Bunkley v. State

[Cite as Bunkley v. State, 2020-Ohio-4433.]

IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY

LEBRON BUNKLEY,

Relator,

v.

STATE OF OHIO,

Respondent.

OPINION AND JUDGMENT ENTRY
Case No. 19 MA 0137

Petition for Writ of Mandamus

BEFORE:
Carol Ann Robb, Cheryl L. Waite, Judges and Judge Mary Jane Trapp, Judge of the
Eleventh District Court of Appeals, Sitting by Assignment

JUDGMENT:
Dismissed.

Lebron Bunkley. pro se., P.O. Box 8000, Bradford, Pennsylvania, for Relator and

Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant
Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503,
for Respondent.

Dated: 8/21/20
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PER CURIAM.

{¶1} Relator Lebron Bunkley, proceeding on his own behalf, initiated this original
action by filing a petition for writ of mandamus against Respondent State of Ohio seeking
to compel the Mahoning County Common Pleas Court to rule on a motion he filed in 2016
in one of his criminal cases in that court. Statutory counsel for Respondent is the
Mahoning County Prosecutor’s Office, R.C. 309.09(A), and through Assistant Prosecutor
Ralph M. Rivera, it has responded with a combined answer and motion to dismiss.
Because Respondent has ruled on Relator’s motion, the matter is moot, requiring
dismissal.
{¶2} On July 14, 2011, the Mahoning County Grand Jury issued two indictments
against Relator resulting in his being named as a criminal defendant in two Mahoning
County Common Pleas Courts cases. The first case (2011 CR 00666) stemmed from
events occurring on June 13, 2011, which resulted in the grand jury charging him with two
counts. Count one was failure to comply with an order or signal of a police officer in
violation of R.C. 2921.331(B)(C)(5)(a)(ii), a third-degree felony. Count two was for assault
(on a police officer) in violation of R.C. 2903.13(A(C)(3), a fourth-degree felony.
{¶3} The second case (2011 CR 00702) stemmed from events occurring on June
17, 2011, which resulted in the grand jury charging Relator with two counts of aggravated
possession of drugs (count one – Endocet and count two – Oxycodone) in violation of
R.C. 2925.11(A)(C)(1)(b), third-degree felonies. Each count also contained a forfeiture
specification for $4,490.00 in U.S. currency.
{¶4} The parties reached a Crim.R. 11(F) plea agreement resolving both cases
at a plea and sentencing hearing conducted by the trial court on November 23, 2011. The
written plea agreements reflect that Relator acknowledged the maximum sentence for
each of the offenses with which he was charged: 3 years for failure to comply with an
order or signal of a police officer; 18 months for assault; and 3 years for the counts of
aggravated possession of drugs which merged for the purposes of sentencing but also
attached a statutory presumption that a prison term is necessary. Pursuant to the
agreement, Relator pleaded guilty as charged in both cases. In exchange, for case no.

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2011 CR 00666, the State agreed to recommend a one-year term of imprisonment for the
failure to comply with an order or signal of a police officer conviction, a one-year term of
imprisonment for the assault conviction to be served concurrently with each other and
with an unidentified federal court sentence. In case no. 2011 CR 00702, the State agreed
to recommend a three-year term of imprisonment for aggravated possession of drugs to
be served concurrently with the recommended sentence in case no. 2011 CR 00666 and
concurrently with the unidentified federal court sentence. Thus, as to the state
convictions, the trial court sentenced Relator to the recommended aggregate sentence of
three-years imprisonment. As indicated, the terms of the federal court sentence are never
identified in the plea agreements or judgment entries of sentence.
{¶5} Over five years later during which time Relator sought twice unsuccessfully
to obtain judicial release, he filed a motion to vacate plea, conviction and sentence as
void ab initio on November 29, 2016. He argued he did not enter his guilty pleas
knowingly and voluntarily because his appointed trial counsel did not provide him with a
copy of the discovery resulting in ineffective assistance of counsel. He contended that
manifest injustice resulted because his pleas were used in federal court to enhance his
federal sentence. Retained counsel for Relator filed a supplement to his motion on
December 21, 2016. He clarified that Relator was in federal custody at the time he
entered his pleas in state court. He too argued Relator’s appointed trial counsel was
ineffective for allowing Relator to enter the pleas because he should have known and
advised Relator that the pleas would result in his designation under federal sentencing
guidelines as an Armed Career Criminal, “dramatically” increasing his exposure to an
enhancement of his federal sentence.
{¶6} Thereafter, the trial court judge who had presided over both of Relator’s
cases retired and there was an election to fill his seat on the bench. The Mahoning
County Common Pleas Court, General Division, is comprised of five judges. Relator’s
cases were assigned to Judge Lou A. D’Apolito. Judge D’Apolito retired and Judge
Anthony Donofrio was elected to his seat on the bench.
{¶7} Next, we address two insubstantial procedural issues for the sake of clarity
and judicial uniformity. First, we note Relator’s petition is improperly captioned as “Lebron
Bunkley v. State of Ohio.” R.C. 2731.04, which specifically addresses the captioning of

