State ex rel. Davis v. Saffold

2014 Ohio 1954

Opinion

[Cite as State ex rel. Davis v. Saffold, 2014-Ohio-1954.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100990

STATE EX REL., ROBERT DAVIS RELATOR

vs.

JUDGE SHIRLEY STRICKLAND SAFFOLD RESPONDENT

JUDGMENT: WRIT DISMISSED

Writ of Mandamus Motion No. 473062 Order No. 474086

RELEASE DATE: May 6, 2014 RELATOR

Robert Davis, pro se No. A572-537 Grafton Reintegration Center 2500 S. Avon Belden Road Grafton, Ohio 44044

ATTORNEYS FOR RESPONDENT

Timothy J. McGinty Cuyahoga County Prosecutor By: James E. Moss Assistant County Prosecutor 9th Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, J.:

{¶1} On February 14, 2014, the relator, Robert Davis, commenced this

mandamus action to compel the respondent, Judge Shirley Strickland Saffold, to return

him to the trial court for execution of sentence in the underlying case, State v. Davis,

Cuyahoga C.P. No. CR-08-509762-A. On March 12, 2014, the respondent judge moved

to dismiss. On March 21, 2014, Davis filed a brief in opposition to the respondent’s

motion. For the following reasons, this court grants the motion to dismiss and dismisses

the application for a writ of mandamus.

{¶2} In the underlying case on July 20, 2009, Davis plead guilty to burglary, and

the judge sentenced him to five years of community control sanctions and warned him

that violating community control could result in an eight-year prison sentence. On August

27, 2009, the judge found that Davis had violated community control and imposed the

eight-year sentence. On appeal, this court ruled that the trial court had not properly

revoked the community control sanctions and reversed and remanded for further

proceedings. State v. Davis, 8th Dist. Cuyahoga No. 93959, 2010-Ohio-5126 (“Davis

I”).

{¶3} On July 26, 2011, the trial court ordered Davis’s original sentence into

execution, but did not explicitly say an eight-year prison sentence. The next day, the

trial judge issued a nunc pro tunc entry clarifying that as a result of Davis’s violation, he

is sentenced to eight years in prison. On appeal, Davis argued that the trial court

erroneously imposed an eight-year prison term, because the trial judge did not explicitly

state eight years. This court rejected the argument because it was clear that the judge was imposing the same sentence it had imposed in August 2009. State v. Davis, 8th

Dist. Cuyahoga No. 97227, 2012-Ohio-2499 (“Davis II”).

{¶4} This court granted Davis a delayed appeal to contest the July 27, 2011 nunc

pro tunc order. Davis argued that the July 27, 2011 order was an improper use of nunc

pro tunc because the trial judge never imposed an eight-year prison sentence. This court

ruled that Davis’s argument was barred by res judicata; he could have and should have

raised this issue in Davis II. Furthermore, it was clear that the judge was properly

imposing an eight-year sentence. This court concluded with the standard language:

“It is ordered that a special mandate be sent to the Cuyahoga County Court of Common

Pleas to carry this judgment into execution. The defendant’s conviction having been

affirmed, any bail pending appeal is terminated. Case remanded to the trial court for

execution.” State v Davis, 8th Dist. Cuyahoga No. 99376, 2013-Ohio-4905 (“Davis

III”).

{¶5} Davis seizes upon this standard language and now demands that he be

brought back to the trial court so that the sentence, can be executed. However, Davis is

already in prison serving the subject sentence, and the judgment has been carried into

execution. Returning him to the trial court for a pointless exercise would be elevating

form over substance.

{¶6} Moreover, in State ex rel. Davis v. Saffold, 8th Dist. Cuyahoga No. 100742,

2014-Ohio-307 (“Davis IV”), Davis raised this same issue that the trial court had to bring

him back to court for execution of sentence. This court denied the application for a writ

because the “appeal was not remanded to Judge Saffold for any further proceedings or for entry of any additional judgments.” Id. at ¶3. Thus, the judge has no duty to bring

Davis back for execution of sentence, and mandamus will not lie.1

{¶7} Accordingly, this court grants the respondent’s motion to dismiss and

dismisses the application for a writ of mandamus. Relator to pay cost. This court

directs the clerk of court to serve all parties notice of this judgment and its date of entry

upon the journal as required by Civ.R. 58(B).

{¶8} Writ dismissed.

KATHLEEN ANN KEOUGH, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and EILEEN A. GALLAGHER, J., CONCUR

1 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. Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914 (1987).