State ex rel. Sevayega v. Gallagher (Slip Opinion) , 2017 Ohio 8369 ( 2017 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Sevayega v. Gallagher, Slip Opinion No. 2017-Ohio-8369.]
NOTICE
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SLIP OPINION NO. 2017-OHIO-8369
THE STATE EX REL. SEVAYEGA, APPELLANT, v. GALLAGHER, JUDGE,
APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Sevayega v. Gallagher, Slip Opinion No.
2017-Ohio-8369.]
Mandamus—Whether common pleas judge was under clear legal duty to declare
convicted sex offender’s classification void is type of issue that may be
raised on direct appeal—Court of appeals’ denial of complaint for writ
affirmed.
(No. 2016-1453—Submitted June 20, 2017—Decided November 1, 2017.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 104225,
2016-Ohio-5421.
________________
SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} Appellant, Reginald D. Sevayega, appeals the judgment of the Eighth
District Court of Appeals denying his complaint for writs of procedendo and
mandamus. We affirm.
Background
{¶ 2} On July 6, 1993, Sevayega was convicted of rape and other offenses.
He was sentenced by then Cuyahoga County Court of Common Pleas Judge
Terrence O’Donnell. The case was reassigned to Judge Nancy M. Russo in January
1998 and to Judge José A. Villanueva in April 2003, but Judge Villanueva soon
recused himself from the case.
{¶ 3} The administrative judge, Richard J. McMonagle, then assigned the
case to himself. On July 29, 2003, Judge McMonagle held a sex-offender-
classification hearing and classified Sevayega as a sexual predator.
{¶ 4} On January 5, 2015, Sevayega filed a motion to vacate his
classification as a sexual predator. He argued that the judgment was void for lack
of jurisdiction because Judge McMonagle was neither the original sentencing judge
nor “the successor judge.”
{¶ 5} On or about January 10, 2015, Judge McMonagle retired and the case
was reassigned to appellee, Judge Shannon Gallagher.
{¶ 6} On March 11, 2016, Sevayega filed a complaint for writs of
mandamus and procedendo in the Eighth District Court of Appeals. The complaint
alleged that extraordinary relief was warranted to compel Judge Gallagher to rule
on Sevayega’s motion to vacate and to compel her to declare his sexual-predator
classification void.
{¶ 7} On August 12, 2015, Judge Gallagher issued a journal entry denying
Sevayega’s motion to vacate. Judge Gallagher then moved for summary judgment
in the mandamus/procedendo case. Sevayega filed a cross-motion for summary
judgment.
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January Term, 2017
{¶ 8} On August 17, 2016, the court of appeals denied Sevayega’s cross-
motion, granted Judge Gallagher’s motion, and denied the writs. The court held
that in light of Judge Gallagher’s August 2015 journal entry, Sevayega’s complaint
was moot to the extent that it sought to compel a ruling on the motion to vacate.
8th Dist. Cuyahoga No. 104225, 2016-Ohio-5421, ¶ 4. The court rejected
Sevayega’s argument that Judge McMonagle lacked jurisdiction to hold the sex-
offender-classification hearing and noted that in any case, mandamus and
procedendo will issue only to compel the exercise of judicial authority, not to
dictate what the decision should be. Id. at ¶ 5-6.
{¶ 9} Sevayega has appealed from the court of appeals’ denial of a writ of
mandamus to compel Judge Gallagher to declare his sexual-predator classification
void.
Analysis
{¶ 10} To obtain a writ of mandamus, Sevayega must establish, by clear and
convincing evidence, that he has a clear legal right to the requested relief, that Judge
Gallagher has a clear legal duty to provide it, and that Sevayega lacks an adequate
remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth, 131 Ohio
St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6, 13.
{¶ 11} Former R.C. 2950.09(C)(1)(b) provided that the Ohio Department of
Rehabilitation and Correction must decide whether to recommend classifying an
offender as a sexual predator and that if it decides to do so, it must send the
recommendation “to the court that sentenced the offender.” Am.Sub.S.B. No. 260,
151 Ohio Laws, Part I, 1915, 2005, repealed, 2007 Am.Sub.S.B. No. 10. Thus, in
State v. McIntire, 130 Ohio App. 3d 463, 720 N.E.2d 222 (9th Dist.1998), the Ninth
District Court of Appeals held that the Lorain County Court of Common Pleas
lacked jurisdiction to determine a sex offender’s classification because the offender,
a juvenile, had been adjudicated delinquent and committed to the Department of
Youth Services in Hamilton County, not Lorain County.
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SUPREME COURT OF OHIO
{¶ 12} The Eighth District took this reasoning one step farther in State v.
Cole, 8th Dist. Cuyahoga No. 96687, 2011-Ohio-6283. Cole was convicted of a
sex offense in Cuyahoga County, and the classification hearing was held in
Cuyahoga County. But the judge who presided over the hearing was neither the
sentencing judge nor “the successor to that judge” and therefore, according to the
Eighth District, lacked jurisdiction to hold the hearing. Id. at ¶ 18.
{¶ 13} In his first proposition of law, Sevayega relies on Cole to argue that
his classification as a sexual predator is void because Judge McMonagle was
neither the sentencing judge nor the immediate successor to the sentencing judge.
Alternatively, Sevayega asserts that Cole is binding precedent, at least in the Eighth
District, and that Judge Gallagher therefore was under a clear legal duty to apply
its holding and declare his classification void. We do not reach these arguments
because, regardless, Sevayega is not entitled to a writ of mandamus.
{¶ 14} The facts of this case are similar to those in State ex rel. Black v.
Forchione, 144 Ohio St. 3d 149, 2015-Ohio-4336, 41 N.E.3d 414. Black was
convicted of a sex offense after a trial presided over by Judge Haas. After his
release, Black failed to notify the sheriff of a change of residential address, as
required by R.C. 2950.05(A). He was indicted for his failure to do so, and the case
was heard by Judge Forchione. Black sought a writ of mandamus ordering Judge
Forchione to vacate his rulings in the notification case, on the theory that only Judge
Haas had jurisdiction to issue them. The court of appeals dismissed the petition,
and we affirmed, holding that Black had an adequate remedy in the ordinary course
of the law by way of appeal. Id. at ¶ 4, quoting State ex rel. Key v. Spicer, 91 Ohio
St.3d 469, 746 N.E.2d 1119 (2001) (“ ‘a claim of improper assignment of a judge
can generally be adequately raised by way of appeal’ ”).
{¶ 15} If mandamus were available to correct a trial court’s decision that
ignores or misapplies governing law, then extraordinary relief would supplant
direct appeal in nearly every case. Whether Cole required Judge Gallagher to grant
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January Term, 2017
Sevayega’s motion to vacate is precisely the type of issue that may be raised on
direct appeal.
{¶ 16} In his second proposition of law, Sevayega argues that various errors
and constitutional violations occurred at his sex-offender-classification hearing.
These claims were not raised in the complaint and are therefore waived in this court.
State ex rel. DeGroot v. Tilsley, 128 Ohio St. 3d 311, 2011-Ohio-231, 943 N.E.2d
1018, ¶ 9.
{¶ 17} We affirm the judgment of the court of appeals.
Judgment affirmed.
O’CONNOR, C.J., and KENNEDY, FRENCH, O’NEILL, FISCHER, and DEWINE,
JJ., concur.
O’DONNELL, J., not participating.
_________________
Reginald D. Sevayega, pro se.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and James
E. Moss, Assistant Prosecuting Attorney, for appellee.
_________________
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