Case No. 19 MA 0137
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an application for a writ of mandamus, states in relevant part: “Application for the writ of
mandamus must be by petition, in the name of the state on the relation of the person
applying, and verified by affidavit.” Therefore, Relator’s complaint should be recaptioned
“The State ex rel. Bunkley v. The Honorable Anthony Donofrio, Mahoning County Court
of Common Pleas, General Division” or, similarly, “The State ex rel. Bunkley v. Judge
Anthony Donofrio, Mahoning County Common Pleas Court, General Division.” State ex
rel. Clay v. Gee, 138 Ohio St.3d 151, 2014-Ohio-48, 4 N.E.3d 1026, ¶ 1, fn. 1 (re-
captioning procedendo action and noting “[t]hroughout this litigation, this case has been
incorrectly captioned State v. Clay.”). Which leads us to the second issue—the
substantive nature of the petition.
{¶8} Although mandamus is technically available as an original action to pursue
in cases of a court’s alleged undue delay in entering judgment, in recent years, the Ohio
Supreme Court’s has reiterated its position favoring procedendo as the more appropriate
original action, since “[a]n inferior court’s refusal or failure to timely dispose of a pending
action is the ill a writ of procedendo is designed to remedy.” State ex rel. Levin v. Sheffield
Lake, 70 Ohio St.3d 104, 110, 637 N.E.2d 319 (1994); State ex rel. Dehler v. Sutula, 74
Ohio St.3d 33, 35, 656 N.E.2d 332, (1995); State ex rel. Doe v. Gallia Cty. Common Pleas
Court, 153 Ohio St.3d 623, 2018-Ohio-2168, 109 N.E.3d 1222, ¶ 14, reconsideration
denied sub nom. Doe v. Gallia Common Pleas Court, 153 Ohio St.3d 1460, 2018-Ohio-
3257, 104 N.E.3d 791.
{¶9} The original jurisdiction of the Ohio Supreme Court and the Courts of
Appeals is nearly identical as forth in the Ohio Constitution. Each have original jurisdiction
over writs of quo warranto, mandamus, habeas corpus, prohibition, and procedendo. Ohio
Constitution, Article IV, Section 2(B)(1)(a)-(f) (Ohio Supreme Court); Ohio Constitution,
Article IV, Section 3(B)(1)(a)-(f) (Courts of Appeals). The same rules concerning the
constitutional original jurisdiction of the Ohio Supreme Court in these writs apply equally
to the Court of Appeals. See State ex rel. Pressley v. Indus. Commission, 11 Ohio St.2d
141, 162, 228 N.E.2d 631, 647 (1967). Moreover, because of the Ohio Constitution’s
coextensive grant of original jurisdiction over these writs, Courts of Appeals are vested
with same plenary authority over original actions instituted before it as the Ohio Supreme
Court has over original actions instituted before it. In examining Ohio Constitution, Article

