State ex rel. Tobias v. Fuerst

2022 Ohio 3556

• Court: Ohio Court of Appeals
• Decided: October 3, 2022
• Docket: 111836
• Status: Published

Opinion

[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-3277

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; 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