State ex rel. Favors v. Cuyahoga Cty. Court of Common Pleas

[Cite as State ex rel. Favors v. Cuyahoga Cty. Court of Common Pleas, 2012-Ohio-1648.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97710
STATE OF OHIO, EX REL.,
GLENN FAVORS
RELATOR
vs.
CUYAHOGA COUNTY COURT
OF COMMON PLEAS
RESPONDENT
JUDGMENT:
COMPLAINT DISMISSED
Writ of Mandamus
Motion No. 451212
Order No. 453523
RELEASE DATE: April 6, 2012
FOR RELATOR
Glenn Favors, pro se
Inmate No. A593-726
Richland Correctional Institution
P. O. Box 8107
Mansfield, Ohio 44901
ATTORNEYS FOR RESPONDENT
William D. Mason
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{¶1} Relator, Glenn Favors, is the defendant in State v. Favors, Cuyahoga County
Court of Common Pleas Case No. CR-540083. Favors pled guilty to attempted robbery,
R.C. 2923.02 and 2911.02(A)(2), a third degree felony. In an entry received for filing
on November 29, 2010, the court of common pleas sentenced him to three years in prison.
{¶2} In this action in mandamus, Favors requests that this court compel respondent
court of common pleas to reduce his sentence to 24 months. Favors argues that R.C.
2929.14(A)(3)(b) requires the reduction of his sentence. R.C. 2929.14(A)(3)(b)
provides: “For a felony of the third degree that is not an offense for which division
(A)(3)(a) of this section applies, the prison term shall be nine, twelve, eighteen,
twenty-four, thirty, or thirty-six months.” R.C. 2929.14(A)(3)(a) pertains to other crimes
as well as multiple robberies or burglaries.
{¶3} Favors observes that his three-year term was in the middle of the old statutory
range. He contends, therefore, that his sentence should now be reduced to the middle of
the new statutory range — that is, 24 months.
{¶4} R.C. 2929.14(A)(3)(b) was added as part of 2011 Am.Sub.H.B. No. 86. The
effective date of Am.Sub.H.B. No. 86 was September 30, 2011.
{¶5} The trial court issued an order sentencing Favors on November 29, 2010. In
cases regarding provisions amended by Am.Sub.H.B. 86, this court has held that the
amendments do not apply if the defendant was sentenced before September 30, 2011, the
effective date of Am.Sub.H.B. 86. See, e.g., State v. Lindsey, 8th Dist. No. 96601,
2012-Ohio-804, ¶ 34, fn.1; State v. Calliens, 8th Dist. No. 97034, 2012-Ohio-703, ¶ 28;
State v. Ward, 8th Dist. No. 97219, 2012-Ohio-1199, ¶ 5. See also State v. Fields, 5th
Dist. No. CT11-0037, 2011-Ohio-6044, ¶ 2 (affirming the denial of defendant-appellant’s
“motion for sentence modification, claiming his sentence should be reduced pursuant to
H.B. No. 86”).
{¶6} “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.” State
ex rel. Goodgame v. Russo, 8th Dist. No. 97347, 2012-Ohio-92, ¶ 2, fn.1.
{¶7} The cases cited above all indicate that amendments in Am.Sub.H.B. No. 86
do not apply to cases in which the trial court sentenced the defendant prior to the
September 30, 2011 effective date. Favors was sentenced before the effective date of
Am.Sub.H.B. No. 86. We must hold, therefore, that he does not have a clear legal right
to a reduction in sentence, and respondent court does not have a clear legal duty to reduce
his sentence. As a consequence, we deny his request for relief in mandamus.
{¶8} Accordingly, respondent’s motion to dismiss is granted. Relator to pay
costs. The clerk is directed to serve upon the parties notice of this judgment and its date
of entry upon the journal. Civ.R. 58(B).
{¶9} Complaint dismissed.
MARY J. BOYLE, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
EILEEN A. GALLAGHER, J., CONCUR