IN THE SUPREME COURT OF OHIO

IN EX REL FRANK C. DAVIS CASE NO.2011CA 00231521 MARTIN GLEN TRIAL NO. 98 CR. 681

MIDLOTHIAN, VA.23112RELATOR WRIT OF MANDAMUS

VS.RONALD C. VINCENTCLERK OF CLARK COUNTY, OHIO COURT OF COMMON PLEASPO BOX 1008101 NORTH LIMESTONE STREETSPRINGFIELD, OHIO 45502

ANDERIN E. STANTON, MAGISTRATE101 NORTH LIMESTONE STREETSPRINGFIELD, OHIO 45502

ANu-

MICHAEL FAIN, SECOND DISTRICT COURT OF APPEALS101 NORTH LIMESTONESPRINGFIELD, OHIO 45502

ANDTHOMAS GRADY, SECOND DISTRICT COURT OF APPEALS101 NORTH LIMESTONE STREETSPRINGFIELD, OHIO 45502

ANDMARY DONOVAN, SECOND DISTRICT COURT OF APPEALS101 NORTH LIMESTONE STREETSPRINGFIELD, OHIO 45502

JEFFREY FROELICH, SECOND DISTRICT COURT OF APPEALS101 LIMESTONE STREETSPRINGFIELD, OHIO 45502

ANDMICHAEL T. HALL101 NORTH LIMESTONE STREETSPRINGFIELD, OHIO 45502

RESPONDENTS

VEDDEC 0 9 2011

^CER{4 F COURTI SUPRENIE Ct3UR`f OF OHIO

DEC 0 9 20 11

CLERK OF COURTSUPREME COURT OF OHIO

The Relator in Ex Rel Frank C. Davis sets forth in this Writ of Mandamus that

Ronald C. Vincent has as a public officer a clear legal duty pursuant to Ohio Appellate

Rules 11 and 11.2 to set forth a calendar by local rule for the filing of the record, brief,

and the setting of oral arguments and ultimately for determination of a judgment. The

Clark County, Ohio Court of Appeals, through Ronald C. Vincent and his designated

representative has failed or refused to place of record a scheduling

order. The reason asserted by Respondent is that he will not unseal records even though

Ohio Rules of Appellate Procedure 9 and 11 mandate that the clerk of court at the trial

level certify the original papers on appeal. In this instance, the person charged with that

clear legal duty is the duly elected Clerk of Court, Ronald C. Vincent. The Respondent,

has taken the untenable position that the sealed records according to the order of Judge

Rastatter can be unsealed solely for the purpose of the civil litigation. Based upon a

literal, yet erroneous construction of both the order, and , exhibits , certified copies of the

docket regarding the construction of appellate cases such as City of. Akron v. Frazier, (

2001 ) 142 Ohio App. 3d 718, 756 NE 2d 1258, in construing Ohio Revised Code

Section 2953.53, the Respondents have clearly violated the law.

The very issue of whether the Appellant sought and presented the right

documents to secure an order from Judge Rasttattar and whether the Appellant is the

party subject to the sealed documents necessitate that the Respondent Ronald C. Vincent,

comply with his legal mandate and duty to produce the record.

The Ohio Civil Rule of Procedure 53 governing Magistrates mandate that a

Magistrate's decision advised the persons who are subject to the proceedings that he or

she has fourteen days from the court order to file objections to the decision. The

Magistrate `s show cause order presented in lieu of such a decision contains no such

language. Pursuant to Ohio Civil Rules of Procedure 58, the trial court shall endorse the

entry before it is binding on the court and the parties. Here, Erin E. Scanlon signed the

show cause order, but the trial judge did not later sign an entry which adopts, or modifies

the Magistrates duties. Although the is no appellate Rule which outlines the scope of the

Magistrate's decision or order, Ohio Rules of Civil Procedure 9, specifically outlines the

scope of a entry's Magistrate's duties and does not allow for authorizing Magistrate

signed entries or orders without prior adoption, or affirmation of the trial judge. Hence,

according to Miller v. Miller, 2011 Ohio App. Lexis 2277 (May 26, 2011).and based

upon the foregoing reasons, the Relator prays that the Second District Court of Appeals

judges who have a clear legal duty to ensure that all the Ohio Rules of appellate

procedure, especially Ohio Appellate Rule 9, be enforced. Thus, the Relator asks that

the Ohio Supreme Court compel Ronald C. Vincent and the Second District Court of

Appeals to certify the record necessary for the prosecution of this appeal and to dismiss

the show cause order. Finally, the Relator has no adequate remedy at law.This court

should be mindful that with respect to this Relator under the underlying criminal case, the

trial

Judge has previously ignored the law and Second District Court of Appeals mandate as

evidenced by State ex rel Davis, Petitioner vs. Douglas M. Rastatter, 2006 Ohio 5305.

Wherefore, the Relator requests that this court issue a show cause order

mandating that the Respondents dismiss the show cause order and the Respondents

Ronald C. Vincent and the Second District Court of Appeals place of record before the

appellate court all pertinent documents required pursuant to Ohio Appellate Rule 9, and

Produce a scheduling order as required by Ohio Appellate Rule 11.1.

