[Cite as State ex rel. Conomy v. Rohrer,

.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO on the relation of JUDGES: CHRISTOPHER P. CONOMY Hon. Patricia A. Delaney, P.J. Hon. William B. Hoffman, J. Relator Hon. Andrew J. King, J.

-vs- Case No. 24 CAD 07 0042

JUDGE KYLE ROHRER, ET AL., OPINION

Respondents

CHARACTER OF PROCEEDINGS: Writs of Mandamus and Procedendo

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: November 22, 2024

APPEARANCES:

For Relator For Respondents

CHRISTOPHER P. CONOMY AARON M. GLASGOW 3050 Brookview Drive RYAN C. SPITZER Galena, Ohio 43021 ISAAC WILES & BURKHOLDER, LLC 2 Miranova Place, 7th Floor Columbus, Ohio 43215 Delaware County, Case No. 24 CAD 07 0042 2

Hoffman, J. {¶1} On July 15, 2024, Relator Christopher P. Conomy filed a Verified Original

Petition in Mandamus and Procedendo with a demand for damages under R.C. 2731.11.

Conomy’s action focuses on two criminal cases that were dismissed by the Delaware

Municipal Court because he was found to be “incompetent and nonrestorable.” Conomy

asks this Court to take appropriate action to clear the record of alleged false statements

and dismiss the criminal actions with prejudice.

{¶2} Conomy also asks for an order commanding Judge Rohrer to hear and

decide a pending motion in Delaware Municipal Court Case No. 23CRB01129. Finally,

Conomy seeks money damages, including punitive and pre-judgment interest damages,

for emotional distress, psychological distress, loss of income, loss of consortium and

economic and non-economic damages allegedly caused by the wrongful behavior of

Respondents Judge Kyle Rohrer, Amelia Bean-DeFlumer, Natalia Harris and the City of

Delaware, Ohio.

{¶3} For the following reasons, we find Conomy is not entitled to the requested

mandamus and procedendo relief or the requested damages.

I. Background

{¶4} On September 25, 2023, Conomy alleges that Respondent Judge Kyle

Rohrer wrongfully found him incompetent to stand trial in Delaware Municipal Court Case

No. 23CRB00517. Conomy states this was done, without his knowledge, under an

unwritten, collusive stipulation between a public defender and Respondent Amelia Bean-

DeFlumer, the prosecutor for the City of Delaware, and was overseen by Respondent

City of Delaware attorney, Natalia Harris. Delaware County, Case No. 24 CAD 07 0042 3

{¶5} Respondent Judge Rohrer’s September Entry & Order “finds there is not a

substantial probability that Defendant will become competent to stand trial within the time

allotted by law, even if provided a course of treatment.” Respondent Judge Rohrer

dismissed the case against Conomy. The decision to dismiss the criminal case against

Conomy occurred following a Competency to Stand Trial Report dated September 19,

2023, concluded there was “not a substantial probability that Mr. Conomy will be restored

to competency within the limited time allotted by law.” (Emphasis in original.)

{¶6} Conomy claims he was not given notice that a report had been prepared

and submitted to the trial court. He further claims he found out about the report when the

public defender forwarded a copy of the September 2023 order to him.

{¶7} The City of Delaware subsequently filed criminal charges against Conomy

for domestic violence, menacing and disorderly conduct in Delaware Municipal Court

Case No. 23CRB01129. On February 19, 2024, Respondent Bean-DeFlumer filed a

motion to dismiss without prejudice. The motion stated Conomy was “incompetent and

nonrestorable.” On the same day, Respondent Judge Rohrer granted the motion and

dismissed the charges without prejudice.

{¶8} The two criminal cases arise from domestic disturbances between Conomy

and his wife. Conomy states in his petition that he is presently in a contentious divorce

and custody fight with his wife. Conomy’s mother-in-law has temporary custody of the

couple’s two minor children. Conomy maintains these criminal matters and the finding

that he is incompetent and nonrestorable to stand trial have negatively reflected upon him

in the divorce proceedings by impacting his ability to obtain temporary custody of his

children and limiting his contact with the children. Conomy further maintains “the false Delaware County, Case No. 24 CAD 07 0042 4

declarations of Petitioner’s1 incompetence have drawn that case [divorce case] into chaos

and has caused serious emotional and psychological harm to Petitioner (sic) and his

children.” Petition, ¶ 4.

{¶9} Conomy claims he has no clear procedural vehicle to oppose the finding of

incompetency and no right to appeal from the dismissals of the two criminal cases.

Therefore, he requests the following relief in this original action:

1. A writ of mandamus commanding Respondent Judge Rohrer to

remove the false, defamatory and collusive September 25, 2023 entry in

Delaware Municipal Case No. 23CRB00517, take other appropriate action

to clear the record of false statements and dismiss the action with prejudice.

