[Cite as In re Wesley v. Cuyahoga Cty. Court of Common Pleas, 2020-Ohio-4921.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE NELSON ROY WESLEY, :
Relator, :
No. 109930
v. :
CUYAHOGA COUNTY COURT OF
COMMON PLEAS, :
Respondent. :
JOURNAL ENTRY AND OPINION
JUDGMENT: WRIT DENIED
DATED: October 9, 2020
Writ of Mandamus
Motion No. 541138
Order No. 541463
Appearances:
Nelson Roy Wesley, pro se.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and James E. Moss, Assistant Prosecuting
Attorney, for respondent.
KATHLEEN ANN KEOUGH, J.:
Relator, Nelson Roy Wesley, seeks a writ of mandamus directing
respondent, the Cuyahoga County Common Pleas Court, and more specifically,
Judge John D. Sutula, to rule on pending motions to reinstate bond and to allow
relator to be bailable. For the reasons that follow, we deny the requested writ.
I. Factual and Procedural Background
On September 8, 2020, relator filed a complaint for writ of
mandamus. There, he alleged that he was being held in Cuyahoga County Jail
awaiting trial in State v. Wesley, Cuyahoga C.P. No. CR-18-628491-A on charges of
failure to comply and criminal damaging (the “failure to comply case”). He alleged
that he was released on bond in this case. He failed to attend a pretrial because he
was serving a short term of incarceration for violating terms of his postrelease
control. His bond was revoked, but later reinstated. Bond was again revoked
because he was unable to attend a pretrial hearing as a result of being arrested and
indicted in a separate case, State v. Wesley, Cuyahoga C.P. No. CR-19-639908.1
There, he was charged with attempted murder, felonious assault, and various other
crimes (the “attempted murder case”). A $100,000 bond was set in that case.
Through counsel, relator filed three motions to reinstate bond in the
failure to comply case. Relator alleged that the first motion was filed on August 21,
2019. In the motion, relator argued that bond should be reinstated in this case
because he was involuntarily absent from a pretrial hearing because he had been
arrested and was in jail in Cleveland Heights. He further asserted that once bond
1 Relator was initially indicted in Cuyahoga C.P. No. CR-18-634238-A, but the
charges in that case were later dismissed without prejudice and a superseding indictment
was filed.
was reinstated in the failure to comply case, he could then post bond in the
attempted murder case. According to the complaint, respondent denied that
motion on October 21, 2019.
Thereafter, relator filed two additional motions to reinstate bond on
February 13, 2020, and June 17, 2020. Relator asserts that no rulings on these two
pending motions have been journalized. In his second claim for relief, he asks this
court to issue a writ of mandamus directing respondent to rule on these pending
motions.
Relator further asserts in his first claim for relief that because of a
serious heart condition and the dangers posed by being jailed without the possibility
of bail during a pandemic, this court should issue a writ of mandamus directing
respondent to “[p]romptly refrain from its action of revoking the petitioner’s bond
* * * and perform its public duty of allowing the petitioner the specific right to be
bailable.”
On September 10, 2020, this court sua sponte issued an alternative
writ directing respondent to show cause by September 17, 2020, why a writ of
mandamus should not issue to compel respondent to rule on the pending motions.
We also, sua sponte, denied relator’s request to direct respondent to reinstate bond
because a writ of mandamus could not be used to control judicial discretion.
On September 15, 2020, respondent filed a response to the show
cause order, arguing that the action is now moot. Respondent asserted that the
pending motions to reinstate bond were denied on September 15, 2020, and
attached a certified copy of the journal entry and opinion. Respondent also filed a
motion for summary judgment. There, he asserted that the second claim for relief
was moot because rulings on relator’s two motions to reinstate bond had been
entered. Respondent also argued that he was entitled to judgment on relator’s first
claim for relief because mandamus could not be used to control judicial discretion.
On September 28, 2020, relator filed a brief in opposition to
respondent’s motion for summary judgment. Relator also sought reconsideration
of our decision dismissing his first claim for relief.
II. Law and Analysis
The present action is before this court on respondent’s motion for
summary judgment. Pursuant to Civ.R. 56,
summary judgment is warranted if (1) no genuine issue as to any
material fact remains to be litigated, (2) the moving party is entitled to
judgment as a matter of law, and (3) viewing the evidence most strongly
in favor of the nonmoving party, reasonable minds can reach a
conclusion only in favor of the moving party.