CERTIFICATE OF SERVICE

icia Diane Kitchens YounAttorney at Law, 0314291516 Dudley Walk, Apt A"

Cincinnati, Ohio 45214(513)4212832

I, hereby certify that a true and accurate cop Qlmmby Ordinary US Mail Postage prepaid this day o

IN THE OHIO SUPREME COURT

IN RE EX FRANK C. DAVIS

RELATOR

CASE NO.2°a District of Appeal Case No. 2011 CA 0023

-VS.- AFFIDAVIT IN SUPPORT OF WRIT OFMANDAMUS

RONALD C. VINCENT, CLERKOF COURTS FOR CLARK COUNTY, ET AL.

RESPONDENT

STATE OF OHIO ))SS:

COUNTY OF HAMILTON)

Now come the Relator, Frank C. Davis, and after having been duly sworn, states as

follows:

(1) I, through my authorized legal counsels, Patricia Diane Kitchens Young and William

D. Bell, Sr. Filed an appeal on April 14, 2011 with the Second District Court of Appeals, Case

No. 2011 CA 0023. See Relator's Exhibit A, which is incorporated herein and is a true and

accurate copy of the original criminal docket statement.

(2) Prior tb my having filed the above referenced appeal, I caused to be placed of record

an affidavit which requested that Judge Douglas Rastatter, Clark County, Ohio Court of

Common Pleas, unseal my records for Case No. 98 CR 681, Clark County, Ohio Court of

Common Pleas, which were previously expunged, for all purposes for use pursuant to Ohio

Revised Code Section 2953.33. See Relator's Exhibit D which is incorporated herein and which

is a true and accurate copy of the original affidavit filed.

-(3)_De-spite my request Judge Rastatter limited the unsealing of the records to Case No.

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IN THE COURT OF APPEALS OF OHIOSECOND APPELLATE DIVISION

CLARK COUNTY

STATE OF OHIO

Plaintiff-Appellee : Appellate Case No. 2011-CA-23

Trial Court Case No. 98-CR-681

FRA^NF: C. DAVIS

Defendant-Appellant

SHOW CAUSE ORDER(Failure to File Record)

October SO , 2011

The record on appeal has not been prepared and filed within the time allowed by App.

R. 10(A) or as extended by order of the court. Appellant shall, within fourteen (14) days of the

date of this show cause order, either cause the record to be prepared and filed, or show

cause, in writing, why this matter should not be dismissed for failure of appellant to timely

prepare and file the record.

!T':S SO ORDERED.

ERIN E. SCANLON, Magistrate

Copies provided by the court to:

Andrew R. Picek William Bell, Sr.

50 E. Columbia Street Patricia YoungP.O. Box 1608 830 N. Main Street

Springfield, OH 45501 Suite 604Cincinnati, OH 45202

THE COURT OF APPEALS OF OHIOSECOND APPE^LATI DISTRI T^..,,

qPR-13-2011 i0:54 CLfiRK C.O. CLERK OF CaJMo937 32B 2436 P.02

^O.^I^ tSnntmvzc ^lett,^ of ^tl^rk ^uutitg. (^4i^r

STATE

vs.

CASE NO: 98CR0681

Defendant, ENTRY

RASTATTER, JUDGE

Defendant's motion to unseal his case for the limited purpose to

should contact the Clerk of Courts for a time to unseal the file and

obtain said documents. When the defendant has obtained what he

nreeds from the file; the file is hereby ()RDERED RESEALED.

obtain documents for his civil suit is SUSTAINED. Defense counsel

Dougla , Rastatter, Judge

CER7'IEIEp COPY

Filed 3 '^5

cc:A. PieekW. Bell

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Feb -18 11 01:53p F Davis

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CASE N0.11-C'V 0052

p.1t"AUt ne/ 03

FRANK DAVJS1521 MarFitu Glen TerraceMjdlotbian, Virgixtia 23112 TUDG7E O'NEIi,

Plainti'ff vvXDAVI'fl SWORN APF'LI-

CATlON OF FRAWC DAVIS

CLAIt.K CO[RNTXCO1vIMISSLONF.^s ET AL. F[l^t.Q^DE4t."Z'O RELEASE

IiIS REGORDS cONTAI3IL33UNDER 98 CR 0681

STA"i'E OF NTRGINiA.

COUIdTX OF CHESTERFIELD )

)

SS:

L'ramk C. T]ati'is, h.avu'ig beeta duly sworn, deposes and says ths £ollowing :

1) Mp r<ame i s krank C. I]avis. and i arn o£ sound miald aad 1egaJ aSe. The stateznents

tlaadee herein are irue atld correct to the best of ury perscmaa knowledge.

