WILLIE L. BANDY v. CUYAHOGA COUNTY PROSECUTOR, ET AL.
No. 106635
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 13, 2018
2018-Ohio-3679
Kilbane, P.J., McCormack, J., and Boyle, J.
JOURNAL ENTRY AND OPINION
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-17-885550
RELEASED AND JOURNALIZED: September 13, 2018
Willie L. Bandy, pro se
Inmate No. 431465
Grafton Correctional Institution
2500 South Avon Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEES
For Cuyahoga County Prosecutor
Michael C. O’Malley
Cuyahoga County Prosecutor
Charles E. Hannan
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
For Ohio Adult Parole Authority
Michael DeWine
Attorney General
Andrea Kathleen Green Boyd
Assistant Attorney General
Criminal Justice Section
150 East Gay Street - 16th Floor
Columbus, Ohio 43215
MARY EILEEN KILBANE, P.J.:
{¶2} In September 2017, Bandy filed a pro se civil complaint seeking declaratory judgment and injunctive relief. The complaint alleged that the state breached the terms of Bandy’s plea agreement in Cuyahoga C.P. No. CR-01-417888 (“the criminal case”).
{¶3} In October 2017, the trial court granted Bandy’s request to amend his complaint. In the amended complaint, Bandy alleges that in his criminal case, the trial court sentenced him to 15 years to life as a result of his guilty plea to a single count of murder. Bandy further alleges that the trial court “clearly promised [at the plea hearing] that after he completed his minimum sentence in this case _ [Bandy] will be released from prison onto parole.”
{¶4} Essentially, Bandy alleges the trial court promised him that upon his completion of 15 years of his indefinite sentence, he would be placed on parole and suрervised by the APA for at least 5 years. In support of this contention, Bandy cites in his amended complaint to the following statement by the trial court at the plea hearing in the criminаl case:
THE COURT: It’s my understanding that at a minimum, if when you complete your sentence in this case, that you can be supervised by the [APA] for felonies of the first degree. The period of supеrvision is five
years. I couldn’t find anything in the statute that sets a different time period for murder so I’m going to advise you, sir, that you are going to be supervised for at least a five-year period by the [APA] upon the completion of your sentence. Do you understand that?
{¶5} Bandy argues that “it’s clear [from this statement that] the trial court promised [him] that when he completes his minimum sentence [of 15 years that] he would be released onto parole.”
{¶6} The amended complaint requests that the trial court in the present case “order the [state] to comply with [Bandy’s] plea agreement” and release him from prison to the supervision of the APA because he had recently completed 15 years in prison. The amended complaint further alleges that the APA ignored “the plea agreement conditions, terms, and promise made and ordered by the trial court, when the [APA] continued [Bandy’s] agreed to minimum sentence for parole for eight more consecutive years[.]”
{¶7} In November 2017, the county prosecutor and the APA each filed separate motions to dismiss Bandy’s amended complaint for failure to state a claim upon which relief could be granted. Bandy did not oppose either motion. In December 2017, the trial court granted both motions, dismissing Bandy’s amended complaint in its entirety.
{¶8} It is from this order that Bandy appeals, raising the following two assignments of error for our review.
Assignment of Error One
Assignment of Error Two
The trial court erred by dismissing [Bandy’s] complaint for declaratory judgment and injunctive relief pursuant to
{¶9} In the first and second assignments of error, Bandy argues that the trial court erred in granting the county prosecutor’s and the APA’s
Standard of Review
{¶10} This court аpplies a de novo standard of review to the trial court’s ruling on a motion to dismiss under
{¶11} In order for a trial court to dismiss a complaint under
{¶12} In resolving a
Bandy’s Request for Declaratory and Injunctive Relief
{¶13} Bandy’s amended complaint seeks to enforce through a declaratory judgment action what Bandy describes as the trial court’s promise in the criminal cаse “that after [Bandy] has completed his minimum [15-year] sentence[,] he would be released onto parole[.]” Bandy also argues that his plea agreement constitutes a сontract for a 15-year sentence.
{¶14} In order to maintain an action for declaratory judgment, a party must demonstrate that a real controversy exists between the parties, that the controversy is justiciable in character, and that speedy relief is necessary to preserve the rights of the parties. Parham v. McManamon, 8th Dist. Cuyahoga No. 103679, 2016-Ohio-3264, ¶ 6,
{¶15} This court has held that “[a] declaratory judgment action * * * cannot be used as a substitute for a direct appeal or as a collateral attack upon a conviction.” Moore v. Mason, 8th Dist. Cuyahoga No. 84821, 2005-Ohio-1188, _ 14. “Declaratory relief ‘does not provide a means whereby previous judgments of state or federal courts may be reexamined, nor is it a substitute for appeal or [postconviction] remedies.’” Id., quoting Shannon v. Sequeechi, 365 F.2d 827, 829 (10th Cir.1966).
{¶16} Indeed, the Ohio Supreme Court has likewise held:
For direct and collateral attacks alike, declaratory judgment is simply not a part of the criminal appellate or postconviction review process. Wilson [v. Collins, 10th Dist. Franklin No. 10AP-511, 2010-Ohio-6538,] ¶ 9; [State v. Brooks, 133 Ohio App.3d 521, 525-526, 728 N.E.2d 1119 (4th Dist.1999),]; Moore at ¶ 14; Gotel [v. Ganshiemer, 11th Dist. Ashtabula No. 2008-A-0070, 2009-Ohio-5423,] ¶ 44. Ohio’s Criminal Rules and statutes provide for the direct review of criminal judgments through appeal, and collateral attacks through postconviction petitions, habeas corpus, and
motions to vacate. Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 20. A declaratory-judgment action cannot be used as a substitutе for any of these remedies. Clark [v. Memolo, 85 U.S.App.D.C. 65, 174 F.2d 978, 981 (1949)]; Shannon at 829; Wilson at ¶ 9; Moore at ¶ 14; Gotel at ¶ 44; Burge [v. Ohio Atty. Gen., 10th Dist. Franklin No. 10AP-856, 2011-Ohio-3997,] ¶ 10.
Lingo v. State, 138 Ohio St.3d 427, 2014-Ohio-1052, 7 N.E.3d 1188, ¶ 44.
{¶17} Here, Bandy asks the trial court to reexamine the judgment of the same court in a criminal proceeding that took place over a dеcade ago. However, “‘[n]either, the Declaratory Judgments Act nor
{¶18} We note that “habeas corpus, rather than declaratory judgment, is the proper action for persons claiming entitlement to immediate release from prison.” Woodson v. Ohio Adult Parole Auth., 10th Dist. Franklin No. 02AP-393, 2002-Ohio-6630, ¶ 10, citing State ex rel. Finfrock v. Ohio Adult Parole Auth., 80 Ohio St.3d 639, 1998-Ohio-655, 687 N.E.2d 761.
{¶20} Based on the foregoing, we find the trial court properly granted the county prosecutor’s and the APA’s
{¶21} Accordingly, the first and second assignments are overruled.
{¶22} Judgment affirmed.
It is ordered that appellees recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to
MARY EILEEN KILBANE, PRESIDING JUDGE
TIM McCORMACK, J., and
MARY J. BOYLE, J., CONCUR