Opinion
No. 109179
03-11-2020
STATE EX REL. JAMES AUSTIN, Relator, v. JUDGE NANCY A. FUERST, Respondent.
Appearances: James Austin, pro se. Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for respondent.
JOURNAL ENTRY AND OPINION JUDGMENT: WRIT DENIED Writ of Mandamus
Motion No. 533730
Order No. 536411
Appearances:
James Austin, pro se. Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for respondent. ANITA LASTER MAYS, J.:
{¶ 1} On November 5, 2019, the relator, James Austin, commenced this mandamus action against the respondent, Judge Nancy Fuerst, to compel the judge to issue specific explanatory or corrective journal entries to various motions he filed in the underlying case, State v. Austin, Cuyahoga C.P. No. CR-16-608502-A. The respondent judge moved for summary judgment on November 11, 2019, on the grounds of mootness, and Austin filed his reply brief on December 2, 2019. 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 in 2017, Austin pled guilty to two counts of aggravated burglary, two counts of intimidation of crime victim or witness, and one count each of kidnapping, having a weapon while under disability, and carrying a concealed weapon; the judge imposed an agreed total sentence of eight years. On November 13, 2018, Austin filed a petition to vacate or set aside the judgment of conviction or sentence, and the trial court denied it as untimely. However, on June 13, 2019, in State v. Austin, 8th Dist. Cuyahoga No. 108152, 2019-Ohio-2340, this court ruled that the petition was timely, and reversed and remanded the case to be considered on substantive grounds.
{¶ 3} On August 5, 2019, the respondent judge ordered Austin to be returned to the Cuyahoga County Jail from the Trumbull Correctional Institution. At the jail, Austin filed the first of the subject motions, which he titled as a "Motion for Journal Entry," and asked the court to issue a journal entry giving reason for his transport from the Trumbull Correctional Institution to the jail. On August 29, 2019, the respondent judge granted the motion, ordered Austin returned to the Trumbull Correctional Institution, and stated that Austin's postconviction relief petition is pending with the trial court.
{¶ 4} On September 3, 2019, Austin filed the second of the subject motions, which he titled "Motion to set record straight and correct case docket." In this motion, he stated that the "Motion for journal entry" was not a request to be sent back to the Trumbull Correctional Institution, but a request to state the reason why he was brought back to Cuyahoga County. He then moved to set the record straight and correct the docket to show what the first motion really sought. Austin further asked to remain in Cuyahoga County while his postconviction relief petition was pending. The respondent judge did not immediately rule on the second motion.
{¶ 5} On September 18, 2019, Austin filed the third and final subject motion, which he titled "Motion for the court to take judicial notice of pertinent facts pursuant to Evid.R. 201." In this motion he entreats the trial court to recognize on the journal the truth that the first motion was not a request to be sent back to Trumbull, but only to provide "some reasoning or rationale as to why he was abruptly conveyed to the [Cuyahoga County Jail] initially without notice or reason," as well as a "rationale for his sudden and subsequent transfer back to [the Trumbull Correctional Institution] in the same manner due to a convoluted interpretation of a Motion requesting clarification as to why he was transferred to begin with." Austin "asked that the record be set straight as to the actual meaning and intent of his Motion for Journal Entry and that the order to return him to [the Trumbull Correctional Institution] be cancelled, permitting him to remain at [the jail] while his Petition for Post-Conviction relief was pending * * *." Austin ended this motion by arguing that the judicial explanation is crucial because the transfer to the jail prevented him from timely filing his App.R. 26(B) application to reopen, which requires good cause to justify untimely filing.
{¶ 6} When the respondent judge did not take further actions on these motions, Austin commenced this mandamus action.
{¶ 7} In response, the judge, through the Cuyahoga County Prosecutor, moved for summary judgment on the grounds of mootness. Attached to this dispositive motion were certified copies of (1) the judge's August 29, 2019 order granting the motion for a journal entry, returning him to the Trumbull Correctional Institution and noting that his postconviction relief petition was pending and (2) a November 13, 2019 journal entry denying his postconviction relief petition with attached findings of fact and conclusions of law, and declaring his motion to set the record straight and correct case docket and his motion for the court to take judicial notice of pertinent facts are moot.
