ghee, 84 Ohio St.3d 54,

1998-Ohio-679, 701 N.E.2d 989; and State ex rel. Thomas v. Ghee, 81 Ohio St.3d 191,

1998-Ohio-461, 690 N.E.2d 6.

       {¶ 10} Accordingly, this court grants the respondent’s motion for summary

judgment and denies the complaint for writs of mandamus and prohibition. Costs assessed

against the relator. This court directs the Clerk of the Eighth District Court of Appeals

to serve upon the parties notice of this judgment and its date of entry upon the journal.

Civ.R. 58(B).

       Writs denied.



__________________________________________
KENNETH A. ROCCO, PRESIDING JUDGE

KATHLEEN ANN KEOUGH and
EILEEN A. GALLAGHER, J., CONCUR
