State ex rel. White v. Aveni

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. White v. Aveni, Slip Opinion No. 2024-Ohio-1614.]

NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.

SLIP OPINION NO. 2024-OHIO-1614
THE STATE EX REL . WHITE, APPELLANT , v. AVENI, JUDGE, APPELLEE .
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. White v. Aveni, Slip Opinion No.
2024-Ohio-1614.]
Mandamus—Procedendo—Mootness—Judicial notice—Vexatious litigators—A
writ of mandamus can be used to compel a court to issue a decision, but a
writ of procedendo is the more appropriate remedy because an inferior
court’s failure to timely dispose of a pending action is the ill a writ of
procedendo is designed to remedy—The record does not support a
conclusion that trial court ruled on appellant’s hanging-charge motion and
therefore mooted his claim for extraordinary relief regarding that motion—
Court of appeals erred in determining that trial court’s docket entry itself
disposed of hanging-charge motion—Judicial-notice requests did not
involve facts generally known or capable of accurate determination—
Request to declare appellant a vexatious litigator denied based on lack of
precedent in which this court declared a party a vexatious litigator under
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S.Ct.Prac.R. 4.03(B) when party had prevailed—Court of appeals’
judgment affirmed in part and reversed in part and cause remanded.
(No. 2023-0714—Submitted March 26, 2024—Decided April 30, 2024.)
APPEAL from the Court of Appeals for Franklin County,
No. 21AP-258, 2023-Ohio-1549.
__________________
Per Curiam.
{¶ 1} Appellant, Marcus D. White, appeals the Tenth District Court of
Appeals’ judgment dismissing his complaint for a writ of mandamus or procedendo
against appellee, Franklin County Common Pleas Court Judge Carl A. Aveni II.
Judge Aveni filed a combined merit brief and motion asking this court to declare
White a vexatious litigator under S.Ct.Prac.R. 4.03(B). White responded with a
motion to strike Judge Aveni’s combined brief and motion. White’s motion to
strike is supported by a document titled “Judicial Notice.” He has filed two other
documents titled “Judicial Notice,” seeking relief or providing notice to this court
regarding limitations on his access to legal mail and Judge Aveni’s alleged failure
to properly serve him with documents filed in this court.
{¶ 2} We affirm in part and reverse in part the Tenth District’s judgment
and remand the matter to the appellate court, deny White’s motion to strike and the
relief he seeks in his judicial-notice requests, and deny Judge Aveni’s motion to
declare White a vexatious litigator.
I. FACTS AND PROCEDURAL HISTORY
{¶ 3} According to the Tenth District, in 2003, White was charged with
aggravated murder for causing the death of Debra Green and attempted murder for
shooting Tamica Spraggins. State v. White, 10th Dist. Franklin No. 05AP-1178,
2006-Ohio-4226, ¶ 5 (“White I”). A jury found White not guilty of those charges
but guilty of the lesser included offenses of felony murder (for Green’s death) and
felonious assault (for shooting Spraggins). Id.; State v. White, 10th Dist. Franklin

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No. 20AP-287, 2021-Ohio-588, ¶ 3-4 (noting that the trial court had issued a nunc
pro tunc sentencing entry specifying that White was convicted of felony murder).
The jury found White guilty of a firearm specification as to each offense. White I
at ¶ 5. The trial court sentenced White to an aggregate prison term of 25 years to
life. Id. The Tenth District affirmed White’s convictions but remanded the case to
the trial court for resentencing under this court’s decision in State v. Foster, 109
Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. White I at ¶ 33-35. In a later appeal
following his resentencing, the Tenth District affirmed White’s sentences. State v.
White, 10th Dist. Franklin No. 07AP-743, 2008-Ohio-701, ¶ 2.
{¶ 4} Years later, White filed in the Tenth District an unsuccessful original
action to compel the trial court to issue a new sentencing entry identifying the
felony underlying his felony-murder conviction. See State ex rel. White v. Woods,
10th Dist. Franklin No. 17AP-620, 2018-Ohio-2954, ¶ 1, 5, 13. White later filed
in the Tenth District another unsuccessful original action to compel the trial court
to issue a sentencing entry disposing of a purported charge for felonious assault of
Green, which, White says, was the felony underlying his felony-murder conviction.
State ex rel. White v. Aveni, 10th Dist. Franklin No. 21AP-103, 2021-Ohio-3159,
¶ 1, 5, 7. White appealed both of those judgments to this court, and we affirmed.
See State ex rel. White v. Woods, 156 Ohio St.3d 562, 2019-Ohio-1893, 130 N.E.3d
271, ¶ 8-9; State ex rel. White v. Aveni, 168 Ohio St.3d 540, 2022-Ohio-1755, 200
N.E.3d 211, ¶ 14-16.
{¶ 5} This appeal involves another original action, filed by White in the
Tenth District in May 2021, seeking a writ of mandamus or procedendo compelling
the trial court to rule on his postconviction petition and a motion he filed in the trial
court in the criminal case. The postconviction petition was filed December 23,
2020, and asserted an ineffective-assistance-of-counsel claim. The motion was