2. A writ of procedendo commanding Respondent Judge Rohrer to

hear and decide the pending March 15, 2024 motion in Delaware Municipal

Court Case No. 23CRB01129, correct the record of that matter to remove

false statements, and dismiss the action with prejudice.

3. A writ of mandamus commanding Respondents Bean-DeFlumer,

Harris and the City of Delaware to withdraw all charges in both cases, to

take other appropriate actions to clear Conomy’s name including

cooperating with all subpoenas and requests for production in any matter

affected by or relating to anything arising in those cases without asserting

any privilege or withholding any evidence.

1 Conomy is a “relator” in this original action and not a “petitioner.” Delaware County, Case No. 24 CAD 07 0042 5

4. Money damages as in a civil action under R.C. 2731.11 for

emotional distress, psychological distress, loss of income, loss of

consortium, and other economic and non-economic damages caused by

the wrongful behavior of the Respondents, including punitive damages and

pre-judgment interest.

5. Costs of litigation and any other relief he is entitled to by equity

and law.

II. Analysis

A. Mandamus and procedendo elements

{¶10} “Mandamus is an extraordinary remedy, to be issued with great caution and

discretion and only when the way is clear.” State ex rel. Taylor v. Glasser,

(1977). “To be entitled to a writ of mandamus, a relator must carry the burden

of establishing that he or she has a clear legal right to the relief sought, that the

respondent has a clear legal duty to perform the requested act, and that the relator has

no plain and adequate remedy in the ordinary course of law.” State ex rel. Van Gundy v.

Indus. Comm.,

, ¶ 13. Relator has the burden of establishing all three

elements by clear and convincing evidence. State ex rel. Mars Urban Solutions, LLC v.

Cuyahoga Cty. Fiscal Officer,

.

{¶11} With regard to procedendo relief, “[a] writ of procedendo is appropriate

when a court has either refused to render a judgment or has unnecessarily delayed

proceeding to judgment.” State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas,

(1995), citing State ex rel. Doe v. Tracy,

, 200 Delaware County, Case No. 24 CAD 07 0042 6

(12th Dist. 1988). Relator must establish a clear legal right to the relief requested and

there must be no adequate remedy at law.

, citing State ex rel. Brown v.

Shoemaker,

(1988).

B. Civ.R. 12(C) standard

{¶12} Civ.R. 12(C) motions are specifically for resolving questions of law.

Peterson v. Teodosio,

(1973). Dismissal under Civ.R. 12(C) “is

appropriate where a court (1) construes the material allegations in the complaint, with all

reasonable inferences to be drawn therefrom, in favor of the nonmoving party as true,

and (2) finds beyond doubt, that the plaintiff could prove no set of facts in support of his

claim that would entitle him to relief.” State ex rel. Midwest Pride IV, Inc. v. Pontious,

(1996), citing Lin v. Gatehouse Constr. Co.,

(8th Dist. 1992). “Thus, Civ.R. 12(C) requires a determination that no material factual

issues exist and that the movant is entitled to judgment as a matter of law.”

citing

Burnside v. Leimbach,

(10th Dist. 1991).

C. Conomy is not entitled to mandamus relief regarding the September 25, 2023 Entry & Order because he has an adequate remedy at law.

{¶13} In Delaware Municipal Court Case No. 23CRB00517 Conomy was charged

with a violation of R.C. 2903.21(A), aggravated menacing, a misdemeanor of the first

degree. Conomy seeks mandamus relief ordering Respondent Judge Rohrer to remove

his September 25, 2023 Entry & Order entered in this case because it is allegedly false,

defamatory and collusive. He also asks that the criminal case be dismissed with prejudice

rather than without prejudice.

{¶14} The challenged Entry & Order finds Conomy incompetent to stand trial and

further concludes, “there is not a substantial probability that Defendant [Conomy] will Delaware County, Case No. 24 CAD 07 0042 7

become competent to stand trial within the time allotted by law, even if provided a course

of treatment.” The trial court dismissed the case.

{¶15} We conclude Conomy has an adequate remedy at law by way of the sealing

statutes, R.C. 2953.32 and 2953.33. “An adequate remedy in the ordinary course of the

law includes equitable as well as legal remedies; and where there is an adequate remedy,

mandamus will not lie.” (Cleaned up.) State ex rel. Doe v. Gallia City Common Pleas

Court,

, citing State ex rel. Pressley v. Indus. Comm.,

(1967), quoting 35 Ohio Jur. 2d, Mandamus, ¶ 31, at 278. Further, “‘[t]he

alternative must be complete, beneficial, and speedy in order to constitute an adequate

remedy at law.’”

citing State ex rel. Ullman v. Hayes,

, ¶ 8.

