State ex rel. Newsome v. Hack (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Newsome v. Hack, Slip Opinion No. 2020-Ohio-4812.]




                                           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. 2020-OHIO-4812
                    THE STATE EX REL. NEWSOME v. HACK ET AL.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as State ex rel. Newsome v. Hack, Slip Opinion No.
                                     2020-Ohio-4812.]
Mandamus—Sentencing transcript—Impossible acts—Prior judgment cannot be
        executed—Judgment vacated and writ denied.
    (No. 2019-0457—Submitted August 4, 2020—Decided October 13, 2020.)
                                       IN MANDAMUS.
                                     _______________
        Per Curiam.
        {¶ 1} For the following reasons, we vacate our February 5, 2020 judgment
granting relator, Jeffrey Newsome, a writ of mandamus, and we enter judgment
denying the writ.
                                       I. Background
        {¶ 2} On March 27, 2019, Newsome filed an original action in this court,
seeking a writ of mandamus to compel a former Marion County court reporter,
                             SUPREME COURT OF OHIO




respondent Karla Hack, to inform him of the cost to obtain a copy of his 2009
sentencing transcript. On February 5, 2020, we granted the writ and ordered Hack
and respondents Marion County Court Reporter’s Office and the current court
reporter to tell Newsome the transcript fee. State ex rel. Newsome v. Hack, 159
Ohio St.3d 44, 2020-Ohio-336, 146 N.E.3d 571, ¶ 8-10.
       {¶ 3} On April 17, 2020, Newsome filed a notice informing us that
respondents had not complied with the writ of mandamus. We ordered Hack to
demonstrate a verifiable factual basis as to whether our judgment had been or was
able to be executed. 159 Ohio St.3d 1412, 2020-Ohio-3275, 147 N.E.3d 649.
                               II. Hack’s response
       {¶ 4} On June 30, 2020, Hack filed her response, to which she attached her
own affidavit and the affidavit of Greg Boyd, bailiff to Judge Jason Warner of the
Marion County Court of Common Pleas.
       {¶ 5} Hack avers that upon her 2012 retirement as the Marion County court
reporter, “all remaining notes retained in my service were turned over to the custody
of the Common Pleas Court for destruction. Any notes from [State of Ohio v.
Jeffrey Newsome] Case No. 08-CR-438 (if in fact there were notes) have been
destroyed.” Hack also states that she has “advised Mr. Newsome that [she] do[es]
not have records relating to this case and instructed him that he would have to
contact the Court of Common Pleas of Marion County and that if a recording of the
proceeding was provided to [her, she] would transcribe the sentencing hearing.”
       {¶ 6} Boyd avers that as bailiff, he has “access to the electronic files which
contain recordings of official court proceedings.” He further avers that the county
prosecutor asked him to produce the recording of Newsome’s 2009 sentencing
hearing. However, Boyd “concluded that no such recording existed,” and he
“advised the Prosecuting Attorney that the Judgment of the [Ohio] Supreme Court
cannot be executed.” Boyd also states that he spoke to the former bailiff, Kevin




                                         2
                                January Term, 2020




Williams, who allegedly told Boyd that in late 2017, he had been asked by
Newsome’s family to provide the same recording but could not locate it.
                                   III. Analysis
        {¶ 7} In this case, the only evidence indicating that a transcript of
Newsome’s sentencing hearing exists is the trial court’s statement to that effect in
a December 2017 entry. It now appears that that statement was not correct.
        {¶ 8} Moreover, it seems that despite the fact that according to Hack,
“[e]ach courtroom had a recording device to record the * * * proceedings,” any
recordings of Newsome’s 2009 sentencing hearing no longer exist. Hack also
indicates that a transcript of the sentencing hearing cannot be recreated because she
no longer has any notes that she may have taken in Newsome’s case. Had this
evidence been before us at the time of our prior judgment, we would have denied
the writ because mandamus will not lie “to compel what would be tantamount to
an impossible act,” State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite
Information Network, Inc. v. Cincinnati Bd. of Edn., 99 Ohio St.3d 6, 2003-Ohio-
2260, 788 N.E.2d 629, ¶ 15. Because a transcript cannot be located and neither
Hack nor the Marion County Court of Common Pleas have the requested recording
or any notes from the 2009 sentencing hearing, our February 5, 2020 judgment
cannot be executed.
        {¶ 9} Accordingly, we vacate our February 5, 2020 judgment and deny the
writ.
                                                                  Judgment vacated
                                                                    and writ denied.
        O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
                               _________________
        Jeffrey Newsome, pro se.




                                         3
                           SUPREME COURT OF OHIO




       Raymond A. Grogan, Jr., Marion County Prosecuting Attorney, and
William J. Owen, Assistant Prosecuting Attorney, for respondents.
                             _________________




                                       4
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