State ex rel. Hilliard v. Russo , 2016 Ohio 594 ( 2016 )

[Cite as State ex rel. Hilliard v. Russo, 2016-Ohio-594.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103466
STATE OF OHIO, EX REL.
RUDOLPH HILLIARD
RELATOR
vs.
HONORABLE JUDGE JOSEPH D. RUSSO
RESPONDENT
JUDGMENT:
WRIT DENIED
Writ of Mandamus
Motion No. 489327
Order No. 492547
RELEASE DATE: February 17, 2016
FOR RELATOR
Rudolph Hilliard, pro se
Inmate No. 601-920
Trumbull Correctional Institution
P.O. Box 901
Leavittsburg, Ohio 44430
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., A.J.:
{¶1} On September 2, 2015, the relator, Rudolph Hilliard, commenced this mandamus
action against the respondent, Judge Joseph D. Russo, to compel the judge to issue findings of
fact and conclusions of law for a postconviction relief petition that Hilliard had filed in the
underlying case, State v. Hilliard, Cuyahoga C.P. No. CR-10-535768-A. On September 18,
2015, the respondent moved for summary judgment because there is no duty to issue findings of
fact and conclusions of law for an untimely postconviction relief petition. Hilliard filed his
brief in opposition on October 2, 2015. For the following reasons, this court grants the
respondent’s dispositive motion and denies the application for a writ of mandamus.
{¶2} In the underlying case in April 2011, Hilliard pled guilty to aggravated murder and
kidnapping, and on May 2, 2011, the judge sentenced him to 25 years to life for the murder and
seven years concurrent for kidnapping. The underlying case was dormant for approximately
three-and one-half years, until Hilliard moved for a delayed appeal on November 18, 2014.
This court granted that motion on December 11, 2014, State v. Hilliard, 8th Dist. Cuyahoga No.
102214, and the record was filed on January 27, 2015.1
{¶3} On July 7, 2015, Hilliard filed his postconviction relief petition, and the
respondent judge summarily denied it on July 17, 2015, without findings of fact and conclusions
of law. On July 28, 2015, Hilliard moved for findings of fact and conclusions of law, and the
respondent judge summarily denied that motion on August 4, 2015. Hilliard then commenced
this mandamus action.
{¶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, such as appeal. State ex rel.
Ney v. Niehaus, 33 Ohio St. 3d 118, 515 N.E.2d 914 (1987); and State ex rel. Pressley v. Indus.
Comm. of Ohio, 11 Ohio St. 2d 141, 228 N.E.2d 631 (1967), paragraph three of the syllabus.
Moreover, mandamus is an extraordinary remedy that 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,
50 Ohio St. 2d 165, 364 N.E.2d 1 (1977); and State ex rel. Connole v. Cleveland Bd. of Edn., 87
Ohio App. 3d 43, 621 N.E.2d 850 (8th Dist.1993).
{¶5} R.C. 2953.21 controls postconviction relief petitions. At the pertinent time,
subsection (A)(2) provided that a postconviction relief petition “shall be filed no later that one
hundred eighty days after the date on which the trial transcript is filed in the court of appeals in
the direct appeal of conviction * * *. If no appeal is taken, * * * the petition shall be filed no
later than one hundred eighty days after the expiration of the time for filing the appeal.”2
Subsection (C) directs the court to consider a petition that is timely filed. It also provides that
if the court dismisses the petition, it shall make findings of fact and conclusions of law with
respect to such dismissal. Subsection (G) reiterates the duty for filing findings of fact and
conclusions of law regardless of whether the court denies or grants the petition.
{¶6} Findings of fact and conclusions of law are mandatory, and a judgment entry filed
without them “is incomplete and it thus does not commence the running of the time period for
filing an appeal therefrom.” State v. Mapson, 1 Ohio St. 3d 217, 218, 438 N.E.2d 910 (1982).
Mandamus will lie to compel a trial court to issue findings of fact and conclusions of law for a
1
This court affirmed on August 6, 2015.
2
This version of the statute was effective July 11, 2006. An amendment, effective March 23, 2015, expanded the
time for filing to 365 days.
postconviction relief petition. State ex rel. Brown v. Court of Common Pleas of Coshocton
Cty., 23 Ohio St. 3d 46, 491 N.E.2d 303 (1986).
{¶7} However, there is no duty to issue findings of fact and conclusions of law for an
untimely petition. R.C. 2953.23(A) provides that “a court may not entertain a petition filed
after the expiration of the period prescribed in [R.C. 2953.21(A)] * * *.” The Supreme Court of
Ohio has affirmed this principle. State ex rel. Kimbrough v. Greene, 98 Ohio St. 3d 116,
2002-Ohio-7042, 781 N.E.2d 155, and State ex rel. James v. Coyne, 114 Ohio St. 3d 45,
2007-Ohio-2716, 867 N.E.2d 837.
{¶8} In the present case, Hilliard filed his postconviction relief petition over four years
after his conviction and sentence. However, it was filed within 180 days of the filing of the trial
transcript in his delayed appeal. Therefore, Hilliard argues that applying the plain language of
R.C. 2953.21(A)(2), his postconviction relief petition is timely and the respondent judge must
issue findings of fact and conclusions of law. However, this court has held that a delayed
appeal does not toll the time for filing a postconviction relief petition. If a convicted individual
does not file a timely appeal pursuant to App.R. 4, then the time for filing a postconviction relief
petition expires 180 days later. A petition filed after that time is untimely, even if an appellate
court allows a delayed appeal and the petition is filed within the 180 days after the filing of the
transcript. To hold otherwise would be to render the statutory time limitations meaningless.
State v. Fields, 136 Ohio App. 3d 393, 736 N.E.2d 933 (8th Dist.1999); and State v. Cobb, 8th
Dist. Cuyahoga No. 80265, 2002-Ohio-2138. Therefore, Hilliard’s postconviction relief
petition was untimely, and the respondent judge had no duty to issue findings of fact and
conclusions of law.
{¶9} Accordingly, this court grants the respondent’s motion for summary judgment and
denies the application for a writ of mandamus. Relator to pay costs. This court directs the
clerk of courts to serve all parties notice of this judgment and its date of entry upon the journal as
required by Civ.R. 58(B).
{¶10} Writ denied.
LARRY A. JONES, SR., ADMINISTRATIVE JUDGE
KATHLEEN ANN KEOUGH, J., and
TIM McCORMACK, J., CONCUR