State ex rel. Tobias v. Fuerst

[Cite as State ex rel. Tobias v. Fuerst, 2022-Ohio-3556.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE EX REL. JEFFREY TOBIAS, :
Relator, :
v. : No. 111836
JUDGE NANCY FUERST, :
Respondent. :
JOURNAL ENTRY AND OPINION
JUDGMENT: WRIT DISMISSED
DATED: October 3, 2022
Writ of Mandamus
Motion No. 557585
Order No. 558314
Appearances:
Jeffrey Tobias, pro se.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and James E. Moss, Assistant Prosecuting
Attorney, for respondent.
CORNELIUS J. O’SULLIVAN, JR., J.:
On August 12, 2022, the relator, Jeffrey Tobias, commenced this
mandamus action against the respondent, Judge Nancy Fuerst, to compel the judge
to grant him the requested jail-time credit, or in the alternative, provide findings of
fact and conclusions of law for the denial of the jail-time credit in the underlying
case, State v. Tobias, Cuyahoga C.P. No. CR-92-280249-ZA. On August 24, 2022,
the respondent judge filed a motion to dismiss. Tobias never filed a response. For
the following reasons, this court grants the motion to dismiss and dismisses the
application for a writ of mandamus.
In early 1992, Tobias was arrested and indicted on multiple counts,
including aggravated murder and aggravated burglary. He alleges that he spent
178 days in jail during this time before posting bond. He then went to New York
where he was tried and convicted on unrelated murder and robbery charges and was
sentenced to 25 years to life. He further alleges that he waited 841 days before being
extradited back to Ohio for trial in the underlying case. He also claims that he spent
another 172 days awaiting that trial until September 21, 1995, at which time he pled
guilty to voluntary manslaughter with a firearm specification and attempted
aggravated murder. The trial court sentenced him to three years on the firearm
specification consecutive to 10 to 25 years on each of the two convictions. Those
were to be served concurrently to each other but consecutive to the New York
sentence. He was then returned to New York.
On December 26, 2017, Tobias finished serving his New York
sentence, and he was extradited back to Ohio to serve his sentence in the underlying
case. He claims that he spent 17 days in the Cuyahoga County Jail before being sent
to prison. Thus, he claims he is entitled to 1,207 days of jail-time credit, but only
received four days.
On May 27, 2022, Tobias filed a motion for jail-time credit, which the
respondent judge denied on June 1, 2022. Tobias appealed that decision on
June 30, 2022, State v. Tobias, 8th Dist. Cuyahoga No. 111673. Tobias then
commenced this mandamus action.
The requisites for mandamus are well established: the relator must
show by clear and convincing evidence (1) a clear legal right to the requested relief,
(2) the respondent has 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.
Daggett v. Gessaman, 34 Ohio St.2d 55, 295 N.E.2d 659 (1973); 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, 8th Dist. Cuyahoga No. 67787, 1994 Ohio App. LEXIS 6227 (Sept. 26,
1994). 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. 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); State ex rel. Shafer v. Ohio Turnpike Comm., 159 Ohio St. 581, 113
N.E.2d 14 (1953).
In State ex rel. Sands v. Culotta, 165 Ohio St.3d 172, 2021-Ohio-1137,
176 N.E.3d 735, ¶ 12, the Supreme Court of Ohio ruled: “Alleged errors regarding an
award of jail-time credit are not cognizable in mandamus, because the inmate may
raise that issue * * * in a postsentence motion to correct jail-time credit pursuant to
R.C. 2929.19(B)(2)(g)(iii). Because there is an adequate remedy in the ordinary
course of the law, a writ of mandamus against the sentencing judge will not lie.” In
the present case, Tobias has exercised his adequate remedy at law by moving the
trial court for jail-time credit and then appealing the denial of that motion. Thus,
mandamus will not lie.
Moreover, there is no duty to issue findings of fact and conclusions of
law for a motion for jail-time credit. State ex rel. McMichael v. Saffold, 8th Dist.
Cuyahoga No. 99626, 2013-Ohio-1568. Additionally, the failure to provide findings
of fact and conclusions of law is remedied through appeal. State ex rel. Ross v. State,
102 Ohio St.3d 73, 2004-Ohio-1827, 806 N.E.2d 533, and State ex rel. Brady v.
Russo, 8th Dist. Cuyahoga No. 89552, 2007-Ohio-3277Relator 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; State ex rel. Hunter v. Cuyahoga Cty. Court of Common Pleas, 88 Ohio
St.3d 176, 2000-Ohio-285, 724 N.E.2d 420; and Hazel v. Knab, 130 Ohio St.3d 22,
2011-Ohio-4608, 955 N.E.2d 378 — the defect may not be cured by subsequent
filings.
Accordingly, this court grants the respondent’s motion to dismiss and
dismisses the application for a writ of mandamus. Relator to pay costs. This court
directs the clerk of courts to serve all parties notice of the judgment and its date of
entry upon the journal as required by Civ.R. 58(B).
Writ dismissed.
CORNELIUS J. O’SULLIVAN, JR., JUDGE
SEAN C. GALLAGHER, A.J., and
FRANK DANIEL CELEBREZZE, III, J., CONCUR