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filed February 24, 2021, and sought White’s sentencing for what he maintains is a
“hanging charge” for felonious assault of Green.1
{¶ 6} Judge Aveni responded to White’s complaint with a Civ.R. 12(B)(6)
motion to dismiss, arguing that he had “not refused to enter a judgment or * * *
unnecessarily delayed in proceeding.” Judge Aveni’s motion noted that he had
afforded the state 30 days to respond to White’s postconviction petition and
hanging-charge motion. According to the Tenth District, on July 14, 2021, the trial
court issued a decision and entry granting the state’s motion to dismiss the
December 23 postconviction petition. However, the trial court did not issue a
separate entry addressing the February 24 hanging-charge motion.
{¶ 7} White’s complaint was referred to a Tenth District magistrate, who
recommended granting Judge Aveni’s motion to dismiss and dismissing White’s
complaint as moot. 2023-Ohio-1549, ¶ 26. The magistrate took judicial notice of
the trial court’s online docket, which stated that the February 24 hanging-charge
motion was “ ‘tied off’ ” and “released to clear the docket” when Judge Aveni
issued his decision on the December 23 postconviction petition. Id. at ¶ 17. A
majority of the appellate-court panel adopted the magistrate’s decision and found
White’s writ claims moot. Id. at ¶ 4. Judge Frederick D. Nelson, a retired judge
sitting by assignment, concurred in the appellate court’s judgment dismissing the
complaint and finding that the trial court had disposed of the December 23
postconviction petition, but disagreed with the appellate court’s conclusion based
on the docket entry that the trial court had denied White’s February 24 motion. Id.
at ¶ 5 (Nelson, J., concurring in part and concurring in judgment).

1. White’s “hanging charge” argument is based on the erroneous idea that for him to be convicted
of the felony murder of Green based on felonious assault, he had to have been charged with felonious
assault of Green. Based on that erroneous conclusion, White incorrectly asserts that there is a
felonious-assault charge against him still pending. Compare State v. Crago, 10th Dist. Franklin No.
18AP-857, 2020-Ohio-887, ¶ 12 (referring to an aggravated-murder charge as “hanging” when the
jury had failed to reach a decision on that charge but the charge was never dismissed).

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II. ANALYSIS
A. White’s motion to strike and judicial-notice requests
{¶ 8} White has moved to strike Judge Aveni’s combined merit brief and
motion to declare him a vexatious litigator. He has also filed three requests titled
“Judicial Notice.” The first judicial-notice request serves as a memorandum in
support of White’s motion to strike. The second and third judicial-notice requests
concern how the Ohio Department of Rehabilitation and Correction’s (“DRC”)
procedures for processing inmate legal mail have affected White’s prosecution of
this appeal and detail Judge Aveni’s purported failure to properly serve White with
documents that the judge has filed in this court.
{¶ 9} “A judicially noticed fact must be one not subject to reasonable
dispute in that it is either (1) generally known within the territorial jurisdiction of
the trial court or (2) capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.” Evid.R. 201(B). The
purported facts that White asks this court to judicially notice come from unsworn
statements in and attached to the judicial-notice requests and are based on his
experiences in prison or communications he or his wife allegedly had with the
office of the clerk of this court. Although they are titled “Judicial Notice,” the
documents are more akin to motions seeking relief from this court.
{¶ 10} In his motion to strike Judge Aveni’s combined merit brief and
motion and in his first judicial-notice request, White argues that the combined filing
was prejudicial to him. Specifically, White asserts that he attempted to file a
combined reply brief and response to Judge Aveni’s motion but that filing was
rejected by the clerk’s office because, although his reply brief was timely, the ten-
day window to respond to Judge Aveni’s motion had passed. White asks this court
for several, alternative forms of relief, including striking Judge Aveni’s combined
merit brief and motion.

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{¶ 11} White’s motion to strike and first judicial-notice request do not show
that he was prejudiced by Judge Aveni’s filing the merit brief and motion to declare
White a vexatious litigator as one document. Although White faults Judge Aveni
for filing his merit brief and motion together, he does not explain why he felt
compelled to respond to both simultaneously, ignoring that reply briefs and motion
responses are different filings with different deadlines. Recognizing and meeting
this court’s deadlines was White’s responsibility, and he was responsible for any
missed deadlines. See State ex rel. Fuller v. Mengel, 100 Ohio St.3d 352, 2003-
Ohio-6448, 800 N.E.2d 25, ¶ 10. Further, the first judicial-notice request does not
involve facts that are generally known or that are capable of accurate determination.
See Evid.R. 201(B). We deny White’s motion to strike and the relief requested in
his first judicial-notice request.
{¶ 12} We deny White’s other two requests for judicial notice. The second
judicial-notice request details changes to DRC’s procedures for processing inmate
legal mail, asserting that the process frustrates inmates’ ability to comply with
courts’ filing deadlines. White’s third judicial-notice request states that he was not
served with Judge Aveni’s response to his second judicial-notice request until more
than 30 days after the response was filed, because it was not properly addressed to
White. The second and third requests ask this court to order the clerk of this court
to coordinate mail delivery with White’s institution and to order DRC to
discontinue the complained-of inmate-legal-mail procedure because it violates the
Ohio and United States Constitutions.
{¶ 13} The second and third judicial-notice requests suffer from the same
failure as the first request; they do not contain facts that are generally known or that
are capable of accurate determination. See Evid.R. 201(B). This court has rejected
similar requests that sought to “inform” us of DRC’s changes to its legal-mail
procedures and the effects those changes have had on inmates’ litigation. See State
ex rel. Griffin v. Sehlmeyer, 167 Ohio St.3d 566, 2022-Ohio-2189, 195 N.E.3d 130,

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¶ 8. This court denied the requests in Griffin because they did not “ask for specific
relief with respect to the substantive issues before [the court].” That logic applies
to the second and third judicial-notice requests in this case, and we deny those
requests.
B. The Tenth District’s dismissal of White’s mandamus and procedendo claims
{¶ 14} This court reviews the Tenth District’s judgment dismissing White’s
complaint de novo. State ex rel. Brown v. Nusbaum, 152 Ohio St.3d 284, 2017-
Ohio-9141, 95 N.E.3d 365, ¶ 10. “Dismissal of a complaint for failure to state a
claim upon which relief can be granted is appropriate if, after all factual allegations
of the complaint are presumed true and all reasonable inferences are made in [the]
relator’s favor, it appears beyond doubt that [the] relator can prove no set of facts
warranting relief.” Clark v. Connor, 82 Ohio St.3d 309, 311, 695 N.E.2d 751
(1998). In considering a motion to dismiss, a court generally may not consider
evidence outside the complaint. Volbers-Klarich v. Middletown Mgt., Inc., 125
Ohio St.3d 494, 2010-Ohio-2057, 929 N.E.2d 434, ¶ 11. An exception to that rule
exists, however, when an event causes a case to become moot. State ex rel. Ames
v. Summit Cty. Court of Common Pleas, 159 Ohio St.3d 47, 2020-Ohio-354, 146
N.E.3d 573, ¶ 5.
{¶ 15} Although White’s complaint requested a writ of mandamus or
procedendo, the nature of his claims makes procedendo the more appropriate legal
vehicle. This court has noted that mandamus can be used to compel a court to issue
a decision but that procedendo is the more appropriate remedy to obtain that result
because “ ‘ “[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.” ’ ” (Brackets added
in Dehler.) State ex rel. Doe v. Gallia Cty. Common Pleas Court, 153 Ohio St.3d
623, 2018-Ohio-2168, 109 N.E.3d 1222, ¶ 14, quoting State ex rel. Dehler v.
Sutula, 74 Ohio St.3d 33, 35, 656 N.E.2d 332 (1995), quoting State ex rel. Levin v.
Sheffield Lake, 70 Ohio St.3d 104, 110, 637 N.E.2d 319 (1994).

