State ex rel. Sands v. Court of Common Pleas (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Sands v. Court of Common Pleas, Slip Opinion No. 2018-Ohio-4245.]
NOTICE
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2018-OHIO-4245THE STATE EX REL. SANDS, APPELLANT, v. COURT OF COMMON PLEAS JUDGE,
APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Sands v. Court of Common Pleas, Slip Opinion
No. 2018-Ohio-4245.]
Mandamus—Appellant not entitled to extraordinary relief in mandamus because
he failed to identify the alleged duty he sought to enforece and he had an
adequate remedy by way of appeal—Court of appeals’ dismissal affirmed.
(No. 2017-1700—Submitted April 10, 2018—Decided October 23, 2018.)
APPEAL from the Court of Appeals for Lake County,
No. 2017-L-079, 2017-Ohio-8532.
________________
Per Curiam.
{¶ 1} Appellant, Joseph A. Sands, appeals the decision of the Eleventh
District Court of Appeals dismissing his complaint for a writ of mandamus against
SUPREME COURT OF OHIO
the Lake County Court of Common Pleas. For the reasons set forth below, we deny
Sands’s motion for oral argument and affirm the judgment of the court of appeals.
Background
{¶ 2} Sands was convicted in the Lake County Common Pleas Court on
three counts of conspiracy to commit aggravated murder, two counts of conspiracy
to commit aggravated arson, and one count of engaging in a pattern of corrupt
activity. State v. Sands, 11th Dist. Lake No. 2007-L-003, 2008-Ohio-6981, ¶ 23.
The trial court merged the conspiracy counts and sentenced Sands to two ten-year
prison terms, to be served consecutively. The court of appeals affirmed. We denied
Sands’s motion to file a delayed appeal. 127 Ohio St.3d 1443, 2010-Ohio-5762,
937 N.E.2d 1034.
{¶ 3} On June 19, 2017, Sands commenced the present action for a writ of
mandamus against the Lake County Common Pleas Court. The complaint provided
a lengthy procedural background and raised a host of objections to his convictions
and sentences (discussed below) but requested no specific mandamus relief. On
August 11, 2017, Judge Vincent A. Culotta, on behalf of the Lake County Common
Pleas Court, filed a motion to dismiss or, in the alternative, for summary judgment.
{¶ 4} On November 13, 2017, the court of appeals granted the motion to
dismiss for failure to state a claim in mandamus. The court of appeals gave two
reasons for dismissing the complaint: first, the complaint did not request any relief
and second, mandamus was unavailable because all the issues raised in the
complaint could have been raised on direct appeal from the convictions. 2017-
Ohio-8532, ¶ 8-9, 19.
{¶ 5} Sands timely appealed.
The motion for oral argument
{¶ 6} We have discretion whether to grant oral argument in an original
action. S.Ct.Prac.R. 17.02. In exercising that discretion, we consider whether the
case “involves a matter of great public importance, complex issues of law or fact,
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January Term, 2018
a substantial constitutional issue, or a conflict among courts of appeals.” State ex
rel. BF Goodrich Co., Specialty Chems. Div. v. Indus. Comm., 148 Ohio St.3d 212,
2016-Ohio-7988, 69 N.E.3d 728, ¶ 23. None of those factors is present in this case.
Sands merely asserts that oral argument would help to avoid confusion regarding
the relief he is seeking. We deny the request for oral argument.
The merits of the appeal
{¶ 7} To be entitled to a writ of mandamus, a party 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. “In order for a court to dismiss
a [mandamus] complaint under Civ.R. 12(B)(6) for failure to state a claim upon
which relief can be granted, it must appear beyond doubt that [the relator] could
prove no set of facts warranting relief, after all factual allegations of the complaint
are presumed true, and all reasonable inferences are made in [the relator’s] favor.”
State ex rel. Natl. Elec. Contrs. Assn. v. Bur. of Emp. Servs., 83 Ohio St.3d 179,
181, 699 N.E.2d 64 (1998).
{¶ 8} The “unsupported conclusions of a complaint are not considered
admitted and are not sufficient to withstand a motion to dismiss.” State ex rel.
Seikbert v. Wilkinson, 69 Ohio St.3d 489, 490, 633 N.E.2d 1128 (1994). The failure
to identify the source of the alleged duty in a mandamus action is grounds for
dismissal. State ex rel. Fain v. Summit Cty. Adult Probation Dept., 71 Ohio St.3d
658, 659, 646 N.E.2d 1113 (1995) (upholding dismissal of complaint alleging that
the county probation department had a clear legal duty to correct information in a
presentence-investigation report without identifying the source of the alleged duty).
In this case, Sands provided less information than did the Fain complaint: Sands
did not even identify the alleged duty he sought to enforce, much less the legal
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SUPREME COURT OF OHIO
authority creating that duty. The court of appeals correctly dismissed the
complaint.
{¶ 9} Moreover, the specific allegations in the complaint fail to state a claim
in mandamus. Sands challenges his convictions and sentences on the grounds that
 the indictment was defective,
 there was insufficient evidence to convict him of a pattern of corrupt activity,
 the time frame for the actions underlying his conviction for engaging in a
pattern of corrupt activity was insufficient to support the charge,
 he cannot be convicted of both conspiracy and engaging in a pattern of corrupt
activity, as a matter of law,
 he was improperly extradited to Ohio,
 the trial judge failed to make the required factual findings before imposing
consecutive sentences, and
 the judgment entry was defective because it renumbered the counts from how
they appeared in the indictment.
{¶ 10} With respect to all these allegations, mandamus will not lie because
Sands had an adequate legal remedy by way of direct appeal from his criminal
convictions. See State ex rel. Hamilton v. Brunner, 105 Ohio St.3d 304, 2005-
Ohio-1735, 825 N.E.2d 607, ¶ 6 (mandamus unavailable to challenge a defective
indictment); State ex rel. Thomas v. Franklin Cty. Court of Common Pleas, 141
Ohio St.3d 547, 2015-Ohio-474, 26 N.E.3d 810, ¶ 4 (mandamus unavailable to
challenge sufficiency of the evidence); State ex rel. Thomas v. Richard, 149 Ohio
St.3d 712, 2017-Ohio-1343, 77 N.E.3d 962, ¶ 8 (holding that improper extradition
may not be attacked collaterally); State ex rel. Ridenour v. O’Connell, 147 Ohio
St.3d 351, 2016-Ohio-7368, 65 N.E.3d 742, ¶ 3 (improper imposition of
consecutive sentences and other sentencing errors “are generally not remediable by
extraordinary writ”).
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January Term, 2018
{¶ 11} Finally, Sands suggests that the trial court failed to dispose of all
charges against him in a single document, in violation of Crim.R. 32(C). But his
complaint does not identify which charge or charges the trial court supposedly
failed to resolve in the sentencing entry, and he did not attach the judgment entry
or entries to the complaint. He has therefore failed to plead sufficient facts to state
a claim for mandamus relief. See State ex rel. Hickman v. Capots, 45 Ohio St.3d
324, 544 N.E.2d 639 (1989) (dismissing mandamus complaint when inmate failed
to plead sufficient facts to show that dismissal of state charges removed all support
for the parole revocation under which he was confined).
{¶ 12} The court of appeals correctly dismissed the complaint, and we
affirm.
Judgment affirmed.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, DEWINE,
and DEGENARO, JJ., concur.
_________________
Joseph A. Sands, pro se.
Charles E. Coulson, Lake County Prosecuting Attorney, and Michael L.
DeLeone, Assistant Prosecuting Attorney, for respondent.
_________________
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