State ex rel. Scott v. Gall

Mar 10, 2020
109325
Versions:

JOURNAL ENTRY AND OPINION

JUDGMENT: WRIT DENIED

DATED: March 10, 2020

Appearances:

Marvin Scott III, pro se.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for respondent.

EILEEN A. GALLAGHER, J.:

{¶ 1} On December 24, 2019, the relator, Marvin Scott, III, commenced this mandamus action against the respondent, Judge Steven Gall, to compel the judge to rule on Scott’s January 17, 2019 motion for a final, appealable order in the underlying case, State v. Scott, Cuyahoga C.P. No. CR-17-615337-A. Scott further asks that this court compel the respondent judge to resentence him and to issue a final, appealable order. The gravamen of his complaint is that the judge did not properly impose postrelease control sanctions because he did not specify that the sanctions apply to both counts one and two. On January 13, 2020, the respondent judge, through the Cuyahoga County Prosecuting Attorney, moved for summary judgment on the grounds of mootness. Attached to the dispositive motion is a certified copy of a December 30, 2019 journal entry denying Scott’s motion for a final, appealable order. Scott filed his brief in opposition to the judge’s dispositive motion on January 30, 2020. For the following reasons, this court grants the respondent’s motion for summary judgment and denies the application for a writ of mandamus.

{¶ 2} In the underlying case, a jury found Scott guilty of felonious assault, a second-degree felony; improper discharge of a firearm, also a second-degree felony; domestic violence and three counts of endangering children. The judge imposed a 13 year sentence. In the sentencing order the judge stated as follows:

Post release control is part of this prison sentence for 3 years mandatory for the above felony(s) under R.C. 2967.28. Defendant advised that if/when post release control supervision is imposed following his/her release from prison and if he/she violates that supervision or condition of post release control under RC 2967.131(B), parole board may impose a prison term as part of the sentence of up to one-half of the stated prison term originally imposed upon the offender.

{¶ 3} Scott appealed and argued insufficiency of the evidence, manifest weight of the evidence and allied offenses. This court affirmed in State v. Scott, 8th Dist. Cuyahoga Nos. 106451 and 106474, 2018-Ohio-3791.

{¶ 4} Scott then filed the subject motion, arguing that the trial court did not issue a final, appealable order because the entry did not explicitly impose postrelease control on counts one and two. Thus, he is entitled to a new sentencing and new appeal. When the trial court did not rule on the subject motion, Scott commenced this mandamus action.

{¶ 5} In the December 30, 2019 journal entry, the respondent judge first denied Scott’s motion for a final, appealable order. He then explained that pursuant to State v. Morris, 8th Dist. Cuyahoga No. 97215, 2012-Ohio-2498, that the imposition of postrelease control was proper and that “a court is precluded from imposing more than one period of postrelease control in cases that involve multiple convictions.” The judge further explained that pursuant to State v. Worley, 8th Dist. Cuyahoga No. 107179, 2018-Ohio-5359, an improper imposition of postrelease control does not affect the finality of an otherwise final, appealable order.

{¶ 6} Scott in his brief in opposition insists that his sentencing order is not a final, appealable order and that mandamus should still issue.

{¶ 7} 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. 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). 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); State ex rel. Connole v. Cleveland Bd. of Edn., 87 Ohio App.3d 43, 621 N.E.2d 850 (8th Dist.1993).

{¶ 8} In the present case, to the extent that Scott is seeking a writ of mandamus to compel a ruling on his outstanding motion, the case is moot. The respondent judge has fulfilled his duty to resolve the motion and Scott has received his requested relief, a ruling on the motion. To the extent that Scott seeks to compel the respondent judge to grant the subject motion and conduct a new sentencing hearing and “properly” impose postrelease control sanctions, mandamus will not lie because he is seeking to control judicial discretion, and mandamus will not lie to do that. Ney, supra, at 119. Moreover, Scott has an adequate remedy at law through appeal to contest the propriety of the December 30, 2019 journal entry and seek his ultimate desired relief. The court notes that Scott is pursuing that remedy in State v. Scott, 8th Dist. Cuyahoga No. 109436.

{¶ 9} Accordingly, this court grants the respondent judge’s summary judgment motion and denies the application for a writ of mandamus. Relator to pay costs; costs waived. This court directs the clerk of courts to serve all parties notice of this judgment and its date of entry upon the journal as required by Civ.R. 58(B).

{¶ 10} Writ denied.

EILEEN A. GALLAGHER, JUDGE

SEAN C. GALLAGHER, P.J., and ANITA LASTER MAYS, J., CONCUR