[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

ex rel. Arnold v. Gallagher, Slip Opinion No. 2018-Ohio-2628.] 

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. 2018-OHIO-2628

THE STATE EX REL. ARNOLD, APPELLANT, v. GALLAGHER, JUDGE, ET AL.,

APPELLEES. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. Arnold v. Gallagher, Slip Opinion No. 

2018-Ohio-2628.] 

Mandamus—Procedendo—Court of appeals’ denial of writs affirmed. 

(No. 2017-0830—Submitted December 5, 2017—Decided July 10, 2018.) 

APPEAL from the Court of Appeals for Cuyahoga County, 

No. 105351, 2017-Ohio-4076. 

________________ 

 Per Curiam. 

{¶ 1} Appellant, Martice Arnold, appeals from the judgment of the Eighth 

District Court of Appeals denying his request for writs of mandamus and/or 

procedendo against appellee Cuyahoga County Court of Common Pleas Judge 

Hollie L. Gallagher. During the pendency of this case, Arnold filed numerous 

motions. We deny all the motions and affirm the judgment of the court of appeals. 
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BACKGROUND 

{¶ 2} On October 27, 1994, the Cuyahoga County Grand Jury returned an 

eight-count indictment against Arnold, charging him with two counts of aggravated 

murder (Counts 1 and 2, each with four capital specifications), three counts of 

attempted murder (Counts 3, 4, and 5), one count of aggravated robbery (Count 6), 

and two counts of kidnapping (Counts 7 and 8). Each of the eight counts included 

a firearm specification. 

{¶ 3} On March 29, 1995, the parties appeared before Cuyahoga County 

Court of Common Pleas Judge Thomas J. Pokorny. Arnold pleaded guilty to the 

charge of aggravated murder in Count 2, with all the capital specifications removed 

and only the gun specification remaining. He also pleaded guilty to Counts 3, 4, 5, 

and 7, with a gun specification attached to each. The state dismissed Counts 1, 6, 

and 8. 

{¶ 4} That same day, Judge Pokorny filed an entry memorializing the incourt proceedings. Consistently with the state’s representations, the court noted in 

the entry that Count 2 had been amended to delete the four capital specifications. 

But the entry then indicates that Arnold pleaded guilty to “Amended Ct 1.” The 

court noted in the entry that Arnold pleaded guilty to three counts of attempted 

murder with firearm specifications and one count of kidnapping with a firearm 

specification and that all “remaining counts” were dismissed. 

{¶ 5} The entry’s reference to Arnold’s guilty plea to “Amended Ct 1” 

appears to be a typographical error. As noted, the court amended Count 2, not 

Count 1, to dismiss the capital specifications. 

{¶ 6} Judge Pokorny later journalized a separate sentencing entry, imposing 

a prison term of 20 years to life, plus an aggregate term of 6 years on the gun 

specifications. The sentencing entry correctly states that Arnold had pleaded guilty 

to aggravated murder under amended Count 2. 
January Term, 2018 

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{¶ 7} On January 10, 2017, Arnold filed an original action in the Eighth 

District Court of Appeals against Judge Gallagher (as successor to Judge Pokorny) 

and appellee Cuyahoga County Clerk of Courts Nailah Byrd. He alleged that his 

1995 sentencing entry was void because it was not journalized within 30 days of 

his guilty plea (as required by former Sup.R. 13), did not dismiss Count 1, did not 

indicate that he had waived his constitutional rights, did not state that he had 

pleaded guilty to amended Count 2, and misstated the sentencing date. He also 

argued that Judge Pokorny miscalculated the aggregate term imposed for the 

firearm specifications by running two of the three-year terms consecutively. He 

sought writs of mandamus and/or procedendo to compel Judge Gallagher to 

conduct a de novo resentencing and issue a new final, appealable order, and to 

compel Byrd to journalize the new sentencing entry once it was created. 

{¶ 8} Judge Gallagher and Byrd filed a joint motion for summary judgment, 

to which Arnold responded. On May 26, 2017, the court of appeals granted 

summary judgment in favor of Judge Gallagher and Byrd. 