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{¶ 16} A writ of procedendo will issue when a court has refused to enter
judgment or has unnecessarily delayed proceeding to judgment. State ex rel.
Culgan v. Collier, 35 Ohio St.3d 436, 2013-Ohio-1762, 988 N.E.2d 564, ¶ 7. To
state a claim in procedendo, White must allege facts showing that (1) he has a clear
legal right to require Judge Aveni to proceed, (2) Judge Aveni has a clear legal duty
to proceed, and (3) White lacks an adequate remedy in the ordinary course of the
law. See State ex rel. Weiss v. Hoover, 84 Ohio St.3d 530, 531-532, 705 N.E.2d
1227 (1999). Mandamus and procedendo claims become moot when a respondent
carries out the requested duty. State ex rel. Cox v. Youngstown Civ. Serv. Comm.,
165 Ohio St.3d 240, 2021-Ohio-2799, 177 N.E.3d 267, ¶ 22 (mandamus); State ex
rel. Roberts v. Hatheway, 166 Ohio St.3d 531, 2021-Ohio-4097, 188 N.E.3d 150,
¶ 5 (procedendo).
C. White’s claims were not moot
{¶ 17} The record in this case does not support the conclusion that Judge
Aveni ruled on White’s February 24, 2021 hanging-charge motion and therefore
mooted White’s claim for extraordinary relief regarding that motion. The Tenth
District found that Judge Aveni’s July 14, 2021 decision and entry disposed of the
December 23, 2020 postconviction petition. 2023-Ohio-1549 at ¶ 4, 25. White
does not dispute this. However, he argues that the July 14 decision and entry did
not address or dispose of his February 24 motion and that therefore the motion
remains pending.
{¶ 18} Again, the Tenth District determined that Judge Aveni’s July 14
decision and entry disposed of White’s December 23 postconviction petition. Id.
at ¶ 25 (“on July 14, 2021, respondent ruled on relator’s December 23, 2020, post-
conviction petition, dismissing it pursuant to the State of Ohio’s motion to dismiss.
Thus, [Judge Aveni] has now performed one of the acts that relator sought to
compel” [emphasis added]). The appellate court relied on the trial court’s docket
entry, which indicated that the ruling on the December 23 postconviction petition

