Osco v. Pittman , 2019 Ohio 1410 ( 2019 )

[Cite as Osco v. Pittman, 2019-Ohio-1410.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
KODY M. OSCO, : PER CURIAM OPINION
Relator, :
CASE NO. 2018-P-0094
- vs - :
LAURIE J. PITTMAN, :
Respondent. :
Original Action for Writ of Mandamus.
Judgment: Petition denied.
Kody M. Osco, pro se, PID: A640-807, Warren Correctional Institution, 5787 State
Route 63, Lebanon, OH 45036 (Relator).
Victor V. Vigluicci, Portage County Prosecutor, 241 South Chestnut Street, Ravenna,
OH 44266 (For Respondent).
PER CURIAM.
{¶1} The matter is before the court on relator, Kody M. Osco’s, petition for writ
of mandamus filed November 27, 2018. For the reasons that follow, the petition is
dismissed.
{¶2} We understand relator’s petition to involve Case Nos. 2012-CR-00702 and
2012-CR-00584. In the former, relator pled guilty to one count of Burglary, a felony of
the second degree, in violation of R.C. 2911.12(A)(2)(D). In the latter, relator pled guilty
to one count of Felonious Assault, a felony of the second degree, in violation of R.C.
2903.11(A)(2). In 2013, relator was sentenced to seven years imprisonment for each
count to be served concurrently.
{¶3} Subsequently, relator made numerous motions, all of which were denied
without hearing. In 2015, he appealed to this court; we ultimately affirmed the lower
court’s decision. See State v. Osco, 11th Dist. Portage No. 2014-P-0009, 2015-Ohio-
44. Relator then filed numerous additional motions in the court of common pleas, which
were also denied without hearing. Relator now seeks this writ of mandamus to compel
the court of common pleas to respond to his June 18, 2018 motion in a judgment that is
both final and appealable.
{¶4} R.C. 2731.01 provides, “Mandamus is a writ, issued in the name of the
state to an inferior tribunal, a corporation, board, or person, commanding the
performance of an act which the law specially enjoins as a duty resulting from an office,
trust, or station.” “ʻFor a writ of mandamus to issue, [1.] the relator must establish a
clear legal right to the relief prayed for; [2.] the respondent must have a clear legal duty
to perform the act; and [3.] the relator must have no plain and adequate remedy in the
ordinary course of the law.’” State ex rel. McKinney v. McKay, 11th Dist. Trumbull No.
2011-T-0039, 2011-Ohio-3756, ¶16, quoting State ex rel. Widmer v. Mohney, 11th Dist.
Geauga No. 2007-G-2776, 2008-Ohio-1028, ¶31.
{¶5} Initially we note relator’s petition has multiple procedural failings. R.C.
2731.04 provides, in pertinent part, that “[a]pplication for the writ of mandamus must be
by petition, in the name of the state on the relation of the person applying, and verified
by affidavit.” First, relator does not refer to his filing as a “petition,” but, rather, simply as
a “Mandamus,” in violation of R.C. 2731.04. However, in the interest of justice, we
construe it as a petition for a writ of mandamus. See State ex rel. Allah-U-Akbar v.
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Ashtabula Cty. Court of Common Pleas, 11th Dist. Ashtabula No. 2017-A-0035, 2017-
Ohio-8625, ¶12.
{¶6} Relator has also failed to caption his petition “in the name of the state on
the relation of the person applying” as required by R.C. 2731.04, but instead has
captioned his petition simply “MANDAMUS.” The failure to properly caption a petition
for a writ of mandamus warrants dismissal. See, e.g., Maloney v. Court of Common
Pleas of Allen Cty., 173 Ohio St. 226 (1962).
{¶7} Regardless of the procedural failures, relator’s petition also fails on the
merits. Relator asserts that Judge Laurie J. Pittman, the named respondent, has failed
to rule on his June 18, 2018 motion to vacate. The docket, however, clearly shows the
court responded to his June 18, 2018 motion on June 22, 2018, with a judgment entry
denying his motion without hearing.
{¶8} Nevertheless, on October 4, 2018, relator asked the court of common
pleas to rule on his June 18, 2018 motion to vacate. In the instant petition, relator
acknowledges the court responded to his October 4, 2018 request on October 11, 2018
with a Judgment Entry stating in its entirety, “The Defendant’s Motion is denied without
hearing.”
{¶9} Relator now asserts that the October 11, 2018 response is not a final
appealable order because it merely states the motion is dismissed without hearing.
Presumably relator seeks an explanation as to why his motion was dismissed, though
this is not expressly requested. Instead, he asserts broadly, and in conclusory fashion,
that the court’s order was not a final appealable order. He requests that this court
compel respondent to (1) issue a final appealable order to his June 18, 2018 motion or
(2) issue a final appealable order for the October 11, 2018 Judgment Entry.
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{¶10} Regarding the former, we find relator’s first prayer for relief to be a nullity
as the record clearly reflects that the lower court responded to relator’s June 18, 2018
motion on June 22, 2018 in a judgment entry denying his motion without hearing. To
the extent relator asserts this order was insufficient to overrule his motion, we disagree.
{¶11} Generally, Crim.R. 35(C) requires that “[t]he trial court shall file its ruling
upon a petition for post-conviction relief, including findings of fact and conclusions of law
if required by law, not later than one hundred eighty days after the petition is filed.”
However, the court “has no duty to issue findings of fact and conclusions of law on
successive or untimely petitions for post-conviction relief.” State ex rel. Bunting v. Haas,
102 Ohio St. 3d 161, 2004-Ohio-2055, ¶11. See also, State ex rel. Reynolds v.
Basinger, 99 Ohio St. 3d 303, 2003-Ohio-3631.
{¶12} As we ruled in relator’s 2015 appeal in this court, relator’s motions for
postconviction relief have not been timely filed and as such, “the trial court had no
obligation to issue findings of fact and conclusions of law in support of its decision.”
Osco, supra, at ¶17. Therefore, the lower court’s June 22, 2018 and October 11, 2018
judgment entries are sufficient without including findings of fact and conclusions of law.
{¶13} For the foregoing reasons, relator’s petition is fatally defective for failing to
comply with necessary requirements of R.C. 2731.04. And, even if relator fully
complied with the statutory requirements, he cannot establish a clear legal right to the
remedy sought in the underlying petition.
{¶14} Accordingly, relator’s petition is denied.
CYNTHIA WESTCOTT RICE, J., TIMOTHY P. CANNON, J., MATT LYNCH, J., concur.
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