{¶ 9} Arnold timely appealed and filed a motion for appointment of 

counsel. Arnold later filed four motions to supplement the record, which we 

denied. 150 Ohio St.3d 1415, 2017-Ohio-7040, 79 N.E.3d 568. Thereafter, the 

parties filed merit briefs. And in September and October 2017, Arnold filed nine 

pleadings in this court; Judge Gallagher and Byrd have not responded to any of 

these filings. 

LEGAL ANALYSIS 

Issues Raised by Arnold on Appeal 

Proposition of law Nos. 1 and 7

{¶ 10} Arnold appeared in court to enter his plea orally on March 29, 1995. 

He alleges, “The record is silent from this March 29, 1995 hearing until May 16, 

1995. * * * No journal entry had been entered or filed reflecting that a hearing had 

taken place * * *.” In support of proposition of law No. 1, he argues that former 
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Sup.R. 13 (now Sup.R. 7) required the trial court to file an entry within 30 days of 

his guilty plea and that a writ of mandamus should issue to compel Judge Gallagher 

to issue a new entry. And in proposition of law No. 7, he asserts that the alleged 

failure to issue an entry within 30 days of his guilty plea violated his constitutional 

rights. 

{¶ 11} The evidence in the record does not support these claims. Arnold 

relies on the Appearance and Execution Criminal Docket, which contains 

handwritten entries for March 29 and April 28, 1995. This document is not part of 

the record in Arnold’s case, and even if it were, Arnold misunderstands its 

significance. 

{¶ 12} As its name suggests, the Appearance and Execution Criminal 

Docket records only court appearances by the defendant. For a complete record of 

entries filed in the case, one must refer to the clerk’s docket sheet, which is attached 

to Arnold’s complaint. The docket sheet shows that the trial court filed an entry 

memorializing the March 29 plea hearing the same day as the hearing and filed the 

sentencing entry on April 28, exactly 30 days later. Therefore, no violation of 

former Sup.R. 13 or Arnold’s constitutional rights occurred. 

{¶ 13} We reject proposition of law Nos. 1 and 7. 

Proposition of law Nos. 2 and 8

{¶ 14} Proposition of law Nos. 2 and 8 arise from the trial court’s alleged 

failure to dismiss Count 1. As shown above, the reference to Arnold’s guilty plea 

to “Amended Ct 1” in the March 29, 1995 entry was a typographical error, which 

the court remedied in its sentencing order. Because the March 29 entry should have 

indicated a guilty plea to Count 2, Count 1 was included in the “remaining counts” 

that were dismissed by the state at that time. 

{¶ 15} Nevertheless, Arnold claims that he is entitled to a writ of mandamus 

to compel resentencing. But Arnold could have challenged the March 29, 1995 

entry on direct appeal. Therefore, he had an adequate remedy by way of appeal. 
January Term, 2018 

5

State ex rel. Nelson v. Russo, 131 Ohio St.3d 51, 2011-Ohio-6552, 960 N.E.2d 448. 

We reject proposition of law Nos. 2 and 8. 

Proposition of law Nos. 3 and 5

{¶ 16} In proposition of law Nos. 3 and 5, Arnold challenges Judge 

Gallagher’s authority to issue two nunc pro tunc entries. Proposition of law No. 3 

asserts that the judge lacked jurisdiction to issue the entries because the case had 

already been heard on appeal. And proposition of law No. 5 attacks the validity of 

the entries on separation-of-powers grounds. 

{¶ 17} Judge Gallagher issued two nunc pro tunc orders on March 1, 2017. 

The first order corrected the error in the March 1995 plea entry to indicate that 

Arnold had pleaded guilty to amended Count 2 rather than amended Count 1. The 

second order corrected and clarified the sentences imposed on each offense and 

specification. Trial courts in criminal matters “retain continuing jurisdiction to 

correct clerical errors in judgments by nunc pro tunc entry to reflect what the court 

actually decided.” State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio229, 943 N.E.2d 1010, ¶ 13. 