{¶16} We find the Doe case instructive for our analysis. Doe involved a relator

who had criminal records sealed in 2013 under R.C. 2953.52. Id. at ¶ 1. However, the

appellate court’s decision remained available on the court’s website. Id. at ¶ 4. Doe filed

a motion, in the court of appeals, that somehow resulted in the court of appeals making

his appellate records public again. Id. Thereafter, Doe filed an emergency motion in the

common pleas court for an order resealing his records. Id. at ¶ 5. The trial court never

took action to enforce the 2013 order or address Doe’s motion. Id. Doe eventually filed a

writ of mandamus under seal with the Supreme Court. Id. at ¶ 6.

{¶17} In response to the writ, the common pleas court asserted the sealing statute

provided Doe with an adequate remedy at law. Id. at ¶ 10. The Court disagreed and

concluded the right to notify any public office about a sealing order, under R.C.

2953.53(B), was not a legal or equitable remedy and therefore, was not an adequate

remedy at law that would preclude the issuance of an extraordinary writ. Id. Delaware County, Case No. 24 CAD 07 0042 8

{¶18} Although Doe is factually distinguishable, its legal analysis is on point for

purposes of the facts presented here. Doe supports the conclusion that the ability to seal

or expunge a record is an adequate remedy at law. However, the right to notify a public

office about a sealing order is not a legal or equitable remedy that would preclude the

issuance of an extraordinary writ. Therefore, we conclude Conomy’s ability to seal or

expunge his record in Delaware case number 23CRB00517 provides him with an

adequate remedy at law that precludes the issuance of a writ of mandamus.

{¶19} Further, Conomy is asking this Court to control Respondent Judge Rohrer’s

judicial discretion. Conomy asks us to order Judge Rohrer to remove an Entry & Order

filed on September 25, 2023, and to order the above-referenced criminal case dismissed

with prejudice. Essentially, Conomy is asking us to order Judge Rohrer to alter the

outcome of his decision, over which Judge Rohrer has already exercised his discretion,

and to order the exercise of that discretion in his favor.

{¶20} R.C. 2731.03 prohibits us from granting such relief. This statute titled, “Writ

does not control judicial discretion” prohibits a court from issuing a writ of mandamus to

alter the inferior court’s exercise of its discretion. Patterson v. D’Apolito,

(7th Dist.). Thus, “mandamus will not lie to control judicial discretion, even if that

discretion is abused.”

citing State ex rel. Rashada v. Pianka,

, ¶ 3.

{¶21} Therefore, Conomy does not have a clear legal right to the requested relief.

He is not entitled to a writ of mandamus ordering Respondent Judge Rohrer to remove

his September 25, 2023 Entry & Order entered in Delaware Municipal Case Number

23CRB00517. Conomy is also not entitled to a writ of mandamus ordering Respondent

Judge Rohrer to dismiss Delaware Municipal Case Number 23CRB00517. Delaware County, Case No. 24 CAD 07 0042 9

D. Conomy is not entitled to procedendo relief with regard to the pending March 15, 2024 motion to amend the dismissal entry in Delaware Municipal Case No. 23CRB01129.

{¶22} On March 15, 2024, Conomy filed a “Motion of Former Defendant

Christopher P. Conomy to Amend Dismissal Entry and for Sanctions Against Amelia

Bean-DeFlumer and Natalia Harris." The motion was filed after his case was dismissed

under Crim.R. 48(A) on February 19, 2024. Because the case was dismissed, the trial

court lacks jurisdiction to address Conomy’s pending motion.

{¶23} Crim.R. 48 provides for the dismissal of an indictment, information, and

complaint. Under this rule, once a case is dismissed it is terminated. State ex rel. Jones

v. Cassidy,

(8th Dist.), citing State ex rel. Flynt v. Dinkelacker, 2004-

Ohio-1695, ¶ 14 (1st Dist.). Thus, after dismissal, with limited exception, “‘the court loses

jurisdiction and the case ends.’”

quoting State v. DaRe,

, ¶ 14 (7th

Dist.), citing State v. Sutton,

(9th Dist. 1979). See also Flynt at

¶ 20 where the court explained, “[w]hen a case is dismissed, it is over – except in the

case where the dismissal is appealed.”

{¶24} Here, the case ended on February 19, 2024, when the trial court dismissed

it without prejudice. The motion moving to dismiss indicates Conomy is incompetent and

nonrestorable. Therefore, there is nothing for Respondent Judge Rohrer to amend and

nothing upon which to base sanctions. For these reasons, Conomy is not entitled to relief

in procedendo because he has not established a clear legal right to the requested relief. Delaware County, Case No. 24 CAD 07 0042 10

E. Conomy is not entitled to mandamus relief, in both criminal cases commanding Respondents Bean-DeFlumer, Harris and the City of Delaware to retract alleged defamatory statements and withdraw all charges.