{¶ 8} In his brief in opposition to the judge's dispositive motion, Austin argues that these rulings on the subject motions are insufficient because the judge did not grant him the relief he sought, explanatory and corrective journal entries. Indeed, the judge characterized the first motion as a "Motion for a journal entry (to return to Trumbull Correctional Inst.)" Austin asserts that this ignored the truth of the motion and provided the need for the subsequent motions so that journal would speak the truth. Ruling the other subject motions as moot ignores the substance of those motions and the need to have the record speak the truth. Finally, Austin complains that the judge did not sign the findings of fact and conclusions of law for his postconviction relief petition, rendering the matter still open.
{¶ 9} 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).
{¶ 10} Moreover, the court has discretion in issuing mandamus. In State ex rel. Pressley v. Indus. Comm. of Ohio, 11 Ohio St.2d 141, 228 N.E.2d 631 (1967), paragraph seven of the syllabus, the Supreme Court of Ohio ruled that "in considering the allowance or denial of the writ of mandamus on the merits, [the court] will exercise sound, legal and judicial discretion based upon all the facts and circumstances in the individual case and the justice to be done." The court elaborated that in exercising that discretion the court should consider
the exigency which calls for the exercise of such discretion, the nature and extent of the wrong or injury which would follow a refusal of the writ, and other facts which have a bearing on the particular case. * * * Among the facts and circumstances which the court will consider are the applicant's rights, the interests of third persons, the importance or unimportance of the case, the applicant's conduct, the equity and justice of the relator's case, public policy and the public's interest, whether the performance of the act by the respondent would give the relator any effective relief, and whether such act would be impossible, illegal, or useless.11 Ohio St.2d at 161-162. State ex rel. Bennett v. Lime, 55 Ohio St.2d 62, 378 N.E.2d 152 (1978).
{¶ 11} The respondent judge's rulings on the three subject motions fulfilled her duty to resolve them. To compel the respondent to re-rule on those motions and provide Austin with the explanations and corrections he seeks would be to control judicial discretion, and mandamus may not be used to control judicial discretion. Ney, supra, at 119 and State ex rel. Rodgers v. Cuyahoga Cty. Court of Common Pleas, 83 Ohio App.3d 684, 615 N.E.2d 689 (8th Dist.1992). For example, Austin in his second and third motions clarified that he wished to remain in Cuyahoga County during the pendency of his postconviction relief petition and were made at least in part, to effect that. Thus, a judge could conclude that resolving the postconviction relief petition rendered those motions moot. To require a judge through mandamus to revisit those motions and expand the scope of the rulings would be to control judicial discretion.
{¶ 12} This court further notes that generally a court does not have to give findings of fact and conclusions of law when ruling on a motion; a summary decision is usually enough. Moreover, any error in ruling on a motion is remedied through appeal, and not an extraordinary writ. State ex rel. Brady v. Russo, 8th Dist. Cuyahoga No. 89552, 2007-Ohio-3277; State ex rel. Jefferson v. Russo, 8th Dist. Cuyahoga No. 90682, 2008-Ohio-135; and State ex rel. Peterson v. Cuyahoga Cty. Common Pleas Court Judge, 8th Dist. Cuyahoga No. 95479, 2010-Ohio-4501.
{¶ 13} Austin's complaint about the judge not signing the findings of fact and conclusions of law for his postconviction relief petition is not well taken. First, Austin did not and could not plead in his mandamus complaint that the findings of fact and conclusions of law were insufficient. Thus, that issue is beyond the scope of this mandamus action. Furthermore, as shown by the docket, the judge's signature and the file stamp on the first page of her order cover the findings of fact and conclusions of law.
{¶ 14} Accordingly, this court grants the respondent's motion for summary judgment and denies the application for a writ of mandamus. Relator to pay costs. 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).
{¶ 15} Writ denied. /s/_________
ANITA LASTER MAYS, JUDGE PATRICIA ANN BLACKMON, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR