[Cite as State ex rel. McCall v. Batchelor, 2022-Ohio-2982.]
COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT
THE STATE OF OHIO, ex rel. JUDGES: EUGENE B. McCALL Hon. Earle E. Wise, Jr., P. J. Hon. William B. Hoffman, J. Relator Hon. John W. Wise, J.
-vs- Case No. 2022CA0019 ROBERT BATCHELOR, JUDGE
Respondent OPINION
CHARACTER OF PROCEEDING: Writ of Mandamus
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: August 26, 2022
APPEARANCES:
For Relator For Respondent
EUGENE B. McCALL JASON W. GIVEN NOBLE CORRECTIONAL INSTITUTION PROSECUTING ATTORNEY 15708 McConnelsville Road 318 Chestnut Street Caldwell, Ohio 43724 Coshocton, Ohio 43724 Coshocton County, Case No. 2022CA0019 2
Wise, John, J.
{¶1} Relator Eugene B. McCall filed a Verified Complaint for Writ of Mandamus
on July 8, 2022. He asks the Court to compel Respondent Judge Robert Batchelor to
apply 67 days of jail-time credit to each sentence concurrently imposed in State of Ohio
v. Eugene B. McCall, Case Nos. 2016CR0062 and 2016CR0097. For the following
reasons, we dismiss the writ.
I. Factual background
{¶2} On January 24, 2017, the trial court sentenced McCall on a seven-count
indictment in Coshocton Case No. 2016CR0062 and on a one-count indictment in
Coshocton Case No. 2016CR0097. These two cases were previously consolidated per
a Judgment Entry issued on December 20, 2016.
{¶3} In Case No. 2016CR0062, Judge Batchelor sentenced McCall to a six-year
prison term and granted him two days of jail-time credit. In Case No. 2016CR0097, Judge
Batchelor sentenced McCall to an eleven-month prison term and granted McCall sixty-
seven days of jail-time credit. Judge Batchelor ordered the sentences to be served
concurrently. McCall alleges Judge Batchelor applied the sixty-seven days of jail-time
credit to Case No. 2016CR0097 and failed and refused to apply this same jail-time credit
to the concurrent term in Case No. 2016CR0062.
{¶4} McCall asserts as a result, he has been denied jail-time credit to which he
is constitutionally and statutorily entitled, which subjects him to double jeopardy for the
duration of the jail-time credits. In support of his argument, McCall cites State v. Fugate,
117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440. Judge Batchelor filed a Motion to
Dismiss Pursuant to Ohio R.Civ.P. 12(B)(6). Coshocton County, Case No. 2022CA0019 3
{¶5} Judge Batchelor points out McCall filed Motions for Jail Time Credit in Case
Nos. 2016CR0062 and 2016CR0097 on May 17, 2021. Judge Batchelor denied both
motions via Judgment Entry on June 1, 2021. McCall did not appeal the denial of either
motion.
II. Elements of writ of mandamus
{¶6} R.C. 2731.03 provides: “The writ of mandamus may require an inferior
tribunal to exercise its judgment, or proceed to the discharge of any of its functions, but
it cannot control judicial discretion.” For a writ of mandamus to issue, the relator must
have a clear legal right to the relief prayed for, the respondent must be under a clear
legal duty to perform the requested act, and relator must have no plain and adequate
remedy in the ordinary course of law. (Citations omitted.) State ex rel. Berger v.
McMonagle, 6 Ohio St.3d 28, 29, 451 N.E.2d 225 (1983).
{¶7} Thus, “[m]andamus is an extraordinary remedy ‘to be issued with great
caution and discretion and only when the way is clear.’ ” State ex rel. Taylor v. Glasser,
50 Ohio St.2d 165, 166, 364 N.E.2d 1 (1977), citing State ex rel. Kriss v. Richards, 102
Ohio St. 455, 457, 132 N.E. 23 (1921), and State ex rel. Skinner Engine Co. v. Kouri,
136 Ohio St. 343, 25 N.E.2d 940, paragraph one of the syllabus. “Extraordinary
remedies, i.e. mandamus * * * are available only when usual forms of procedure are
incapable of affording relief. They may not be employed before trial on the merits, as a
substitute for an appeal for the purpose of reviewing mere errors, or irregularities in the
proceedings of a court having proper jurisdiction.” State ex rel. Woodbury v. Spitler, 34
Ohio St.2d 134, 137, 296 N.E.2d 526 (1973). Coshocton County, Case No. 2022CA0019 4
‘It is the well-settled general rule in Ohio that the issuance of a writ
of mandamus rests, to a considerable extent at least, within the sound
discretion of the court to which application for the writ is made. The writ is
not demandable as a matter of right, or at least is not wholly a matter of
right; nor will it issue unless the relator has a clear right to the relief sought,
and makes a clear case for the issuance of the writ. The facts submitted
and the proof produced must be plain, clear, and convincing before a court
is justified in using the strong arm of the law by way of granting the writ.’
(Citation omitted.)
State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141, 161, 228 N.E.2d 631 (1967).’