{¶ 18} Arnold has not demonstrated any defect in Judge Gallagher’s 

jurisdiction to correct the two entries issued in 1995, and he offers no coherent 

separation-of-powers argument. We therefore reject proposition of law Nos. 3 and 

5. 

Proposition of law No. 4

{¶ 19} Proposition of law No. 4 asserts that the court of appeals improperly 

granted summary judgment in the face of disputed material facts. But Arnold does 

not identify any additional facts that should have precluded summary judgment. 

We reject proposition of law No. 4. 

Proposition of law No. 6

{¶ 20} Proposition of law No. 6 asserts that Arnold’s sentence, as set forth 

in the nunc pro tunc sentencing entry, is void because it does not reflect the law in 
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effect at the time of his crimes. But he does not explain how Judge Gallagher 

supposedly deviated from the statutory requirements in force at the time of the 

offenses. We reject proposition of law No. 6. 

Arnold’s Procedural Filings 

Motions for appointment of counsel

{¶ 21} On June 16, 2017, along with his notice of appeal, Arnold filed a 

motion asking this court to appoint counsel to represent him in this appeal, pursuant 

to the Rules for Appointment of Counsel in Capital Cases. More recently, on 

October 25, 2017, he filed a second motion for appointment of counsel, this time 

specifically citing Appt.Coun.R. 5.03 and 28 U.S.C. 1915. 

{¶ 22} Under Appt.Coun.R. 1.04(A), the Rules for Appointment of Counsel 

in Capital Cases are applicable whenever an indigent defendant has been charged 

with aggravated murder and the indictment includes one or more capital 

specifications under R.C. 2929.04(A). Even assuming that Arnold’s case is still a 

capital case (as noted above, the capital specifications were dismissed), he is still 

not entitled to appointment of counsel. The rules provide for only two types of 

appointment: (1) trial counsel to defend an indigent defendant from capital charges, 

Appt.Coun.R. 5.02(A), and (2) appellate counsel when the trial court has imposed 

a sentence of death, Appt.Coun.R. 5.03(A). The rules do not provide for appointed 

counsel for a collateral proceeding, which is consistent with the principle that 

“[i]ndigent criminal defendants, prior to conviction, have the constitutional right to 

appointed counsel, but that right does not necessarily extend to postconviction

pleadings such as motions for delayed appeals or applications to reopen appeals 

* * *,” Disciplinary Counsel v. Cotton, 115 Ohio St.3d 113, 2007-Ohio-4481, 873 

N.E.2d 1240, ¶ 15, fn. 6 (plurality opinion). 

{¶ 23} Arnold’s reliance on 28 U.S.C. 1915 is equally unavailing. Section 

1915 governs suits by prisoners in “any court of the United States.” 28 U.S.C. 

1915(a)(1). The statutory phrase “court of the United States” refers to Article III 
January Term, 2018 

7

courts and certain federal courts created by act of Congress but does not include 

state courts. See 28 U.S.C. 451; Harris v. Mangum, 863 F.3d 1133, 1140 (9th 

Cir.2017); Wheeler v. Ulisny, 482 Fed.Appx. 665, 667-668 (3d Cir.2012). 

{¶ 24} We deny the motions for appointment of counsel. 

Discovery motions

{¶ 25} On September 1, 2017, Arnold filed four pleadings to compel 

different forms of discovery: (1) a Civ.R. 26 motion to compel the production of 

certain documents, (2) a Civ.R. 34 motion to permit inspection of certain 

documents, (3) a Civ.R. 37 motion to compel Judge Gallagher to submit to an oral 

deposition, and (4) a Civ.R. 33(A) motion for leave to serve interrogatories by 

ordinary mail only. These motions are all denied. 

{¶ 26} The Rules of Civil Procedure supplement this court’s rules in 

original actions before this court. S.Ct.Prac.R. 12.01(A)(2)(b). However, the 

Rules of Practice of this court make no provision for discovery during an appeal as 

of right. Nor are we inclined to order discovery as a matter of discretion, given that 

Arnold’s motions do not explain why the information he seeks is relevant, much 

less necessary. We deny the four discovery-related motions. 

