State ex rel. Payne v. Reinbold (Slip Opinion)
State ex rel. Payne v. Reinbold (Slip Opinion)
Opinion
*1137 *83 {¶ 1} Appellant, Brolin D. Payne, appeals the dismissal of his complaint for a writ of procedendo against appellees, retired Judge Richard D. Reinbold Jr., a visiting judge sitting in the underlying case by assignment, and Summit County Court of Common Pleas Judge Mary Margaret Rowlands. For the reasons set forth below, we affirm the judgment of the court of appeals.
Background
{¶ 2}
In his complaint, Payne alleged the following facts, which we accept as true for purposes of considering his appeal from the dismissal of his complaint.
See
State ex rel. Smith v. McGee
,
{¶ 3} Judge Rowlands was the original judge assigned to hear a 2012 criminal case involving Payne, State v. Payne , Summit C.P. No. CR-2012-01-0028. At some point in time, Judge Rowlands requested that the chief justice of this court assign a visiting judge to the case.
{¶ 4} On July 16, 2012, Judge Reinbold held a hearing on Payne's motion to suppress evidence and his motion in limine. On July 18, Judge Reinbold entered judgment entries denying both motions.
{¶ 5} Judge Reinbold presided over Payne's trial from July 23 to July 25, 2012. The jury convicted Payne of rape and gross sexual imposition. Judge Rowlands entered a journal entry of conviction on July 27, 2012.
{¶ 6} On August 20, 2012, the chief justice appointed Judge Reinbold to hear Payne's criminal case, "effective July 20, 2012."
{¶ 7} Judge Reinbold held a sentencing hearing on September 5, 2012. Thereafter, Payne was sentenced to 25 years to life in prison in an entry journalized on September 10.
*84
{¶ 8}
The court of appeals affirmed Payne's convictions.
State v. Payne
, 9th Dist. Summit No. 26655,
{¶ 9} On May 23, 2017, he commenced the present action for a writ of procedendo in the Ninth District Court of Appeals. He alleged that he had never received a final, appealable sentencing order because "Judge Reinbold did not have the authority to conduct the suppression hearing and trial and * * * Judge Rowlands did not have the authority to issue the conviction and sentencing order on September 10, 2012 after being replaced by * * * Judge Reinbold on August 20, 2012." He asked the court to order Judge Reinbold and/or Judge Rowlands to issue a "proper" final sentencing entry.
{¶ 10} Judges Reinbold and Rowlands filed a motion to dismiss, to which Payne filed a brief in opposition. On September 13, 2017, the Ninth District dismissed the case sua sponte because Payne had an adequate remedy at law. Payne appealed.
Analysis
{¶ 11}
"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. Weiss v. Hoover
,
{¶ 12}
Payne challenges the finality of the sentencing entry, first by challenging Judge Reinbold's jurisdiction to preside over the trial: "[Because Judge] Reinbold held the trial before the certificate of assignment was issued and journalized by the Summit County Clerk * * * [he] did not have the authority to conduct the trial and the jury guilty verdict must be determined a nullity." But " '[a] claim of improper assignment of a judge can generally be adequately raised by way of appeal.' "
State ex rel. Black v. Forchione
,
{¶ 13}
Second, Payne contends that after the assignment of Judge Reinbold, Judge Rowlands was divested of jurisdiction to sign the conviction entry. But a nonassigned judge is permitted to perform purely ministerial acts.
See, e.g.
,
State ex rel. Harris v. Hamilton Cty. Court of Common Pleas
,
{¶ 14}
In his complaint, Payne also challenged Judge Rowlands's jurisdiction to sign the final sentencing order, under the same theory. Of course, if Payne were correct that Judge Rowlands no longer had any jurisdiction over this case as a result of the assignment order, then he would not be entitled to a writ of procedendo against her. But in his merit brief, Payne changes his theory: he now asserts that the signature on the sentencing entry does not belong to Judge Rowlands
or
to Judge Reinbold. However, Payne did not raise this argument in the court of appeals, and a reviewing court will not consider issues the appellant failed to raise below,
e.g.
,
*1139
State ex rel. Bailey v. Indus. Comm.
,
{¶ 15} We hold that the court of appeals properly dismissed the complaint.
Judgment affirmed.
O'Connor, C.J., and Kennedy, French, Fischer, and DeWine, JJ., concur.
O'Donnell, J., concurs in judgment only.
DeGenaro, J., not participating.
Reference
- Full Case Name
- The STATE EX REL. PAYNE, Appellant, v. REINBOLD, Judge, Et Al., Appellees.
- Cited By
- 1 case
- Status
- Published
- Syllabus
- Procedendo—Appellant had adequate remedy by way of direct appeal—Court of appeals' dismissal of complaint affirmed.