State ex rel. Cotton v. Ghee - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

	ROMINGER LEGAL
		Ohio Court Cases and Opinions - Ohio Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -RESEARCH

This court case was taken from the web sites of the Ohio Courts. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

THE STATE EX REL. COTTON, APPELLANT, v. GHEE, CHAIR, OHIO ADULT PAROLE
AUTHORITY, APPELLEE.
[Cite as State ex rel. Cotton v. Ghee (1998), ___ Ohio St.3d ___.]
Mandamus to compel Chair of Ohio Adult Parole Authority to provide relator
with a second parole hearing at which she would consider whether relator
should be paroled due to a vacated conviction -- Writ denied, when.
(No. 98-1165 -- Submitted September 28, 1998 -- Decided December 2, 1998.)
APPEAL from the Court of Appeals for Franklin County, No. 97APD06-798.

Appellant, Milton Cotton, was convicted of several offenses, including
aggravated robbery, kidnapping, felonious assault, receiving stolen property, and
grand theft, and was sentenced to prison. In August 1987, Cotton was released
from prison on parole. One month later, he was arrested on a charge of receiving
stolen property. In 1988, Cotton was convicted of receiving stolen property and
sentenced to a prison term of two to ten years. The Adult Parole Authority
("APA") revoked Cotton's parole based on his new conviction.

In April 1990, the court of appeals reversed Cotton's 1988 conviction of
receiving stolen property and discharged him from that conviction and sentence.
State v. Cotton (Apr. 12, 1990), Cuyahoga App. No. 56775, unreported, 1990 WL
43658. In June 1990, the APA held a hearing to consider the court of appeals'
vacation of Cotton's conviction of receiving stolen property. The APA decided to
restore Cotton's parole effective July 13. Following his reparole, Cotton was
convicted and sentenced for several new crimes, including receiving stolen
property, possession of criminal tools, drug trafficking, and grand theft.

In 1997, Cotton filed a complaint in the court of appeals for a writ of
mandamus to compel appellee, APA Chair Margarette T. Ghee, to provide him
with a parole revocation hearing based on the 1990 reversal and vacation of his

conviction of receiving stolen property and to journalize the court of appeals'
mandate in the vacated case. The court of appeals denied the writ. Cotton then
filed a Civ.R. 60(B) motion for relief from judgment, but before the court of
appeals could rule on it, he appealed the judgment denying the writ.

This cause is now before this court upon an appeal as of right.
__________________

Milton Cotton, pro se.

Betty D. Montgomery, Attorney General, and Brian M. Zets, Assistant
Attorney General, for appellee.
__________________

Per Curiam. Cotton asserts in his various propositions of law that the court
of appeals erred in denying the writ and in refusing to grant his Civ.R. 60(B)
motion for relief from judgment. For the following reasons, however, we reject
Cotton's contentions and affirm the judgment of the court of appeals.

First, Cotton is not entitled to a second parole hearing for appellee to
consider whether he should be paroled due to the vacated conviction. The APA
already held a hearing in 1990 at which it considered the court of appeals'
vacation of his 1988 conviction and ultimately decided to reparole him.
Mandamus will not issue to compel a vain act. State ex rel. Thomas v. Ghee
(1998), 81 Ohio St.3d 191, 192, 690 N.E.2d 6, 7.

Second, Cotton is not entitled to have appellee journalize the court of
appeals' mandate in the vacated case. Appellee has no duty to journalize court
entries, and the appellee's records establish that the APA considered the mandate
in its 1990 decision to reparole Cotton. In addition, the court of appeals has
already journalized its mandate. See State ex rel. Cotton v. Griffin (1998), 81
Ohio St.3d 105, 106, 689 N.E.2d 560, 561.

2

Finally, Cotton cannot establish that the court of appeals erred in not
granting his Civ.R. 60(B) motion for relief from judgment. Nothing in the record
demonstrates that the court of appeals ruled on this motion. Appellee also did not
attach a copy of this entry to his brief or supplement. We cannot add matter to the
record before us and decide this appeal based upon that new matter. Barnett v.
Ohio Adult Parole Auth. (1998), 81 Ohio St.3d 385, 387, 692 N.E.2d 135, 137.
Moreover, the court of appeals lacked jurisdiction to rule on this motion once
Cotton filed this appeal. Daloia v. Franciscan Health Sys. of Cent. Ohio, Inc.
(1997), 79 Ohio St.3d 98, 101, 679 N.E.2d 1084, 1088, fn. 5, citing Howard v.
Catholic Social Serv. of Cuyahoga Cty., Inc. (1994), 70 Ohio St.3d 141, 146, 637
N.E.2d 890, 895. Cotton's claim of error relating to his Civ.R. 60(B) motion is
therefore premature.

Based on the foregoing, the court of appeals properly denied the writ.
Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.

3