Motion to change venue

{¶ 27} On September 12, 2017, Arnold filed a motion for a change of venue 

pursuant to Civ.R. 3(C)(4). The motion asks that in the event that we order a new 

sentencing hearing, we transfer the case out of Cuyahoga County. A venue change 

is necessary, he argues, due to media attention in Cuyahoga County to his 

underlying case and also because he fears that Judge Gallagher will seek retribution 

for his filing an affidavit of disqualification against her, which was denied on 

September 28, 2017. See In re Disqualification of Gallagher, Supreme Court case 

No. 17-AP-101. Because we are not remanding the case for a new sentencing 

hearing, this motion is moot. 
SUPREME COURT OF OHIO

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Jury demand

{¶ 28} On September 12, 2017, Arnold filed a jury demand, pursuant to 

Civ.R. 38(B). Civ.R. 38(B) provides that any party “may demand a trial by jury on 

any issue triable of right by a jury.” Issues raised in a mandamus action are not 

“triable of right” by a jury. Freeman v. Wilkinson, 65 Ohio St.3d 307, 309, 603 

N.E.2d 993 (1992). We deny Arnold’s jury demand. 

Requests for judicial notice and opportunity to be heard

{¶ 29} There are two rules pertaining to judicial notice. Civ.R. 44.1 

“pertains to judicial notice of domestic and foreign laws.” Daloia v. Franciscan 

Health Sys. of Cent. Ohio, Inc., 79 Ohio St.3d 98, 108, 679 N.E.2d 1084 (1997). 

And Evid.R. 201 permits a court to take judicial notice of “adjudicative facts; i.e., 

the facts of the case.” Evid.R. 201(A). On September 27, 2017, Arnold filed a 

request for judicial notice under Civ.R. 44.1, and on October 17, 2017, he filed a 

request for an opportunity to be heard pursuant to Evid.R. 201(E). 

{¶ 30} Under Evid.R. 201(E), a party is entitled to an opportunity to be 

heard as to the propriety of taking judicial notice. Arnold availed himself of the 

opportunity to be heard on the issue when he filed his request for judicial notice. 

See State ex rel. Bell v. Pfeiffer, 131 Ohio St.3d 114, 2012-Ohio-54, 961 N.E.2d 

181, ¶ 15 (“Bell was given the opportunity to be heard on this issue when he raised 

it in his objections to the magistrate’s decision. No oral hearing was required”). 

We deny Arnold’s Evid.R. 201(E) request. 

{¶ 31} We also deny Arnold’s request for judicial notice under both the 

Civil Rules and the Rules of Evidence. His request asks this court to take judicial 

notice of numerous disputed facts (e.g., that his sentencing entry and judgments of 

conviction “are incorrect, inconsistent with the transcripts of proceedings and 

invalid”) and legal conclusions (e.g., that the court of appeals lacked jurisdiction 

over his direct appeal). Judicial findings under Civ.R. 44.1(A)(1) are restricted to 

“the rules of the supreme court of this state and of the decisional, constitutional, 
January Term, 2018 

9

and public statutory law of this state.” And the “facts” Arnold has identified are 

not proper “adjudicative facts” under the Rules of Evidence. The only facts subject 

to judicial notice are those that are “not subject to reasonable dispute.” Evid.R. 

201(B); State v. Murphy, 10th Dist. Franklin No. 12AP-952, 2013-Ohio-5599, ¶ 24 

(declining to take judicial notice of alleged prosecutorial misconduct, discovery 

violations, and error by the trial court). 

Judgment affirmed. 

O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, and DEWINE, JJ., 

concur. 

O’DONNELL, J., concurs in judgment only. 

DEGENARO, J., not participating. 

_________________ 

Martice Arnold, pro se. 

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and James 

E. Moss, Assistant Prosecuting Attorney, for appellees. 

_________________