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had “ ‘tied off’ ” the February 24 hanging-charge motion. Id. at ¶ 17, 25. The
appellate court found that the July 14 decision and entry had disposed of the
February 24 motion, but the court noted at the same time that the July 14 decision
and entry had addressed only the December 23 postconviction petition.
{¶ 19} The Tenth District’s decision overlooked the important distinction
between a journal entry and a docket entry. “Journalization is documented by the
trial-court judge’s signature and the stamp of the clerk of courts. Thus, journal
entries signed by the trial-court judge and stamped by the clerk of courts are what
control, not the references to them contained on the court’s docket.” (Internal
citation omitted.) McDougald v. Kuhn, 162 Ohio St.3d 619, 2020-Ohio-4924, 166
N.E.3d 1163, ¶ 16, citing State ex rel. Norris v. Wainwright, 158 Ohio St.3d 20,
2019-Ohio-4138, 139 N.E.3d 867, ¶ 19. “[W]hen no entry has been journalized,
there is nothing that can be appealed and there is no adequate remedy at law that
would preclude an extraordinary writ.” State ex rel. Henley v. Langer, 156 Ohio
St.3d 149, 2018-Ohio-5204, 123 N.E.3d 1016, ¶ 21 (Kennedy, J., concurring in
judgment only), citing State ex rel. Grove v. Nadel, 81 Ohio St.3d 325, 326-327,
691 N.E.2d 275 (1998), and Cleveland v. Trzebuckowski, 85 Ohio St.3d 524, 527,
709 N.E.2d 1148 (1999).
{¶ 20} Although the record in this case reflects that Judge Aveni ruled on
the December 23 postconviction petition in his July 14 decision and entry, there is
no such entry addressing the February 24 hanging-charge motion. The docket
entry, which the Tenth District found had “tied off” the February 24 motion, 2023-
Ohio-1549 at ¶ 17, 25, was not a journal entry bearing the judge’s signature or the
stamp of the clerk of courts. The docket entry was not sufficient to constitute a
decision by Judge Aveni on the February 24 motion.
{¶ 21} This court has reversed a court of appeals’ judgment dismissing a
procedendo claim and remanded under similar circumstances. In State ex rel.
Bunting v. Haas, 102 Ohio St.3d 161, 2004-Ohio-2055, 807 N.E.2d 359, Bunting

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had filed two documents styled as petitions for postconviction relief and a motion
for appointment of an expert regarding the postconviction-relief claims. Id. at
¶ 2-3. The trial court ruled on the first petition for postconviction relief and the
motion for appointment but did not address the second petition for postconviction
relief. Id. at ¶ 2-4. In response to Bunting’s procedendo claim concerning the
second petition, the trial court conceded that it had not ruled on the second petition,
but the appellate court dismissed Bunting’s procedendo claim. Id. at ¶ 4. This court
reversed the appellate court’s dismissal of Bunting’s claim, finding that “his
procedendo claim may have merit” and noting that “[the] trial court judge ha[d] not
yet ruled on his petition” and “the record [did not] reflect reasons for the delay.”
Id. at ¶ 9, citing Crim.R. 35(C).
{¶ 22} Judge Aveni’s merit brief presents alternative arguments to justify
affirming the Tenth District’s judgment dismissing White’s complaint, including
that White’s February 24 hanging-charge motion was barred by res judicata and
that he had an adequate remedy in the ordinary course of the law. Those arguments
are not properly before this court, because they were not raised before the appellate
court. “A party cannot assert new arguments for the first time on appeal.” Fields
v. Zanesville Police Dept., 5th Dist. Muskingum No. CT2021-0032, 2021-Ohio-
3896, ¶ 31, citing Kennedy v. Green, 5th Dist. Muskingum No. CT2018-0033,
2019-Ohio-854, ¶ 35, and Stores Realty Co. v. Cleveland, 41 Ohio St.2d 41, 43,
322 N.E.2d 629 (1975). Judge Aveni’s motion to dismiss argued only that he had
“not refused to enter a judgment or * * * unnecessarily delayed in proceeding to
judgment.” Additionally, the appellate court dismissed White’s complaint based
on Judge Aveni’s Civ.R. 12(B)(6) motion. Res judicata is an affirmative defense
that is not included in the defenses that may be raised under Civ.R. 12(B), and
generally, a court may not rely on evidence or allegations outside the complaint in
deciding a Civ.R. 12(B)(6) motion to dismiss. Jefferson v. Bunting, 140 Ohio St.3d
62, 2014-Ohio-3074, 14 N.E.3d 1036, ¶ 10-11.