{¶25} In support of this requested relief, Conomy first asks that we direct

Respondents Bean-Deflumer, Harris and the City of Delaware to withdraw or direct their

supervisors to withdraw all alleged false statements about him. Conomy is not entitled to

mandamus relief regarding any alleged false statements made by these Respondents

because he has an adequate remedy at law.

{¶26} If Conomy seeks relief for alleged false statements against him, his

appropriate remedy is to file a defamation action in the common pleas court. See

Newsome v. Wolaver,

(Relator sought mandamus relief for

slanderous statements about him and the court of appeals held, “[i]f [relator] seeks relief

for the alleged spreading of slander about him, his appropriate remedy is to file a civil suit

in the court of common pleas. Thus, as [relator] has an adequate remedy at law available,

mandamus will not lie.”)

{¶27} Conomy next seeks mandamus relief ordering these Respondents to

withdraw all of the charges against him in both criminal cases. As with judicial discretion,

we have no authority to control prosecutorial discretion. The prosecution of criminal

charges is within the authority conferred upon a prosecutor under R.C. 309.08. Once a

“prosecutor has probable cause to believe that the accused committed an offense defined

by statute, the decision whether or not to prosecute, and what charge to file or bring before

a grand jury, generally rests entirely in his discretion.” State v. Ballard,

(1st Dist. 2016), quoting Bordenkircher v. Hayes,

(1978). Delaware County, Case No. 24 CAD 07 0042 11

{¶28} Thus, “‘[w]hen a court, tribunal, or official is invested with discretion and is

acting within the scope of jurisdiction conferred, a writ of prohibition will not issue to control

the exercise of such discretion.’” (Emphasis added.) State ex rel. Briggs v. Corabi,

, *2 (7th Dist. 1991), quoting 67 Ohio Jurd.3d, Mandamus, Procedendo and

Prohibition, ¶ 177, at 487. In Briggs, relator filed a writ of prohibition to restrain the

prosecutor from conducting a pretrial on certain misdemeanor charges instead arguing

for aggravated assault charges. Id. at *1. The Briggs court concluded prohibition was not

an available remedy against the prosecutors because prohibition does not lie to prohibit

matters of discretion. Id.

{¶29} Here, as in Briggs, Conomy requests mandamus relief ordering that

Respondents withdraw all criminal charges filed against him. We decline to grant the

requested relief because in filing those charges against Conomy, Respondents used their

discretion and acted within the scope of jurisdiction conferred to them under R.C. 309.08.

We will not issue a writ of mandamus to control Respondents’ discretion on such matters.

F. Conomy is not entitled to money damages, and we lack original jurisdiction over an action for a money judgment.

{¶30} Conomy next maintains that he is entitled to monetary damages for

emotional distress, psychological distress, loss of income, loss of consortium, and other

economic and non-economic damages caused by the wrongful behavior of Respondents,

including punitive damages and pre-judgment interest.

{¶31} The Ohio Supreme Court explained in State ex rel. Maddox v. Lincoln Hts.,

, ¶ 10: Delaware County, Case No. 24 CAD 07 0042 12

Article IV, Section 2(B)(1) of the Ohio Constitution does not allow us

to approve money settlements in the context of an original action. The

constitutional provision grants us jurisdiction in mandamus to issue a writ

ordering a government officer to fulfill a duty imposed by law, but it does not

grant us original jurisdiction to preside over the distribution of money

payments in lieu of or in conjunction with a writ.

{¶32} Therefore, this Court lacks jurisdiction to award the damages requested by

Conomy in the context of this original action.

III. Conclusion {¶33} For the foregoing reasons, we deny Conomy’s writs of mandamus and

procedendo and grant Respondents’ Motion for Judgment on the Pleadings under Civ.R.

12(C). Conomy can prove no set of facts entitling him to relief. We also deny Conomy’s

request for costs of litigation. The clerk of courts is hereby directed to serve upon all

parties not in default notice of this judgment and its date of entry upon the journal. See

Civ.R. 58(B).

{¶34} RESPONDENTS’ MOTION FOR JUDGMENT ON THE PLEADINGS IS

GRANTED.

{¶35} RELATOR’S VERIFIED ORIGINAL PETITION IN MANDAMUS AND

PROCEDENDO IS DISMISSED. Delaware County, Case No. 24 CAD 07 0042 13

{¶36} RELATOR’S DEMAND FOR DAMAGES UNDER R.C. 2731.11 IS DENIED.

{¶37} COSTS TO RELATOR.

{¶38} IT IS SO ORDERED.

By: Hoffman, J. Delaney, P.J. and King, J. concur