State ex rel. Mobarak v. Brown

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

ex rel. Mobarak v. Brown, Slip Opinion No. 2024-Ohio-221.]

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. 2024-OHIO-221

THE STATE EX REL. MOBARAK, APPELLANT , v. BROWN, J UDGE, APPELLEE .

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

may be cited as State ex rel. Mobarak v. Brown, Slip Opinion No.

2024-Ohio-221.]

Mandamus—Petition failed to state a mandamus claim because appellant had

adequate remedy in ordinary course of law and failed to show that trial

court had patently and unambiguously lacked jurisdiction over his criminal

case—Court of appeals’ judgment dismissing petition affirmed.

(No. 2023-0369—Submitted September 26, 2023—Decided January 25, 2024.)

APPEAL from the Court of Appeals for Franklin County,

No. 22AP-482, 2023-Ohio-436.

__________________

Per Curiam.

{¶ 1} Appellant, Soleiman Mobarak, appeals the judgment of the Tenth

District Court of Appeals dismissing his petition for a writ of mandamus against

appellee, Franklin County Court of Common Pleas Judge Jeffrey M. Brown.

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Mobarak petitioned the court of appeals to vacate his criminal convictions for lack

of subject-matter jurisdiction in the trial court. The court of appeals held that the

trial court had not lacked jurisdiction over Mobarak’s criminal case and that

Mobarak had an adequate remedy in the ordinary course of the law. We affirm.

FACTS AND PROCEDURAL HISTORY

{¶ 2} In 2012, Mobarak was indicted on charges of engaging in a pattern of

corrupt activity, aggravated trafficking in drugs, and aggravated possession of

drugs. The charges alleged that Mobarak had possessed and sold a controlled-

substance analog commonly known as bath salts. Following a jury trial, Mobarak

was found guilty and the trial court sentenced him to 35 years in prison. On direct

appeal, the Tenth District reversed Mobarak’s convictions, concluding that

“possession and trafficking of controlled substance analogs had not yet been

criminalized as of the time of [Mobarak’s] offenses.” State v. Mobarak, 10th Dist.

Franklin No. 14AP-517, 2015-Ohio-3007, ¶ 9 (“Mobarak I”). This court reversed

the court of appeals’ judgment based on State v. Shalash, 148 Ohio St.3d 611, 2016-

Ohio-8358, 71 N.E.3d 1089. State v. Mobarak, 150 Ohio St.3d 26, 2016-Ohio-

8372, 78 N.E.3d 832, ¶ 1 (“Mobarak II”). In Shalash, this court held that

“[a]lthough controlled-substance analogs were not specifically proscribed by R.C.

Title 29 [in October 2011], other provisions of the Revised Code incorporated

controlled-substance analogs into R.C. Title 29.” Id. at ¶ 13, citing R.C. 3719.013.

This court remanded Mobarak’s case to the Tenth District for further proceedings

consistent with Shalash. Mobarak II at ¶ 1. On remand, the court of appeals

affirmed Mobarak’s convictions. State v. Mobarak, 2017-Ohio-7999, 98 N.E.3d

1023, ¶ 37 (10th Dist.) (“Mobarak III”).

{¶ 3} In August 2022, Mobarak petitioned the Tenth District for a writ of

mandamus. His petition asserted that the trial court had lacked subject-matter

jurisdiction over his criminal case because (1) there was no statute prohibiting the

possession or sale of bath salts at the time his offenses were alleged to have

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occurred, (2) bath salts were not controlled-substance analogs under Ohio law prior

to October 2011, (3) his indictment failed to set out all the elements of the charges

of possession or trafficking, and (4) the controlled-substance-analogs law was

unconstitutionally vague. Mobarak asked the court of appeals to order Judge

Brown to vacate his convictions.

{¶ 4} Judge Brown filed a Civ.R. 12(B)(6) motion to dismiss. The motion

argued several reasons for dismissal, including that Mobarak had a plain and

adequate remedy in the ordinary course of the law. A magistrate recommended

dismissing Mobarak’s petition because he had an adequate legal remedy. The court

of appeals adopted the magistrate’s decision and dismissed the petition. The court

found that Mobarak’s allegation that the trial court had lacked subject-matter

jurisdiction was an unsupported legal conclusion. Mobarak appealed to this court

as of right.