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IV, Section 2, which in addition to setting forth the Ohio Supreme Court’s original
jurisdiction over the aforementioned writs, also defines its appellate jurisdiction, the Court
long ago succinctly delineated this concept of a court’s plenary authority over an original
action: “This provides for jurisdiction of two kinds, original and appellate. The appellate
is only ‘such as may be provided by law.’ But the original jurisdiction is plenary, it is all
the jurisdiction, as it existed at common law, as to the occasions of its exercise, though
not necessarily in its forms.” (Emphasis sic.) State ex rel. Grisell v. Marlow, 15 Ohio St.
114, 125 (1864).
{¶10} The Ohio Supreme Court has acknowledged and exercised this plenary
authority to convert an original action, although improperly styled, to a different (and the
appropriate) original action to which the substance of the pleadings align. State ex rel.
Doe v. Gallia Cty. Common Pleas Court, 153 Ohio St.3d 623, 2018-Ohio-2168, 109
N.E.3d 1222, reconsideration denied sub nom. Doe v. Gallia Common Pleas Court, 153
Ohio St.3d 1460, 2018-Ohio-3257, 104 N.E.3d 791 (converting a criminal defendant’s
petition for a writ of mandamus to compel the trial court to rule on his motion to seal his
conviction into a petition for a writ of procedendo); State ex rel. Eaton Corp. v. Lancaster,
40 Ohio St.3d 404, 410, 534 N.E.2d 46, 52 (1988), on reh’g, 44 Ohio St.3d 106, 541
N.E.2d 64 (1989) (converting workers compensation claimaints’ original action from
prohibition to mandamus where claimants had presented medical evidence uniformly
indicating their condition had become permanent yet the Industrial Commission continued
to issue only temporary total disability as a matter of policy).
{¶11} Therefore, this Court, on its own accord, converts Relator’s petition for a
writ of mandamus to what is substantively, and more appropriately entitled, a petition for
a writ of procedendo. Unlike mandamus, there is no comparable statutory requirement
for procedendo cases to be brought by petition, in the name of the state on the relation of
the person applying. However, the Ohio Supreme Court has held that a petition for a writ
of procedendo be by petition, in the name of the state on the relation of the person
applying. Clay, supra. Again, there are no statutory provisions governing procedendo.
Concerning procedure, the Ohio Rules of Civil Procedure are applicable in the absence
of a local rule of court. And the remainder, both procedurally and substantively, is left to
the courts to decide.

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{¶12} As an aside, it is worth mentioning that concerning the statutory requirement
for mandamus actions that they be captioned in the name of the state on the relation of
the person applying, the Ohio Supreme Court has held that the requirement is not
jurisdictional, observing “we recently held the requirements of that statute (R.C. 2731.04)
are not jurisdictional,” noting a number of cases that were not dismissed for the relator’s
failure to caption his or her complaint in the name of the state. Doe at ¶ 8, cting Salemi v.
Cleveland Metroparks, 145 Ohio St.3d 408, 2016-Ohio-1192, 49 N.E.3d 1296, ¶ 15.
{¶13} “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, 84 Ohio St.3d 530, 532, 705 N.E.2d 1227 (1999). “To be entitled to a
writ of procedendo, a relator must establish (1) a clear legal right to require the respondent
to proceed, (2) a clear legal duty on the part of the respondent to proceed, and (3) the
lack of an adequate remedy in the ordinary course of the law.” State ex rel. Williams v.
Croce, 153 Ohio St.3d 348, 2018-Ohio-2703, 106 N.E.3d 55 ¶ 6. “The writ of procedendo
is merely an order from a court of superior jurisdiction to one of inferior jurisdiction to
proceed to judgment. It does not in any case attempt to control the inferior court as to
what that judgment should be.” State ex rel. Davey v. Owen, 133 Ohio St. 96, 106, 12
N.E.2d 144 (1937).
{¶14} In this case, counsel for Respondent included in his combined answer and
motion Exhibit No. 1. Exhibit No. 1 is a copy of a Judgment Entry issued by Respondent
and filed with the clerk of courts on January 6, 2020. In the entry, Judge Donofrio, Judge
D’Apolito’s successor, stated Relator’s November 29, 2016 motion to vacate his plea had
just recently come to the court’s attention. The entry concludes stating Respondent had
considered Relator’s motion and expressly overruled it.
{¶15} Relator has not contested Respondent’s mootness argument. Moreover,
and more specifically, Relator has not submitted a response or brief in opposition to
Respondent’s motion to dismiss thereby admitting Respondent’s assertion concerning
the issuance of a judgment entry disposing of the pending motion in the underlying
criminal actions. Therefore, this original action is now moot. “A writ of procedendo will
not issue to compel the performance of a duty that has already been performed.” State
ex rel. Bortoli v. Dinkelacker, 105 Ohio St.3d 133, 2005-Ohio-779, 823 N.E.2d 448, ¶ 3.

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{¶16} Accordingly, the Court grants Respondent’s motion to dismiss and orders
this case dismissed.
{¶17} Costs taxed against Relator. Final order. Clerk to serve copies of this
decision and judgment entry pursuant to the civil rules.

JUDGE CAROL ANN ROBB

JUDGE CHERYL L. WAITE

JUDGE MARY JANE TRAPP
ELEVENTH DISTRICT COURT OF APPEALS
SITTING BY ASSIGNMENT

Case No. 19 MA 0137