State ex rel. Jones v. Friedman , 2011 Ohio 3478 ( 2011 )

[Cite as State ex rel. Jones v. Friedman, 2011-Ohio-3478.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96498
STATE OF OHIO, EX REL.,
LEE JONES
RELATOR
vs.
JUDGE STUART A. FRIEDMAN AND WARDEN
TERRY TIBBALS
RESPONDENTS
JUDGMENT:
WRIT DENIED
Writ of Mandamus
Motion Nos. 443477 and 443307
Order No. 445742
RELEASE DATE: July 8, 2011
FOR RELATOR
Lee Jones
Inmate #560-986
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901
ATTORNEYS FOR RESPONDENT
For Judge Stuart A. Friedman
William D. Mason
Cuyahoga County Prosecutor
James E. Moss
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
For Warden Terry Tibbals
Mike DeWine
Attorney General
Peter L. Jamison
Assistant Attorney General
Criminal Justice Section
150 E. Gay Street, 16th Floor
Columbus, Ohio 43215
MARY EILEEN KILBANE, A.J.:
{¶ 1} On March 8, 2011, the relator, Lee Jones, commenced this mandamus action
against the respondents, Judge Stuart Friedman and Warden Terry Tibbals, to compel them to
1
return Jones to the Cuyahoga County Common Pleas Court so that postrelease controls may be
properly imposed in the underlying case, State v. Lee Jones, Cuyahoga County Common Pleas
Court Case No. CR-504454. On March 31, 2011, Judge Friedman filed a motion for
summary judgment, and Warden Tibbals filed a motion to dismiss on April 6, 2011. Jones
never filed a response to either of the motions. For the following reasons, this court grants
the respondents’ dispositive motions and denies the application for a writ of mandamus.
1 In his complaint, Jones named Judge Stuart Freeman as a respondent. This court will use
the proper spelling of the judge’s name throughout the opinion.
{¶ 2} In the underlying case in late 2008, Jones pleaded guilty to two counts of
kidnapping and two counts of rape, and the trial court imposed a sentence of 20 years. The
trial judge also included the following in the sentencing entry: “Post release control is part of
this prison sentence for 5 years mandatory for the above felony(s) under R.C. 2967.28.” This
sentencing entry did not include language to the effect that if Jones violated the terms of
postrelease control, the parole board may impose as part of the sentence a prison term of up to
one-half of the originally stated prison term.
{¶ 3} The docket of the underlying case shows that Jones did not appeal his
conviction and sentence, but on October 8, 2010, he filed a motion to correct legally
incomplete sentence. On November 18, 2010, the trial court overruled this motion because a
review of the sentencing transcript established that the court fully advised Jones on
postrelease control including the consequences should he fail to comply. Jones appealed this
ruling in State v. Jones, Cuyahoga County Court of Appeals Case No. 96126. However, this
court dismissed the appeal on February 22, 2011, for failure to file a brief. Jones then
commenced this mandamus action to compel the proper imposition of postrelease controls.
{¶ 4} The requisites for mandamus are well established: (1) the relator must have a
clear legal right to the requested relief, (2) the respondent must have a clear legal duty to
perform the requested relief and (3) there must be no adequate remedy at law. Additionally,
although mandamus may be used to compel a court to exercise judgment or to discharge a
function, it may not control judicial discretion, even if that discretion is grossly abused. State
ex rel. Ney v. Niehaus (1987), 33 Ohio St.3d 118, 515 N.E.2d 914. Furthermore, mandamus
is not a substitute for appeal. State ex rel. Keenan v. Calabrese (1994), 69 Ohio St.3d 176,
631 N.E.2d 119; State ex rel. Daggett v. Gessaman (1973), 34 Ohio St.2d 55, 295 N.E.2d 659;
and State ex rel. Pressley v. Indus. Comm. of Ohio (1967), 11 Ohio St.2d 141, 228 N.E.2d
631, paragraph three of the syllabus. Thus, mandamus does not lie to correct errors and
procedural irregularities in the course of a case. State ex rel. Jerninghan v. Gaughan (Sept.
26, 1994), Cuyahoga App. No. 67787. Furthermore, if the relator had an adequate remedy,
regardless of whether it was used, relief in mandamus is precluded. State ex rel. Tran v.