ANALYSIS

{¶ 5} To dismiss a claim pursuant to Civ.R. 12(B)(6), it must appear beyond

doubt from the complaint that the relator can prove no set of facts warranting relief,

after all factual allegations are presumed true and all reasonable inferences are

made in his favor. State ex rel. Natl. Elec. Contrs. Assn., Ohio Conference v. Ohio

Bur. of Emp. Servs., 83 Ohio St.3d 179, 181, 699 N.E.2d 64 (1998). This court

reviews de novo the court of appeals’ dismissal of Mobarak’s petition. See State

ex rel. Brown v. Nusbaum, 152 Ohio St.3d 284, 2017-Ohio-9141, 95 N.E.3d 365,

¶ 10.

{¶ 6} To obtain a writ of mandamus, a relator must establish by clear and

convincing evidence (1) a clear legal right to the requested relief, (2) a clear legal

duty on the part of the respondent to provide it, and (3) the lack of an adequate

remedy in the ordinary course of the law. State ex rel. Love v. O’Donnell, 150 Ohio

St.3d 378, 2017-Ohio-5659, 81 N.E.3d 1250, ¶ 3. If the respondent’s lack of

jurisdiction is patent and unambiguous, the relator need not establish the lack of an

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adequate remedy in the ordinary course of the law. State ex rel. Ford v. Ruehlman,

149 Ohio St.3d 34, 2016-Ohio-3529, 73 N.E.3d 396, ¶ 62.

{¶ 7} The court of appeals correctly held that Mobarak’s petition failed to

state a mandamus claim because he had an adequate remedy in the ordinary course

of the law and failed to show that the trial court had patently and unambiguously

lacked jurisdiction over his criminal case. The Ohio Constitution provides, “The

courts of common pleas and divisions thereof shall have such original jurisdiction

over all justiciable matters * * * as may be provided by law.” Ohio Constitution,

Article IV, Section 4(B). This court has held that “the court of common pleas is a

court of general jurisdiction, with subject-matter jurisdiction that extends to ‘all

matters at law and in equity that are not denied to it.’ ” Bank of Am., N.A. v. Kuchta,

141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 20, quoting Saxton v.

Seiberling, 48 Ohio St. 554, 558-559, 29 N.E. 179 (1891). The “provided by law”

qualification of Article IV means that there must be a statutory basis for

jurisdiction. R.C. 2931.03 provides that basis, granting the courts of common pleas

“original jurisdiction [over] all crimes and offenses, except in cases of minor

offenses the exclusive jurisdiction of which is vested in courts inferior to the court

of common pleas.” Mobarak was charged with multiple felonies. Mobarak I, 2015-

Ohio-3007, at ¶ 1 (listing charges). By virtue of the Ohio Constitution and R.C.

2931.03, the trial court had jurisdiction over Mobarak’s criminal case.

{¶ 8} This court recently affirmed the dismissal of a similar action. In State

ex rel. Boler v. McCarthy, 170 Ohio St.3d 392, 2023-Ohio-500, 213 N.E.3d 690,

¶ 3, the relator sought writs of mandamus and prohibition to vacate his criminal

convictions. Boler argued that the “trial court [had] lacked jurisdiction to * * *

misconstrue and misapply Ohio’s aggravated-robbery statute.” Id. In rejecting this

argument, this court stated, “[T]he trial court plainly had subject-matter jurisdiction

over Boler’s criminal case under R.C. 2931.03, which gives common pleas courts

subject-matter jurisdiction over felony cases. Boler has not identified any statute

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that removed the trial court’s jurisdiction.” Id. at ¶ 9, citing Ohio High School

Athletic Assn. v. Ruehlman, 157 Ohio St.3d 296, 2019-Ohio-2845, 136 N.E.3d 436,

¶ 9 (“when we have found that a court of common pleas patently and

unambiguously lacks jurisdiction, it is almost always because a statute explicitly

removed that jurisdiction”). Like Boler, Mobarak attempts to challenge his

convictions in jurisdictional terms but fails to point to any authority supporting his

claim that the trial court had lacked jurisdiction over his criminal case.

