State ex rel. Goodgame v. Russo

[Cite as State ex rel. Goodgame v. Russo, 2012-Ohio-92.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97347
STATE OF OHIO, EX REL.
JIMMIE GOODGAME
RELATOR
vs.
NANCY RUSSO, JUDGE FOR CUYAHOGA CTY.
COMMON PLEAS COURT
RESPONDENT
JUDGMENT:
WRIT DENIED
Writ of Mandamus
Motion No. 448463
Order No. 451076
RELEASE DATE: January 11, 2012
ATTORNEY FOR RELATOR
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James R. Willis
420 Lakeside Place
323 Lakeside Avenue, NW
Cleveland, Ohio 44113
ATTORNEYS FOR RESPONDENT
William D. Mason
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, J.:
{¶ 1} On September 26, 2011, the relator, Jimmie Goodgame, commenced this
mandamus action against the respondent, Judge Nancy Russo, to compel the judge (1) “to
implement a Hearing on whether the Relator can be held without bail, and * * * set a
Hearing and make findings mandated by [Criminal Rule 12.]” (Prayer for relief;
capitalization in original) and (2) to fully observe and implement relator’s right to counsel
in the underlying cases, State v. Goodgame, Cuyahoga County Common Pleas Court Case
Nos. CR-552557 and CR-553130. Goodgame alleged that when he was arraigned on the
two underlying cases, his attorney, James Willis, was temporarily out of town and that the
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respondent judge assigned other counsel, and that when Willis returned he was not able to
contact Goodgame. Additionally, although the respondent had initially set bond, she
revoked that bond on the grounds that he had missed a pretrial. Goodgame asserted that
this denies his constitutional right to pretrial bail.
{¶ 2} On October 12, 2011, the respondent, through the Cuyahoga County
Prosecutor, moved for summary judgment, inter alia, on the grounds that there is no duty
or right enforceable in mandamus to hold a bond hearing or to observe a defendant’s right
to counsel. 1 Goodgame filed a brief in opposition on October 19, 2011. On
November 14, 2011, the respondent judge filed a “Notice of Judicial Action.”
Attached to this filing was a certified copy of an October 31, 2011 journal entry in which
the judge set Goodgame’s bond at $25,000. On November 21, 2011, Goodgame filed a
1The 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, 33 Ohio St.3d 118, 515 N.E.2d
914 (1987). Furthermore, mandamus is not a substitute for appeal. State ex rel. Keenan v.
Calabrese, 69 Ohio St.3d 176, 631 N.E.2d 119 (1994); State ex rel. Daggett v. Gessaman, 34 Ohio
St.2d 55, 295 N.E.2d 659 (1973); 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. Thus, mandamus does not lie to
correct errors and procedural irregularities in the course of a case. State ex rel. Jerninghan v.
Gaughan, 8 Dist. No. 67787 (Sept. 26, 1994). Moreover, mandamus is an extraordinary remedy
ht
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, 50 Ohio St.2d 165, 364 N.E.2d 1 (1977); State ex rel. Shafer
v. Ohio Turnpike Comm., 159 Ohio St. 581, 113 N.E.2d 14 (1953); State ex rel. Connole v. Cleveland
Bd. of Edn., 87 Ohio App.3d 43, 621 N.E.2d 850 (1993); and State ex rel. Dayton-Oakwood Press v.
Dissinger, 32 Ohio Law Abs. 308 (1940).
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response to the judge’s “Notice” in which he complained that the judge had revoked his
bond; thus, the mandamus claim was not moot. For the following reasons, this court
grants the judge’s motion for summary judgment.
{¶ 3} Both claims for mandamus are moot. A review of the docket in the
underlying cases shows that Willis has been representing Goodgame in both cases and has
even obtained a not guilty verdict in Case No. CR-552557. Similarly, the docket reflects
that the respondent judge has set bond for Goodgame several times and that Goodgame
has been released from jail for at least short periods of time. Admittedly, the judge has
revoked bail for various reasons, including failure to attend a pretrial, federal detainer,
violation of electronic home detention conditions, and efforts to reside outside of
Cuyahoga County. Nevertheless, the judge has provided the requested relief, setting
bond. Moreover, to the extent that Goodgame is arguing a denial of bond or excessive
bail, the proper remedy in Ohio is a writ of habeas corpus which has very different
pleading requirements than a writ of mandamus. Thus, this court declines to consider
this application for a writ of mandamus as a petition for habeas corpus. R.C. Chapter
2725; State ex rel. Pirman v. Money, 69 Ohio St.3d 591, 653 N.E.2d 26 (1994); and
Chari v. Vore, 91 Ohio St.3d 323, 744 N.E.2d 763 (2001).
{¶ 4} Accordingly, this court grants the respondent judge’s motion for summary
judgment and denies this application for a writ of mandamus. Relator to pay costs. The
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clerk is directed to serve upon the parties notice of this judgment and its date of entry
upon the journal. Civ.R. 58(B).
___________________________________________________
COLLEEN CONWAY COONEY, JUDGE
JAMES J. SWEENEY, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR