[Cite as Parham v. McManamon, 2016-Ohio-3264.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 103679 

DUNCAN PARHAM

 PLAINTIFF-APPELLANT

vs. 

 JOSEPH F. McMANAMON, ET AL.

DEFENDANTS-APPELLEES

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-15-847772 

BEFORE: Jones, A.J., Boyle, J., and Celebrezze, J. 

RELEASED AND JOURNALIZED: June 2, 2016 
FOR APPELLANT 

Duncan Parham, pro se 

Inmate No. 231-113 

Pickaway Correctional Institution 

11781 State Route 762 

P.O. Box 209 

Orient, Ohio 43146

ATTORNEYS FOR APPELLEE 

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Amy Venesile 

Assistant County Prosecutor 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113
 

LARRY A. JONES, SR., A.J.: 

{¶1} In this accelerated appeal, plaintiff-appellant Duncan Parham appeals from the 

trial court’s October 13, 2015 judgment dismissing his civil declaratory judgment action. 

Because this case is on the accelerated docket under App.R. 11.1 and Loc.R. 11.1, “we 

may render a decision in ‘brief and conclusionary form’ consistent with App.R. 11.1(E).” 

State v. Fye, 8th Dist. Cuyahoga No. 102494, 2015-Ohio-4184, ¶ 1, quoting App.R. 

11.1(E). 

{¶2} In 1991, Parham was found guilty, after a bench trial, of aggravated murder 

with a firearm specification. The trial court sentenced him to a life term plus three years 

for the firearm specification. Parham appealed, challenging the sufficiency and weight of 

the evidence; the effectiveness of trial counsel based on counsel’s failure to file a motion 

to suppress and discovery motions, and counsel’s evidentiary decisions; and the trial 

court’s decisions on evidentiary issues. State v. Parham, 8th Dist. Cuyahoga No. 61349, 

1993 Ohio App. LEXIS 100 (Jan. 14, 1993). This court affirmed the conviction. Id. at 

18. 

{¶3} In July 2015, Parham filed this civil declaratory judgment against 

defendants-appellees, Judge Joseph McManamon (the trial judge who presided over his 

criminal case) and John T. Corrigan (the county prosecutor at the time of his indictment 

and during his trial). Parham sought a declaration that the trial court did not have 

jurisdiction over him at the time of his criminal trial because the grand jury did not return 
an indictment under the criminal case number. Specifically, Parham contended that an 

employee of the prosecutor’s office “forged an indictment” and “forged the grand jury 

foreman’s name.” Complaint, ¶ 8. 

{¶4} In October 2015, the trial court, sua sponte, dismissed this case for failure to 

state a claim upon which relief can be granted, reasoning that Parham should have raised 

the issue he attempted to raise in his direct appeal. Parham now presents two 

assignments of error for our review, both challenging the trial court’s dismissal of his 

complaint. We affirm. 

{¶5} The decision to grant declaratory relief is a matter within the sound discretion 

of the trial court. State v. Brooks, 133 Ohio App.3d 521, 525, 728 N.E.2d 1119 (4th 

Dist.1999), citing Arbor Health Care Co. v. Jackson, 39 Ohio App.3d 183, 185, 530 

N.E.2d 928 (10th Dist.1987). Accordingly, we will not reverse the trial court’s dismissal 

of Parham’s complaint for declaratory relief unless the trial court abused its discretion. 

Brooks at id., citing Arbor Health at id. The term “abuse of discretion” connotes more 

than an error of law or judgment; it implies that the court’s attitude is unreasonable, 

arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 

N.E.2d 1140 (1983). 

{¶6} In order to maintain an action for declaratory judgment, a party must 

demonstrate that a real controversy exists between the parties, that the controversy is 

justiciable in character, and that speedy relief is necessary to preserve the rights of the 

parties. Burger Brewing Co. v. Liquor Control Comm., 34 Ohio St.2d 93, 97, 296 N.E.2d 
261 (1973). “A trial court may dismiss a complaint for declaratory relief only if no real 

controversy or justiciable issue exists, or if the declaratory judgment will not terminate the 

uncertainty or controversy.” Reinbolt v. Natl. Fire Ins. Co. of Hartford, 158 Ohio App.3d 

453, 2004-Ohio-4845, 816 N.E.2d 1083, ¶ 13 (6th Dist.), citing Fioresi v. State Farm Mut. 

Auto. Ins. Co., 26 Ohio App.3d 203, 499 N.E.2d 5 (1st Dist.1985). 

{¶7} A declaratory judgment action is not a part of the criminal appellate process. 

Brooks at id., citing Tootle v. Wood, 40 Ohio App.2d 576, 577, 321 N.E.2d 623 (4th 

Dist.1974); Richard v. Jones, 8th Dist. Cuyahoga No. 64769, 1994 Ohio App. LEXIS 788 

(Mar. 3, 1994). “The effect of a dismissal of a declaratory judgment action without 

making a declaration of the parties’ rights is a determination that the plaintiff in the 

declaratory judgment action has no right to a declaratory judgment.” State ex rel. Fenske 

v. McGovern, 11 Ohio St.3d 129, 133, 464 N.E.2d 525 (1984). 

{¶8} Parham appealed his conviction, but did not raise the issue he now seeks to 

adjudicate regarding the indictment. He cannot now seek to use declaratory judgment as 

part of the criminal appellate process. Moreover, even if he had raised this issue on 

appeal, we find that he would not have been successful. Under Crim.R. 12, his challenge 

to the indictment would have had to have been made prior to trial. See Crim.R. 12(C)(2). 

 Failure to make such challenges prior to trial results in a waiver. See Crim.R. 12(H). 

{¶9} In light of the above, Parham’s two assigned errors are overruled and the trial 

court’s judgment is affirmed. 

It is ordered that appellee recover of appellant costs herein taxed. 
The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the Cuyahoga 

County Court of Common Pleas to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

 

 

LARRY A. JONES, SR., ADMINISTRATIVE JUDGE 

MARY J. BOYLE, J., and 

FRANK D. CELEBREZZE, JR., J., CONCUR