{¶ 9} Moreover, Mobarak argues that because neither bath salts nor control-

substance analogs were criminalized prior to 2012, the trial court had lacked

jurisdiction over his criminal case. He similarly argues that R.C. 3719.01 and

3719.013, the statutes defining a “controlled-substance analog,” are

unconstitutionally vague. These arguments are substantially similar to those raised

and rejected in Mobarak’s prior appeals. See Mobarak II, 150 Ohio St.3d 26, 2016-

Ohio-8372, 78 N.E.3d 832, at ¶ 1 (reversing Mobarak I under the authority of

Shalash, 148 Ohio St.3d 611, 2016-Ohio-8358, 71 N.E.3d 1089, which found that

controlled-substance analogs were criminalized as of October 17, 2011); Mobarak

III, 2017-Ohio-7999, 98 N.E.3d 1023, at ¶ 17 (“we find the ‘controlled substance

analog’ statute under which [Mobarak] was convicted was not unconstitutionally

vague on its face or in its application”). This court has “routinely held that

extraordinary writs may not be used as a substitute for an otherwise barred second

appeal or to gain successive appellate reviews of the same issue.” State ex rel. LTV

Steel Co. v. Gwin, 64 Ohio St.3d 245, 249, 594 N.E.2d 616 (1992). “[T]he fact that

a prior appeal was unsuccessful or even wrongly decided does not mean that it was

not an adequate remedy.” (Emphasis sic.) State ex rel. Peoples v. Johnson, 152

Ohio St.3d 418, 2017-Ohio-9140, 97 N.E.3d 426, ¶ 11, citing State ex rel. Walker

v. State, 142 Ohio St.3d 365, 2015-Ohio-1481, 30 N.E.3d 947, ¶ 14, and State ex

rel. Barr v. Pittman, 127 Ohio St.3d 32, 2010-Ohio-4989, 936 N.E.2d 43, ¶ 1. The

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court of appeals correctly dismissed Mobarak’s claim because he had an adequate

remedy in the ordinary course of the law.

CONCLUSION

{¶ 10} We affirm the Tenth District Court of Appeals’ judgment dismissing

Mobarak’s petition for a writ of mandamus.

Judgment affirmed.

KENNEDY, C.J., and FISCHER, DEWINE, STEWART, and DETERS, JJ., concur.

DONNELLY, J., concurs in judgment only, with an opinion.

BRUNNER, J., not participating.

_________________

DONNELLY, J., concurring in judgment only.

{¶ 11} This case is disturbing. Soleiman Mobarak filed an original action

in mandamus in the Tenth District Court of Appeals, alleging that the Franklin

County Court of Common Pleas had lacked subject-matter jurisdiction over his

criminal case. In support of his claim, he asserted that the conduct for which he

was convicted—the sale of controlled-substance analogs—was not criminalized

when he allegedly committed the conduct, thereby depriving the trial court of

jurisdiction. The Tenth District dismissed Mobarak’s mandamus petition, finding

that Mobarak possessed an adequate remedy in the ordinary course of the law and

that he had presented unsupported legal conclusions in the petition relating to the

trial court’s purported lack of jurisdiction. 2023-Ohio-436, ¶ 10-11, 13-15. This

court now affirms that conclusion. Because there are procedural bars to Mobarak’s

seeking equitable relief here, I am compelled to accept this court’s judgment. But

my conscience compels me to express my concerns about the issues raised in

Mobarak’s appeal.

{¶ 12} To prevail on his mandamus claim, Mobarak must demonstrate by

clear and convincing evidence (1) a clear legal right to the requested relief, (2) a

clear legal duty on the part of the respondent to provide the relief, and (3) the lack

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of an adequate remedy in the ordinary course of the law. State ex rel. Love v.

O’Donnell, 150 Ohio St.3d 378, 2017-Ohio-5659, 81 N.E.3d 1250, ¶ 3. But

Mobarak need not show the lack of an adequate remedy in the ordinary course of

the law if the respondent’s lack of jurisdiction is patent and unambiguous. State ex

rel. Ford v. Ruehlman, 149 Ohio St.3d 34, 2016-Ohio-3529, 73 N.E.3d 396, ¶ 62.

The crux of Mobarak’s claim is that the trial court lacked subject-matter jurisdiction

because the conduct for which he was convicted was not criminalized when he

allegedly committed it. And I believe there is merit to that claim.