McGrath, 78 Ohio St.3d 45, 1997-Ohio-245, 676 N.E.2d 108 and State ex rel. Boardwalk
Shopping Ctr., Inc. v. Court of Appeals for Cuyahoga Cty (1990), 56 Ohio St.3d 33, 564
N.E.2d 86. Moreover, mandamus is an extraordinary remedy which is to be exercised with
caution and only when the right is clear. It should not issue in doubtful cases. State ex rel.
Taylor v. Glasser (1977), 50 Ohio St.2d 165, 364 N.E.2d 1; State ex rel. Shafer v. Ohio
Turnpike Comm. (1953), 159 Ohio St. 581, 113 N.E.2d 14; State ex rel. Connole v. Cleveland
Bd. of Edn. (1993), 87 Ohio App.3d 43, 621 N.E.2d 850; and State ex rel. Dayton-Oakwood
Press v. Dissinger (1940), 32 Ohio Law Abs. 308.
{¶ 5} Jones’s claim to compel a new sentencing hearing is not well founded. The
Supreme Court of Ohio has clarified that incomplete references or explanations of postrelease
control are sentencing errors which are remedied by appeal and not by extraordinary writ.
State ex rel. Pruitt v. Cuyahoga Cty. Court of Common Pleas, 125 Ohio St.3d 402,
2010-Ohio-1808, 928 N.E.2d 722, held that because the sentencing entry sufficiently included
language that postrelease control was part of the sentence, Pruitt had sufficient notice to raise
any claimed errors on appeal rather than by a writ. In State ex rel. Thomas v. DeWine, 127
Ohio St.3d 214, 2010-Ohio-4984, 938 N.E.2d 328, the Supreme Court of Ohio ruled that an
extraordinary writ would not lie to compel a resentencing in order to provide the defendant
with oral notification at his sentencing of the mandatory five-year postrelease control term.
The Court continued that the defendant had an adequate remedy by direct appeal to raise his
claim that he did not receive proper notification about postrelease control. See, also,
Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78; State ex rel. Davis
v. Cuyahoga Cty. Court of Common Pleas, 127 Ohio St.3d 29, 2010-Ohio-4728, 936 N.E.2d
41; and Patterson v. Ohio Adult Parole Auth., Richland App. No. 08-CA-33, 2008-Ohio-2620.
{¶ 6} Moreover, the Supreme Court of Ohio revisited the issues involved in imposing
proper postrelease controls. In State v. Fischer, 127 Ohio St.3d 92, 2010-Ohio-6238, 942
N.E.2d 332, the court modified State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868
N.E.2d 961, to hold that if postrelease controls are not properly imposed, then only that
portion of the sentence dealing with postrelease control is void and that the new sentencing
hearing is limited to proper imposition of postrelease control. Paragraph two of the syllabus.
In State ex rel. Tucker v. Forchione, 128 Ohio St.3d 298, 2010-Ohio-6291, 943 N.E.2d
1006, ¶1, the Supreme Court of Ohio ruled that because Tucker’s February 1999 sentencing
entry “included language that postrelease control was part of his sentence so as to afford him
notice to raise any claimed error on appeal rather than by extraordinary writ,” Tucker was not
entitled to mandamus relief to correct postrelease control sentencing errors. Rather, he had
an adequate remedy at law through appeal.
{¶ 7} Furthermore, this court notes that Jones has endeavored to pursue his adequate
remedies at law by moving the trial court to correct any error and by appealing the denial of
that motion. That Jones allowed his appeal to be dismissed for failure to file a brief does
not render the remedy unavailable for purposes of mandamus.
{¶ 8} Jones also did not comply with R.C. 2969.25(C), which requires that an inmate
file a certified statement from his prison cashier setting forth the balance in his private account
for each of the preceding six months. This also is sufficient reason to deny the mandamus,
deny indigency status, and assess costs against the relator. State ex rel. Pamer v. Collier, 108
Ohio St.3d 492, 2006-Ohio-1507, 844 N.E.2d 842 and State ex rel. Hunter v. Cuyahoga Cty.
Court of Common Pleas, 88 Ohio St.3d 176, 2000-Ohio-285, 724 N.E.2d 420.
{¶ 9} Accordingly, this court grants the respondents’s dispositive motions and denies
the application for a writ of mandamus. Relator to pay costs. This court directs the Clerk
of the Eighth District Court of Appeals to serve upon the parties notice of this judgment and
its date of entry upon the journal. Civ.R. 58(B).
Writ denied.
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
PATRICIA A. BLACKMON, J. and
KATHLEEN ANN KEOUGH, J., CONCUR