State ex rel. Jackson v. Ambrose, 151 Ohio St.3d 536, 2017-Ohio-8784, 90 N.E.3d
922, ¶ 14, citing Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d
267 (1977). Respondent has the burden of demonstrating that there is no genuine
issue of material fact and judgment must be rendered in his favor as a matter of law.
Id.
A. Rulings on Motions to Reinstate Bond
A writ of mandamus is an extraordinary remedy that will issue when
relators successfully demonstrate, by clear and convincing evidence, (1) that they
possess a clear legal right to the requested relief, (2) that respondent has a clear legal
duty to provide the requested relief, and (3) they possess no other adequate remedy
in the ordinary course of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d
28, 29, 451 N.E.2d 225 (1983), quoting State ex rel. Harris v. Rhodes, 54 Ohio St.2d
41, 42, 374 N.E.2d 641 (1978). A writ of mandamus may be used to require a judge
to issue a ruling on a particular matter, but may not be used to control what decision
is issued. Patterson v. Cuyahoga Cty. Common Pleas Court, 8th Dist. Cuyahoga
No. 107755, 2019-Ohio-110, ¶ 13, quoting State ex rel. Ney v. Niehaus, 33 Ohio St.3d
118, 119, 515 N.E.2d 914 (1987), citing R.C. 2731.03; State ex rel. Sawyer v.
O’Connor, 54 Ohio St.2d 380, 377 N.E.2d 494 (1978). That is, mandamus may not
be used to control judicial discretion. State ex rel. Williams v. Sieve, 130 Ohio St.3d
207, 2011-Ohio-5258, 957 N.E.2d 12, ¶ 1, citing State ex rel. Avery v. Union Cty.
Court of Common Pleas, 125 Ohio St.3d 35, 2010-Ohio-1427, 925 N.E.2d 969, ¶ 1.
Further, where relators seek to compel a respondent to issue a ruling,
and during the course of the action the respondent issues such a ruling, the relators
have then received all the relief to which they are entitled. The action, therefore,
becomes moot. State ex rel. Williams v. Croce, 153 Ohio St.3d 348, 2018-Ohio-
2703, 106 N.E.3d 55, ¶ 7.
Respondent has issued rulings on relator’s pending motions.
Therefore, relator has received the relief requested in his second claim, and this
claim is moot.
B. Reconsideration
Relator asks this court to reconsider our decision sua sponte
dismissing his first claim for relief in mandamus. Relator claims that he is not
seeking to control judicial discretion, but seeks only to have respondent fulfill his
legal obligation to make relator bailable. He claims that if the trial court denies the
motion to reinstate bond, then respondent has a legal duty to set a new bond.
This court’s ruling is interlocutory in nature and subject to
reconsideration. See Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 379, 423
N.E.2d 1105 (1981), fn. 1. Therefore, we will address the first claim for relief in this
opinion.
Relator’s first claim for relief is not one that is capable of being
achieved in mandamus. It was sua sponte dismissed in this court’s September 10,
2020 journal entry. A claim is subject to dismissal, sua sponte, when “it appears
beyond doubt, after presuming the truth of all material factual allegations of
[relator’s] complaint and making all reasonable inferences in its favor, that [relator]
is not entitled to the requested extraordinary relief in mandamus.” State ex rel.
JobsOhio v. Goodman, 133 Ohio St.3d 297, 2012-Ohio-4425, 978 N.E.2d 153, ¶ 12,
citing State ex rel. Johnson v. Richardson, 131 Ohio St.3d 120, 2012-Ohio-57, 961
N.E.2d 187, ¶ 12.
As set forth previously, mandamus may not be used to control judicial
discretion, even where that discretion is grossly abused. State ex rel. Ney v.
Niehaus, 33 Ohio St.3d 118, 119, 515 N.E.2d 914 (1987). “Thus, mandamus does not
lie to correct errors and procedural irregularities in the course of a case.” State ex
rel. Scott v. Gall, 8th Dist. Cuyahoga No. 109325, 2020-Ohio-929, ¶ 7, citing State
ex rel. Jerninghan v. Gaughan, 8th Dist. Cuyahoga No. 67787, 1994 Ohio App.
LEXIS 6227 (Sept. 26, 1994).
A trial judge is vested with discretion by Crim.R. 46(E) and (I) to
amend the terms and conditions of bond following violations of such conditions,
including the revocation of bond as provided by law. State v. Smith, 2d Dist.