{¶ 13} Under Ohio’s Constitution, the courts of common pleas are courts of

general jurisdiction, possessing original jurisdiction over all justiciable matters as

may be provided by law. Ohio Constitution, Article IV, Section 4(B). This includes

having “original jurisdiction of all crimes and offenses” that are not otherwise

entrusted to another tribunal. R.C. 2931.03. According to the majority opinion,

these provisions support the conclusion that the trial court possessed subject-matter

jurisdiction over Mobarak’s criminal case. The majority reasons that because

courts of common pleas have subject-matter jurisdiction over felony cases and

Mobarak was charged with multiple felonies, the Franklin County Court of

Common Pleas had jurisdiction over Mobarak’s criminal case. Majority opinion,

¶ 7. But this conclusion elides the operative question that Mobarak raises: Was the

conduct for which he was charged and convicted a felony? Answering that question

requires more analysis than the majority opinion provides.

{¶ 14} Criminal laws should inform the public of which conduct is

prohibited and which is not. Ohio achieves this end by making its criminal law a

creation of statute: “No conduct constitutes a criminal offense against the state

unless it is defined as an offense in the Revised Code.” R.C. 2901.03(A). A

criminal offense is defined “when one or more sections of the Revised Code state

a positive prohibition or enjoin a specific duty, and provide a penalty for violation

of such prohibition or failure to meet such duty.” R.C. 2901.03(B). Because

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criminal offenses are statutory in nature, the elements for determining criminal

liability must be drawn wholly from the statutory text. State v. Ford, 128 Ohio

St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, ¶ 10. Thus, for the trial court to have

had jurisdiction over Mobarak’s criminal case, the Revised Code must set out a

prohibited act, with a corresponding penalty, that Mobarak was accused of

committing. Moreover, the elements of the alleged criminal act can come only from

the statutory text.

{¶ 15} Mobarak was charged with and convicted of engaging in a pattern of

corrupt activity, aggravated trafficking in drugs, and aggravated possession of

drugs, all stemming from his alleged sale and possession of a controlled-substance

analog known as bath salts. But at the time of Mobarak’s alleged conduct, the

statutes that criminalized the sale or possession of drugs referred only to “a

controlled substance.” The General Assembly’s amendments to R.C. 2925.03 and

2925.11 criminalizing the sale or possession of “a controlled substance analog” did

not become effective until December 20, 2012. 2012 Sub.H.B. No. 334. Mobarak’s

alleged conduct occurred from March through July 2012; during that time, nothing

in R.C. 2925.03 or 2925.11 suggested that the sale or possession of a controlled-

substance analog was a criminal offense, nor did either statute lay out a penalty for

engaging in that conduct. In short, while R.C. 2925.03 and 2925.11 prescribed a

crime for the sale or possession of controlled substances, these statutes did not

prescribe a crime for Mobarak’s conduct—the sale or possession of controlled-

substance analogs. Absent a crime having been committed, I am not convinced

that there was a justiciable matter over which the trial court possessed subject-

matter jurisdiction in Mobarak’s criminal case.

{¶ 16} Mobarak’s argument on this point originally carried the day,

resulting in the unanimous reversal of his criminal convictions in the court of

appeals on direct appeal. State v. Mobarak, 10th Dist. Franklin No. 14AP-517,

2015-Ohio-3007, ¶ 6-9 (“Mobarak I”). That decision was then overturned,

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however, based on our decision in State v. Shalash, 148 Ohio St.3d 611, 2016-Ohio-

8358, 71 N.E.3d 1089. State v. Mobarak, 150 Ohio St.3d 26, 2016-Ohio-8372, 78

N.E.3d 832, ¶ 1 (“Mobarak II”). In Shalash, this court acknowledged that

controlled-substance analogs were not covered under the elements of R.C. 2925.03

at the time of Shalash’s alleged criminal conduct. Shalash at ¶ 7. Even so, the court

concluded that the Revised Code had criminalized the sale of controlled-substance

analogs because R.C. 3719.013—a statute in R.C. Chapter 3719, which generally

relates to the civil regulation of controlled substances—stated that controlled-

substance analogs “ ‘shall be treated’ ” the same as controlled substances for “ ‘any

provision of the Revised Code.’ ” Shalash at ¶ 11, quoting R.C. 3719.013. While

Shalash might be dispositive, I don’t find it persuasive.

{¶ 17} First, the majority opinion in Shalash ignored persuasive arguments

that undermine its reasoning. One need only look at the Tenth District Court of

Appeals’ opinion explaining its judgment reversing Mobarak’s conviction to see

how paper thin this court’s reasoning in Shalash is. In its opinion, the Tenth District

identified several reasons that weighed against incorporating the civil-regulation

definition of controlled substances (which includes controlled-substance analogs)

into the statutes criminalizing the sale or possession of controlled substances.

