State ex rel. Dowdell v. Sheehan

2014 Ohio 2068

Opinion

[Cite as State ex rel. Dowdell v. Sheehan, 2014-Ohio-2068.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 101080

STATE OF OHIO, EX REL. JARON DOWDELL

RELATOR

vs.

HONORABLE BRENDAN SHEEHAN RESPONDENT

JUDGMENT: WRIT DENIED

Writ of Mandamus Motion No. 473528 Order No. 474519

RELEASE DATE: May 14, 2014 FOR RELATOR

Jaron Dowdell, pro se Inmate No. 650-574 Trumbull Correctional Institution P.O. Box 901 Leavittsburg, Ohio 44430

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 EILEEN A. GALLAGHER, J.:

{¶1} On March 4, 2014, the relator, Jaron Dowdell, commenced this extraordinary

writ action against the respondent, Judge Brendan Sheehan.1 In his complaint, Dowdell

seeks to compel the judge to rule on a R.C. 2953.21 postconviction relief petition that

Dowdell says he filed on December 21, 2013, in the underlying case, State v. Dowdell,

Cuyahoga C.P. No. CR-12-558070-A. On March 27, 2014, the respondent judge,

through the Cuyahoga County prosecutor, moved for summary judgment on the grounds

of mootness and procedural defects. Dowdell never filed a timely response. For the

following reasons, this court grants the respondent’s dispositive motion and denies the

application for an extraordinary writ.

{¶2} In the underlying case, Dowdell pleaded guilty to burglary, attempted

felonious assault, and vandalism, and the judge sentenced him to two years of community

control sanctions. On November 20, 2013, after repeated community control violations,

the trial judge ordered him to prison for one year on each count to be served concurrently

with 101 days of jail-time credit.

{¶3} A review of the underlying case’s docket shows that Dowdell never filed a

R.C. 2953.21 postconviction relief petition, but did file a motion for jail-time credit on

1 In his pleading caption, Dowdell styles his action as a complaint for mandamus, but in his complaint he says that he is applying for a writ of procedendo. His demand for judgment “prays that this court issue a procedendo against respondent granting the mandamus action * * *.” He also refers to a writ of habeas corpus in his affidavit of verity, but makes no argument for immediate release. December 24, 2013. Attached to the judge’s summary judgment motion is a copy of a

certified March 12, 2014 judgment entry granting Dowdell 137 days of jail-time credit.

Thus, the judge has fulfilled his duty to rule on the outstanding motion and has rendered

this writ action moot. 2 There is no duty to resolve or proceed to judgment on a

postconviction relief petition that was never filed.

{¶4} Relator 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; and

Hazel v. Knab, 130 Ohio St.3d 22, 2011-Ohio-4608, 955 N.E.2d 378.

{¶5} Accordingly, this court grants the respondent’s motion for summary

judgment and denies the application for an extraordinary writ. Relator to pay costs.

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).

2 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. 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. Pressley v. Indus. Comm. of Ohio, 11 Ohio St.2d 141, 228 N.E.2d 631 (1967), paragraph three of the syllabus. 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). {¶6} Writ denied.

_____________________________________ EILEEN A. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and EILEEN T. GALLAGHER, J., CONCUR