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{¶ 23} In sum, the Tenth District correctly found that Judge Aveni had ruled
on the December 23, 2020 postconviction petition and thus mooted White’s claim
concerning the petition. However, the appellate court’s determination that the trial
court’s docket entry itself disposed of the February 24 hanging-charge motion was
erroneous.
D. Vexatious-litigator motion
{¶ 24} Judge Aveni asks this court to declare White a vexatious litigator.
S.Ct.Prac.R. 4.03(B) allows this court to declare a party a vexatious litigator if the
party “habitually, persistently, and without reasonable cause engages in frivolous
conduct under [S.Ct.Prac.R. 4.03(A)].” S.Ct.Prac.R. 4.03(A) defines an action as
frivolous “if it is not reasonably well-grounded in fact or warranted by existing law
or a good-faith argument for the extension, modification, or reversal of existing
law.” In determining whether a litigant is vexatious under the rule, this court
considers not only the number of cases brought by the litigant but whether the
litigant has presented unmeritorious, repetitive arguments on the same issue. See
State ex rel. Hill v. Navarre, 161 Ohio St.3d 188, 2020-Ohio-4274, 161 N.E.3d 627,
¶ 14. White has filed 19 other cases in this court since 2006 (13 discretionary
appeals, 4 direct appeals, and 2 original actions). Judge Aveni cites nearly all of
them in his motion to declare White a vexatious litigator, though he does not argue
that all were frivolous.
{¶ 25} Judge Aveni’s motion cites Hill, in which this court declared a
litigant vexatious under S.Ct.Prac.R. 4.03 in similar circumstances. In Hill, this
court noted that Hill had previously filed ten original actions and two jurisdictional
appeals in this court, most of which concerned his criminal convictions and sought
to either compel a new sentencing hearing or vacate his guilty pleas. Hill at ¶ 13.
We found that “Hill’s raising of repetitive and unmeritorious arguments that this
court has already rejected—and doing so in duplicative extraordinary-writ
proceedings—[was] frivolous conduct under S.Ct.Prac.R. 4.03(A) and (B).” Id. at

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¶ 16, citing State ex rel. Johnson v. Bur. of Sentence Computation, 159 Ohio St.3d
552, 2020-Ohio-999, 152 N.E.3d 251, ¶ 20.
{¶ 26} White’s filing history in this court is similar to that at issue in Hill.
All of White’s filings in this court have involved his criminal convictions. Most of
his filings have involved challenges to denials of his postconviction requests.
Starting in October 2017, White’s jurisdictional appeals have argued that he was
not properly sentenced and that to be convicted of felony murder, the underlying
felony charge had to pertain to the victim of the murder. See, e.g., Supreme Court
case Nos. 2017-1402, 2017-1663, 2018-0790, 2019-0816, 2021-0648, 2022-0286,
and 2023-0526. White’s claims have been determined to be untimely,
unmeritorious, or barred by res judicata. See, e.g., Supreme Court case Nos. 2013-
1362, 2017-0290, 2017-1402, 2017-1663, 2018-0790, 2019-0816, 2021-0648,
2022-0286, 2023-0526, and 2023-1189.
{¶ 27} White has habitually, persistently, and without reasonable cause
pursued claims and appeals in this court that were not reasonably well-grounded in
fact or warranted by existing law or a good-faith argument for the extension,
modification, or reversal of existing law. See S.Ct.Prac.R. 4.03(A) and (B).
Although one aspect of White’s appeal in this case has merit, that does not change
the fact that he has a well-established habit of filing appeals and other actions in
this court that are frivolous and repetitive.
{¶ 28} However, this court has not previously ruled in favor of a party and
simultaneously declared that party to be a vexatious litigator under
S.Ct.Prac.R. 4.03(B). Based on a lack of precedent in which this court declared a
party a vexatious litigator under S.Ct.Prac.R. 4.03(B) in a case in which the party
prevailed on one of his or her claims, we deny Judge Aveni’s motion to declare
White a vexatious litigator in this case.

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III. CONCLUSION
{¶ 29} For the foregoing reasons, we affirm the Tenth District Court of
Appeals’ judgment that White’s claim as to his December 23, 2020 postconviction
petition was moot and reverse its judgment that White’s claim as to his February
24, 2021 hanging-charge motion was moot and remand the cause to the appellate
court for consideration of that claim. We deny White’s motion to strike and the
relief he seeks in his judicial-notice requests. We deny Judge Aveni’s motion to
declare White a vexatious litigator.
Judgment affirmed in part
and reversed in part
and cause remanded.
KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, BRUNNER,
and DETERS, JJ., concur.
_________________
Marcus D. White, pro se.
Jeanine Hummer and Nickole K. Iula, Franklin County Assistant
Prosecuting Attorneys, for appellee.
_________________

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