State ex rel. Sanders v. EnlowState ex rel. Sanders v. Enlow
Judgment: Petition dismissed.
Dоuglas M. Sanders, PID: 450-434, Trumbull Correctional Institution, P.O. Box 901, Leavittsburg, OH 44430 (Relator).
Victor V. Vigluicci, Portage County Prosecutor, and Denise L. Smith, Chief Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Respondent).
PER CURIAM.
{¶1} This action in mandamus is presently before this court for consideration of the motion to dismiss of respondent, Judge John A. Enlow of the Portage County Court of Common Pleаs. As the sole basis for his motion, respondent asserts that the petition of relator, Douglas M. Sanders, fails to state a viable claim for the writ because his own factual allegations support the conclusion that he has already had a full and adequate opportunity to contest the validity of his criminal sentence. For the following rеasons, we hold that that the dismissal of this action is warranted.
{¶3} Relator immediately appealed his 2003 conviction to this court. In State v. Sanders, 11th Dist. No. 2003-P-0072, 2004-Ohio-5629, we upheld the basic conviction on the twenty counts, but reversed respondent‘s decision regarding the imposition of consecutive рrison terms. Specifically, this court held that the procedure employed by respondent had been improper because: (1) he had failed to consider certain statutory factors pertaining to the seriousness of the crimes and the likelihood of recidivism; and (2) he had failed to fully explain the reasons for his decision. Given these errors, this court remanded the action to respondent for resentencing.
{¶4} Upon remand, respondent held a new sentencing hearing and issued a new final judgment, in which the idеntical sentence of nineteen and one-half years was re-imposed. Since respondent again determined that many of the terms on the twenty counts should be served consecutively, relator instituted a second appeal before this court.
{¶5} In State v. Sanders, 11th Dist. No. 2005-P-0026, 2006-Ohio 2147, it was again concluded that an improper procedure had been follоwed in the imposition of the consecutive prison terms. Citing the Ohio Supreme Court‘s recent decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, this court expressly concluded that it was no
{¶6} After conducting a third sentencing hearing as part of the second remand, respondent rendered a third final judgment that again re-imposed the original sentenсe of nineteen and one-half years. This led to the filing of relator‘s third appeal before this court. In State v. Sanders, 11th Dist. No. 2006-P-0062, 2007-Ohio-5613, relator argued that the application of the Foster holding to the facts of his case had caused violations of the constitutional prohibitions against ex post fact laws and the lack of due process; accordingly, he requested this court to declare unconstitutional the rеmedy ordered by the Foster court. In rejecting this argument, we specifically held that an appellate court did not have the authority to alter any constitutional mandates or statutory constructions promulgated by the Supreme Court. Id. at ¶8.
{¶7} After the release of the third Sanders opinion in October 2007, relator filed a notice of appeal with the Supreme Court of Ohio. Howеver, in State v. Sanders, 117 Ohio St.3d 1426, 2008-Ohio-969, the Supreme Court decided not to accept jurisdiction over the matter and dismissed it without addressing the merits. Thus, the holding in our third Sanders opinion has never been reversed and is still enforceable.
{¶8} Over two years following the dismissal of relator‘s Supreme Court appeal, he brought the instant action in mandamus before this court. As the legal basis for his claim, relator again seeks to essentially contest the merits оf our decision in the second Sanders appeal, 11th Dist. No. 2005-P-0026, 2006-Ohio-2147. As was stated above, our second Sanders opinion concluded that the underlying criminal proceeding had to
{¶9} As to the substance of the foregoing contention, this court would indicate that the Supreme Court has consistently reсognized that new decisional law can only be applied to criminal matters which are still pending on the date of issuance. Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-6592, at ¶6. To this extent, the basic prohibition against retroactive application only comes into play when a criminal conviction has become truly “final.” State v. Evans (1972), 32 Ohio St.2d 185, 186. In considering this exact point, the Supreme Court hаs stated that a conviction is not deemed final until the defendant has exhausted all possible appellate remedies. Id.
{¶10} In the instant matter, a review of the Foster opinion readily demonstrates that it was rеleased by the Supreme Court on February 27, 2006. Given that our final opinion in the second Sanders appeal was not issued until April 2006, it is apparent that the second appeаl was still pending before us when Foster became the law of this state. Therefore, relator had not exhausted his appellate remedies, and his conviction had not become entirely final.
{¶11} Given the lack of finality, it cannot be said that our application of Foster in
{¶12} Even if a true question existed concerning the prоpriety of our analysis in the second Sanders appeal, relator cannot now contest the merits of that decision in the context of a mandamus case becаuse he had an adequate remedy in the ordinary course of the law. Specifically, he could have appealed the second Sanders decision directly to thе Ohio Supreme Court. In reviewing the elements for a writ of mandamus, this court has stated that “a party is not permitted to employ a writ of mandamus as a substitute remedy when he previously failed to invoke an adequate legal remedy in a timely fashion.” State ex rel. Zimcosky v. Collins, 11th Dist. No. 2009-L-141, 2010-Ohio-1716, at ¶13. Thus, relator is now barred from raising an issue which could have been advanced before the Supreme Court.
{¶13} In conjunction with the latter point, we would further note that relator could have raised his “retroactivity” argument in his third appeal before us. As was indicated above, our opinion in the third Sanders appeal addressed the question of whether our prior application of Foster to his criminal case had resulted in due process and еx post facto violations. Given the similarity of his “retroactivity” argument, its final merits could have likewise been fully addressed in the third appeal. In this regard, relator appears to have had two other adequate remedies he could have pursued.
{¶14} To be entitled to a writ of mandamus, the relator must be able to prove that: (1) he has а clear legal right to have a specific act performed by a public official; (2) the public official has a corresponding duty to perform that act; аnd (3) there is no other legal remedy that could be pursued to adequately resolve the matter. State ex rel.
{¶15} Respondent‘s motion to dismiss the instant matter is granted. It is the order of this court that relator‘s entire mandamus petition is hereby dismissed.
DIANE V. GRENDELL, J., CYNTHIA WESTCOTT RICE, J., COLLEEN MARY O‘TOOLE, J., concur.