2} 1fitad an app]icazion to have mY records, whicJa aaze coMaizied uzrder 98 CR, 0681, sea.led

purs=t to Olaio Revised Gode 2953. 52.of tb.e zecords and seek that those re.coxde upon zz7^}'

on who is snbject3) i am tb e pcrs

vrritten apPlication or affidavit set forth hezein be rnade avadlable to me actd rrEy attozneys,

\V iil.iam D. Sell> Sx. aud Pauioia Diane Kiteh.erAS Youtlg of 830 Me.iA. Street, Ci.zr.oinnata,

as the law authorizes uvder Oi^zo Revised GodeOhio 45292 for any p^ose I so ohase

Seetion 2953-53.

(^,- , L +' La ^ ^)

Feb 18 11 01:53p F Davis 8047395216 p.2

06J3H12009 04:10 5132413691 PAGE 03163

p,FkIANT SA.yE3H NA.UGH1'

Sworz^. to befoxe me and subscribed in My prese^ce #bis-_^t----day of February, 201I

PublicNotazyU `

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EXHIBIT C

LEXSEE 2006 OHIO 5305

STATE ex rel. FRANK DAVIS, Petitioner vs. JUDGE DOUGLAS M_

RASTATTER, Respondent

C.A. CASE NO. 06-CA-66

COURT OF APPEALS OF OHIO, SECOND APPELLATE DISTRICT, CLARK

COUNTY

2006 Ohio 5305; 2006 Ohio App_ LEXIS 5301

September 29, 2006, Rendered

PRIOR HISTORY: State v. Davis, 166

2006 Ohio 1592, 851Ohio App- 3d 468

proceedings on the charges against

Petitioner from which those,N-E.2d 515, 2006 Ohio App. LEXIS 1459

(Ohio Ct. App., Clark County, 2006)

convictions arose. State v. Daviis 166

Ohio App. 3d 468, 2006 Ohio 1592, 851

N_E.2d 515.

JODGES: [**1] THOMAS J. GRADY,

PRESIDING JUDGE, JAMES A. BROGAN,[*P3] "A court that reverses or

JUDGE, MIKE FAIN, JUDGE.affirms a£inal order, judgment,

decree of a lower court upon appeal

or

on

OPINION BY: THOMAS J. GRADY

OPINION

WRIT OF MANDAMUS

[*Pl] This matter is before the

court on a petition for Writ of

Mandamus filed by Petitioner, Frank

Davis, on. July 6, 2006, against

Respondent, Judge Douglas N.

Rastatter. Petitioner subsequently

filed a motlion for default judgment,

Judge Rastatter having failed to file

a responsive pleading after being

served by certified mail on July 11,

2006-

questions of law, shall not issue

execution, but shall send a special

mandate to the lower court for

execution or further proceedings.

[*P4] "The court to which such

nandate is sent shall proceed as if

the final order, judgment, or decree

had been rendered [**2] in it. On

motion and for good cause shown, it

may suspend an execution made

returnable before it, as if the

execution had been issued from its own

court. Such suspension shall extend

only to stay proceedings until the

matter can be further heard by the

court of appeals or the supreme

court." R.C. 2505.39_

[*P2] In an appeal filed by

Petitioner Davis, we reversed his

convictions for three drug offenses

and the sentences Respondent imposed

on them, and we remanded the case to

the trial court for further

[*P5] An order of remand is

directed to the trial court, and it is

the xesponsibility of the trial court

to see that the order is carried out.

Mid-Ohio Liqaid Fertilizers, Inc, v.

2006 Ohio 5305, *P5; 2006 Ohio App. LEXIS 5301, **2

Lowe (1984), 14 Ohio App.3d 36, 14

Ohio B. 40, 469 N.E.2d 1019. The

judgment of the court of appeals is

the law of the case binding the trial

court on remand. Hubbard ex rel.

Creed v. Sauline, 74 Ohio St.3d 402,

1996 Ohio 174, 659 N.E.2d 781. In the

absence of extraordinary

circumstances, the court to which a

case is remanded has no discretion to

disregard the order of the remand from

the court of appeals. Nolan v. Nolan

(1984), 11 Ohio St.3d 1, 11 Ohio B. 1,

462 N.E.2d 410.

[*P6] Respondent is the judge of

the Court of Common Pleas of Clark

County assigned to preside in the

State's case against Petitioner to

which our remand applies. On July 26,

2006, disregarding our mandate,

Respondent journalized [**3] an order

requiring Petitioner to continue to

serve two of the three sentences on

convictions we reversed. That was not

Page 2

only contrary to the law of the case

as we decided it; it was also a

failure to exercise the discretion we

had ordered Respondent to exercise.

[*P7] Petitioner's motion for

default judgment is Granted.

Respondent is ordered to assign the

case in which the indictment charging

Petitioner with three drug offenses

was filed for trial on the court's

docket and to order Petitioner

released from imprisonment to stand

trial on those charges, forthwith, and

to proceed to trial on any of those

charges not dismissed by the State.

So Ordered.

THOMAS J. GRADY, PRESIDING JUDGE

JAMES A. BROGAN, JUDGE

MIKE FAIN, JUDGE