State v. D'ApolitoState v. D'Apolito
JUDGMENT: Petition for Writ of Mandamus dismissed.
APPEARANCES:
For Relator Christopher Stanley, pro-se #443-303 Lorain Correctional Institution 2075 South Avon Beldon Rd. Grafton, Ohio 44044
For Respondent Paul Gains Prosecutor Ralph M. Rivera Assistant Prosecutor 21 W. Boardman St., 6th Floor Youngstown, Ohio 44503
{¶1} This original action comes before this Court on a pro se complaint for a writ of mandamus filed by Relator Christopher Stanley (Stanley) seeking an order to compel Respondent Judge Lou A. D‘Apolito (Judge D‘Apolito) of the Mahoning County Court of Common Pleas to respond to Stanley‘s motion for resentencing, filed on November 20, 2009. Judge D‘Apolito timely filed a combined answer and motion to dismiss, asserting that Stanley‘s mandamus petition is procedurally defective, or in the alternative, that the petition does not state facts sufficient to constitute a cause of action against him.
{¶2} In August of 2000, Stanley was arrested in connection with a brutal attack on a woman in Smith Township. State v. Stanley, 7th Dist. No. 03 MA 42, 2004-Ohio-6801, at ¶2. Stanley confessed to the crime and was subsequently indicted on three counts in the Mahoning County Court of Common Pleas (Case No. 00 CR 778): attempted murder, a first degree felony in violation of
{¶3} Stanley eventually pled no contest to all three charges on December 31, 2002. Id. at ¶19. In a March 3, 2003 entry, the court sentenced Stanley to five years for attempted murder, eight years for rape, and five years for aggravated burglary, all to run consecutively. Id. On appeal, this Court affirmed Stanley‘s conviction and sentence. Id. at ¶47. Stanley is currently serving out this sentence at the Lorain Correctional Institution. (Verified Complaint for Writ of Mandamus at 1.)
{¶4} It is the judgment entry of March 3, 2003 that Stanley takes issue with in the present action. (Verified Complaint for Writ of Mandamus at 2.) Particularly, Stanley contends that the language providing that “[d]efendant has been given notice under
{¶5} On May 10, 2010, Judge D‘Apolito filed a combined answer and motion to dismiss, positing that Stanley‘s petition for mandamus fails to comply with the procedural mandates set forth in
{¶6} As a preliminary matter, it should be noted that this court has the ability to hear an original mandamus action pursuant to
{¶7} In the present action, Stanley seeks mandamus to compel Judge D‘Apolito to rule on his motion for resentencing that he filed on November 20, 2009. At the outset, however, it is clear that Stanley‘s petition for mandamus is procedurally defective and must be dismissed. See State ex rel. Barksdale v. Sutula, 8th Dist. No. 93861, 2009-Ohio-4885, at ¶7 (holding that defects in the complaint provide grounds for dismissal).
{¶8}
{¶9} Here, Stanley has attached an affidavit of indigency to his complaint, but any statement from the institutional cashier is conspicuously absent. Consequently, Stanley fails to satisfy
{¶10} Notwithstanding this fatal procedural defect, we will proceed to a discussion of the merits of Stanley‘s petition.
{¶11} In addition to Judge D‘Apolito‘s correct assertion that Stanley‘s mandamus petition was defective pursuant to
{¶12} To be entitled to the writ, Stanley must establish a clear legal right to the requested relief, a corresponding clear legal duty on the part of Judge D‘Apolito to provide it, and the lack of an adequate remedy in the ordinary course of law. Powell v. Houser, 7th Dist. No. 07-MA-14, 2007-Ohio-2866, at ¶8, citing Doss Petroleum, Inc. v. Columbiana Cty. Bd. of Elections, 164 Ohio App.3d 255, 2005-Ohio-5633, 842 N.E.2d 66, at ¶6, citing to State ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28, 29, 451 N.E.2d 225. In addition, although mandamus may be used
{¶13} The Ohio Supreme Court has plainly articulated its reluctance to grant such measures, stressing that mandamus is an extraordinary remedy, which 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 (1977), 50 Ohio St.2d 165, 166, 364 N.E.2d 1; see also State ex rel. Pressley v. Industrial Commission of Ohio (1967), 11 Ohio St.2d 141, 161, 228 N.E.2d 31 (“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.“). Further, the writ is not demandable wholly as a matter of right. Id. at 161, 364 N.E.2d 1. Rather, the issuance of a writ of mandamus rests within the sound discretion of the court to which application for the writ is made, and depends upon the facts and circumstances of the case, including the relator‘s rights, the relator‘s conduct, the equity and justice of the relator‘s case, and public policy. Id. at 161, 364 N.E.2d 1.
{¶14} As stated, Stanley‘s complaint for mandamus seeks to compel Judge D‘Apolito to issue a ruling on Stanley‘s motion for resentencing. Stanley argues that his current sentence is contrary to law in that the sentencing entry fails to include proper notification concerning post-release control pursuant to
{¶15}
{¶16} A sentence that fails to notify the offender that he or she is subject to post-release control is wholly unauthorized and void. State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, at ¶16. “Because a sentence that does not conform to statutory mandates requiring the imposition of post release control is a nullity and void, it must be vacated. The effect of vacating the sentence places the parties in the same position as they were had there been no sentence.” State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, at ¶22. Moreover, when such an error is apparent, the trial court retains jurisdiction to correct a void sentence and is authorized to do so. Id. at ¶23. As such, Stanley properly directed his request for resentencing to the court that originally sentenced him.
{¶17} Here, however, the error is not entirely apparent. The sentencing entry does at least contain a reference to the relevant statutory notice provision, stating: “[d]efendant has been given notice under
{¶18} The matter comes before this Court because Stanley‘s motion, submitted on November 20, 2009, has yet to be ruled on by the sentencing court. Stanley opines that
{¶19} “As stated in State ex rel. Rodgers v. Cuyahoga Cty. Court of Common Pleas (1992), 84 Ohio App.3d 684, 615 N.E.2d 689, ‘[t]he rule may impose upon the trial court the duty to rule upon motions within one hundred twenty days for purposes of efficient court administration. That, however, does not necessarily mean that a corresponding right is created for litigants to force a trial judge to rule upon any motion within one hundred twenty days, regardless of the posture of the litigation. The need for discovery, the issues presented, the possibility of settlement, other motions pending in the case, and even other matters pending before the court could all, inter alia, be sufficient reason for the trial court within its proper discretion not to rule upon a motion within one hundred twenty days. Furthermore, allowing litigants to enforce such a rigid rule risks depriving other litigants of due process, invites gamesmanship in litigation, and could frustrate the policy of deciding cases on their merits and not on procedural technicalities.‘” Powell v. Houser, 7th Dist. No. 07-MA-14, 2007-Ohio-2866, at ¶22.
{¶20} Based on this precedent, Stanley‘s bare assertion that his motion has been pending in excess of 120 days fails to establish a clear legal right to a ruling on the motion at this time. As there is no indication that Judge D‘Apolito has refused to enter judgment on the pending motions, this Court cannot necessarily say that the length of delay has been unreasonable. Therefore, because Stanley cannot
{¶21} Relator‘s petition suffers from a fatal procedural defect, warranting automatic dismissal. Moreover, Relator has not demonstrated a claim cognizable for relief through mandamus. Thus, the writ of mandamus sought by Relator is hereby denied.
{¶22} Costs taxed against Relator. Final order. Clerk to serve notice as provided by the Civil Rules.
Donofrio, J. concurs.
Vukovich, P.J. concurs.