III. Analysis
{¶8} McCall requests mandamus relief due to an alleged sentencing error
concerning jail-time credit. “[S]entencing errors are generally not remediable by
extraordinary writ, because the defendant usually has an adequate remedy at law
available by way of direct appeal.” State ex rel Ridenour v. O’Connell, 147 Ohio St.3d
351, 2016-Ohio-7368, 65 N.E.3d 742, ¶ 3. For example, in State ex rel. Duffy v. Pittman,
11th Dist. Portage No. 2006-P-0043, 2007-Ohio-346, ¶ 13, the court of appeals held,
“under Ohio law, a trial court’s calculation of jail-time credit cannot be challenged through
a mandamus proceeding because direct appeal of the trial court’s decision constitutes
an adequate remedy at law.”
{¶9} Here, McCall had the opportunity to directly appeal the trial court’s decision
regarding the application of jail-time credit and did not do so. Further, Judge Batchelor
contends in his dismissal motion that McCall filed two motions asking the trial court to Coshocton County, Case No. 2022CA0019 5
recalculate his jail-time credit. In his Memorandum in Opposition to Respondent’s Motion
to Dismiss, McCall acknowledges the fact that he filed these motions and contends he
is not precluded from filing another motion.
{¶10} We confirmed the filing of these motions by viewing the Coshocton County
Clerk of Courts’ docket. We are permitted to take judicial notice of public court records
available on the internet. See State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195,
2007-Ohio-4798, 874 N.E.2d 516, ¶ 8 citing Leatherworks Partnership v. Berk Realty,
Inc., N.D.Ohio No. 4:04 CV 0784 2005 WL 3059623, *2 (Nov. 15, 2005), aff’d in part,
rev’d in part and remanded on other grounds 247 Fed.Appx. 676 (6th Cir.2007). Further,
under our plenary powers in original actions we are permitted to take judicial notice of
appropriate matters in determining a Civ.R.
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[Cite as State ex rel. McCall v. Batchelor, 2022-Ohio-2982.]
COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT
THE STATE OF OHIO, ex rel. JUDGES: EUGENE B. McCALL Hon. Earle E. Wise, Jr., P. J. Hon. William B. Hoffman, J. Relator Hon. John W. Wise, J.
-vs- Case No. 2022CA0019 ROBERT BATCHELOR, JUDGE
Respondent OPINION
CHARACTER OF PROCEEDING: Writ of Mandamus
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: August 26, 2022
APPEARANCES:
For Relator For Respondent
EUGENE B. McCALL JASON W. GIVEN NOBLE CORRECTIONAL INSTITUTION PROSECUTING ATTORNEY 15708 McConnelsville Road 318 Chestnut Street Caldwell, Ohio 43724 Coshocton, Ohio 43724 Coshocton County, Case No. 2022CA0019 2
Wise, John, J.
{¶1} Relator Eugene B. McCall filed a Verified Complaint for Writ of Mandamus
on July 8, 2022. He asks the Court to compel Respondent Judge Robert Batchelor to
apply 67 days of jail-time credit to each sentence concurrently imposed in State of Ohio
v. Eugene B. McCall, Case Nos. 2016CR0062 and 2016CR0097. For the following
reasons, we dismiss the writ.
I. Factual background
{¶2} On January 24, 2017, the trial court sentenced McCall on a seven-count
indictment in Coshocton Case No. 2016CR0062 and on a one-count indictment in
Coshocton Case No. 2016CR0097. These two cases were previously consolidated per
a Judgment Entry issued on December 20, 2016.
{¶3} In Case No. 2016CR0062, Judge Batchelor sentenced McCall to a six-year
prison term and granted him two days of jail-time credit. In Case No. 2016CR0097, Judge
Batchelor sentenced McCall to an eleven-month prison term and granted McCall sixty-
seven days of jail-time credit. Judge Batchelor ordered the sentences to be served
concurrently. McCall alleges Judge Batchelor applied the sixty-seven days of jail-time
credit to Case No. 2016CR0097 and failed and refused to apply this same jail-time credit
to the concurrent term in Case No. 2016CR0062.
{¶4} McCall asserts as a result, he has been denied jail-time credit to which he
is constitutionally and statutorily entitled, which subjects him to double jeopardy for the
duration of the jail-time credits. In support of his argument, McCall cites State v. Fugate,
117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440. Judge Batchelor filed a Motion to
Dismiss Pursuant to Ohio R.Civ.P. 12(B)(6). Coshocton County, Case No. 2022CA0019 3
{¶5} Judge Batchelor points out McCall filed Motions for Jail Time Credit in Case
Nos. 2016CR0062 and 2016CR0097 on May 17, 2021. Judge Batchelor denied both
motions via Judgment Entry on June 1, 2021. McCall did not appeal the denial of either
motion.
II. Elements of writ of mandamus
{¶6} R.C. 2731.03 provides: “The writ of mandamus may require an inferior
tribunal to exercise its judgment, or proceed to the discharge of any of its functions, but
it cannot control judicial discretion.” For a writ of mandamus to issue, the relator must
have a clear legal right to the relief prayed for, the respondent must be under a clear
legal duty to perform the requested act, and relator must have no plain and adequate
remedy in the ordinary course of law. (Citations omitted.) State ex rel. Berger v.
McMonagle, 6 Ohio St.3d 28, 29, 451 N.E.2d 225 (1983).
{¶7} Thus, “[m]andamus is an extraordinary remedy ‘to be issued with great
caution and discretion and only when the way is clear.’ ” State ex rel. Taylor v. Glasser,
50 Ohio St.2d 165, 166, 364 N.E.2d 1 (1977), citing State ex rel. Kriss v. Richards, 102
Ohio St. 455, 457, 132 N.E. 23 (1921), and State ex rel. Skinner Engine Co. v. Kouri,
136 Ohio St. 343, 25 N.E.2d 940, paragraph one of the syllabus. “Extraordinary
remedies, i.e. mandamus * * * are available only when usual forms of procedure are
incapable of affording relief. They may not be employed before trial on the merits, as a
substitute for an appeal for the purpose of reviewing mere errors, or irregularities in the
proceedings of a court having proper jurisdiction.” State ex rel. Woodbury v. Spitler, 34
Ohio St.2d 134, 137, 296 N.E.2d 526 (1973). Coshocton County, Case No. 2022CA0019 4
‘It is the well-settled general rule in Ohio that the issuance of a writ
of mandamus rests, to a considerable extent at least, within the sound
discretion of the court to which application for the writ is made. The writ is
not demandable as a matter of right, or at least is not wholly a matter of
right; nor will it issue unless the relator has a clear right to the relief sought,
and makes a clear case for the issuance of the writ. The facts submitted
and the proof produced must be plain, clear, and convincing before a court
is justified in using the strong arm of the law by way of granting the writ.’
(Citation omitted.)
State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141, 161, 228 N.E.2d 631 (1967).’
III. Analysis
{¶8} McCall requests mandamus relief due to an alleged sentencing error
concerning jail-time credit. “[S]entencing errors are generally not remediable by
extraordinary writ, because the defendant usually has an adequate remedy at law
available by way of direct appeal.” State ex rel Ridenour v. O’Connell, 147 Ohio St.3d
351, 2016-Ohio-7368, 65 N.E.3d 742, ¶ 3. For example, in State ex rel. Duffy v. Pittman,
11th Dist. Portage No. 2006-P-0043, 2007-Ohio-346, ¶ 13, the court of appeals held,
“under Ohio law, a trial court’s calculation of jail-time credit cannot be challenged through
a mandamus proceeding because direct appeal of the trial court’s decision constitutes
an adequate remedy at law.”
{¶9} Here, McCall had the opportunity to directly appeal the trial court’s decision
regarding the application of jail-time credit and did not do so. Further, Judge Batchelor
contends in his dismissal motion that McCall filed two motions asking the trial court to Coshocton County, Case No. 2022CA0019 5
recalculate his jail-time credit. In his Memorandum in Opposition to Respondent’s Motion
to Dismiss, McCall acknowledges the fact that he filed these motions and contends he
is not precluded from filing another motion.
{¶10} We confirmed the filing of these motions by viewing the Coshocton County
Clerk of Courts’ docket. We are permitted to take judicial notice of public court records
available on the internet. See State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195,
2007-Ohio-4798, 874 N.E.2d 516, ¶ 8 citing Leatherworks Partnership v. Berk Realty,
Inc., N.D.Ohio No. 4:04 CV 0784 2005 WL 3059623, *2 (Nov. 15, 2005), aff’d in part,
rev’d in part and remanded on other grounds 247 Fed.Appx. 676 (6th Cir.2007). Further,
under our plenary powers in original actions we are permitted to take judicial notice of
appropriate matters in determining a Civ.R. 12(B)(6) motion without converting it to a
summary judgment motion. See id. at ¶ 9; State ex rel. Scott v. Cleveland, 112 Ohio
St.3d 324, 2006-Ohio-6573, 859 N.E.2d 923, ¶ 26.
{¶11} Thus, in addition to available relief by way of a direct appeal, McCall could
have also appealed the denial of his motions requesting jail-time credit. In State ex rel.
Johnson v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 14AP-616, 2015-Ohio-
2356, ¶ 10, the court of appeals found relator had an adequate remedy at law where he
“utilized the statutory process for correcting ‘any error’ in determining jail-time credit * * *
by filing with the trial court a motion to order proper application of jail-time credit and did
not appeal from the trial court’s decision to deny his jail-time credit motion.”
{¶12} McCall had adequate remedies at law and he is therefore not entitled to
mandamus relief. We grant Judge Batchelor’s Motion to Dismiss under Civ.R. 12(B)(6).
McCall failed to state a claim for relief. The clerk of courts is hereby directed to serve Coshocton County, Case No. 2022CA0019 6
upon all parties not in default notice of this judgment and its date of entry upon the
journal. See Civ.R. 58(B).
{¶13} MOTION TO DISMISS GRANTED.
{¶14} WRIT OF MANDAMUS DISMISSED.
{¶15} COSTS TO RELATOR.
{¶16} IT IS SO ORDERED.
By: Wise, John, J.
Wise, Earle, P. J., and
Hoffman, J., concur.
JWW/ac 0822