Mobarak I at ¶ 7, citing State v. Smith, 10th Dist. Franklin Nos. 14AP-154 and

14AP-155, 2014-Ohio-5303. These reasons included the General Assembly’s

decision to incorporate only some of the definitions of terms in the civil controlled-

substances laws into R.C. 2925.01, which defines terms applicable to drug offenses

under R.C. Chapter 2925; the express statement in R.C. 3719.01 limiting the use of

the definitions contained in that statute to R.C. Chapter 3719; and the lack of cross-

references or any other indication in R.C. Chapter 2925 that the definitions relating

to the classification of controlled substances for civil-regulation purposes apply to

drug offenses set forth in R.C. Chapter 2925. Mobarak I at ¶ 7.

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{¶ 18} None of these concerns were addressed, let alone resolved, by this

court in Shalash. Instead, this court relied on R.C. 3719.013, Shalash at ¶ 11, even

though that civil-regulation statute did not provide any definition that applied to the

elements of the criminal offenses at issue in that case or in this case. This court

also reasoned that R.C. 3719.013 provided adequate notice of prohibited conduct,

because it was “not a secret provision of the Revised Code” and was found in a

chapter titled “Controlled Substances.” Shalash at ¶ 11.

{¶ 19} I simply don’t buy it. In my view, the Tenth District’s reasoning is

more thorough and compelling than that of this court in Shalash. Further, if the

General Assembly’s incorporation of R.C. 3719.013 into R.C. Chapter 2925 was as

obvious as the court in Shalash believed, I am left wondering why the General

Assembly found it necessary to amend R.C. 2925.03(A)(1) and (2) so that the sale

of controlled-substance analogs satisfied the elements of trafficking in drugs. 2012

Sub.H.B. No. 334.

{¶ 20} Second, this court in Shalash disregarded our long-standing

principles of statutory construction. Under R.C. 2901.04(A), sections of the

Revised Code that define criminal offenses or penalties must be strictly construed

against the state. This rule of construction has been part of this court’s precedent

for over 170 years. See Hall v. State, 20 Ohio 7, 15 (1851) (referencing the long-

settled principle that penal laws are to be strictly construed and not extended by

implication). As acknowledged by the court in Shalash, controlled-substance

analogs were not “specifically proscribed” in R.C. Title 29 at the time of Shalash’s

arrest and indictment. Shalash, 148 Ohio St.3d 611, 2016-Ohio-8358, 71 N.E.3d

1089, at ¶ 13. (And so too for Mobarak. See Mobarak I, 2015-Ohio-3007, at ¶ 9.)

Yet, despite the clear absence of proscription within R.C. Chapter 2925 and the

requirements of both R.C. 2901.04(A) and our caselaw for the strict construction

of penal statutes, the court in Shalash went searching for a statutory justification to

criminalize the conduct that was at issue. And in doing so, this court, not the

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General Assembly, created the elements of the crime for which Mobarak was

convicted.

{¶ 21} No person, however reprehensible his or her conduct is, should be

subjected to criminal liability for committing an act that the law does not

criminalize. Despite that principle, Soleiman Mobarak is serving 35 years in prison

for acts that were not criminalized when he committed them. Ultimately, the issues

that he raises here were resolved during his direct appeal. See Mobarak II, 150

Ohio St.3d 26, 2016-Ohio-8372, 78 N.E.3d 832, at ¶ 1. And that resolution limits

the relief that this court may provide when reviewing the court of appeals’ dismissal

of Mobarak’s petition for mandamus relief. See State ex rel. LTV Steel Co. v. Gwin,

64 Ohio St.3d 245, 249, 594 N.E.2d 616 (1992) (“[E]xtraordinary writs may not be

used as a substitute for an otherwise barred second appeal or to gain successive

appellate reviews of the same issue”). While I am not convinced by this court’s

reasoning supporting its determination that the trial court had jurisdiction over

Mobarak’s criminal case, I accept that this court has resolved the question Mobarak

raises and that that resolution is dispositive here. The law is the law, even if it leads

to repugnant results. As a result, I concur in judgment only.

_________________

Soleiman Mobarak, pro se.

G. Gary Tyack, Franklin County Prosecuting Attorney, and Nickole K. Iula,

Assistant Prosecuting Attorney, for appellee.

_________________

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