Montgomery No. 28265, 2019-Ohio-5015, ¶ 42-43.
In a remarkably similar case brought as a petition for writ of habeas
corpus, the Seventh District found that a trial court was within its discretion in
revoking and not reinstating bond in a case after the defendant was charged in
another case with several serious felonies, including attempted murder. In re
Mason, 116 Ohio App.3d 451, 454, 688 N.E.2d 552 (7th Dist.1996). The court
determined that “[w]here an accused is free on bail, * * * and the court determines
that the accused has violated conditions of bail, whether the conditions be express
or implied, the accused is subject to the court’s sanctioning authority for violation of
the conditions, including revocation of bail bond.” Id. at 454. Accord State v.
Kremer, 12th Dist. Warren Nos. CA2017-07-115 and CA2017-07-116, 2018-Ohio-
3339, ¶ 25-26 (finding that a trial court was within its discretion to revoke bail when
a defendant was indicted on new charges). These cases establish that a trial judge
has discretion to revoke bond in circumstances similar to relator’s. Such discretion
may not be controlled through a writ of mandamus.
Relator claims that he is entitled to reasonable bail under Article I,
Section Nine of the Ohio Constitution and the Eighth Amendment to the United
States Constitution. He further claims that respondent has a legal duty to allow
relator to post bond. However, habeas corpus is an appropriate means to address
the terms and conditions of bond. Jenkins v. Billy, 43 Ohio St.3d 84, 85, 538 N.E.2d
1045 (1989), citing State v. Bevacqua, 147 Ohio St. 20, 67 N.E. 2d 786 (1946). This
court has previously held that “[i]n Ohio, the writ of habeas corpus protects the right
to reasonable bail.” Periandri v. McFaul, 142 Ohio App.3d 588, 591, 756 N.E.2d
682 (8th Dist.2001), citing In re Gentry, 7 Ohio App.3d 143, 454 N.E.2d 987 (6th
Dist.1982). Relief in habeas corpus is also the appropriate remedy if relator is being
“‘unlawfully restrained of his liberty.’” Smith v. Leis, 165 Ohio App.3d 581, 2006-
Ohio-450, 847 N.E.2d 485, ¶ 7 (1st Dist.), quoting R.C. 2725.01.
If relator has a claim for relief, it lies in habeas corpus, not
mandamus.2 Further, this court cannot treat this claim for relief as sounding in
habeas corpus. State ex rel. Goodgame v. Russo, 8th Dist. Cuyahoga No. 97347,
2012-Ohio-92, ¶ 3 (“to the extent that Goodgame is arguing a denial of bond or
excessive bail, the proper remedy in Ohio is a writ of habeas corpus which has very
2 However, relief in habeas corpus is not assured.In a similar case, the Sixth District
found that a trial court has discretion to revoke bond and hold a defendant in custody
pending trial where the defendant violated conditions of bond. The court held that “having
established that the trial court had both jurisdiction and authority to find that appellant
violated the conditions of his bond and to revoke the bond, we find that petitioner is not
entitled to a writ of habeas corpus.” Fortner v. Sigsworth, 6th Dist. Lucas No. L-12-1175,
2012-Ohio-3609, ¶ 11.
different pleading requirements than a writ of mandamus”). Such “claims can be
maintained only against the jailer or warden who presently has legal custody of the
individual.” Hamilton v. Collins, 11th Dist. Lake No. 2003-L-094, 2003-Ohio-4104,
¶ 3. See also Carman v. Croucher, 8th Dist. Cuyahoga No. 109291, 2020-Ohio-498,
¶ 7, citing Whitman v. Shaffer, 8th Dist. Cuyahoga No. 94486, 2010-Ohio-446, ¶ 3.
Relator has only named the Cuyahoga County Common Pleas Court
as respondent in this action ─ not the jailer or warden who has legal custody over
him. The failure to name the appropriate official as a respondent in an action for
habeas corpus requires dismissal. State ex rel. Sherrills v. State, 91 Ohio St.3d 133,
742 N.E.2d 651 (2001); Carman at id.
Based on these grounds, relator’s motion for reconsideration is
denied. This court’s sua sponte dismissal of relator’s first claim for relief was not
incorrectly decided.
Therefore, respondent’s motion for summary judgment is granted.
Relator’s second claim for relief is moot in light of respondent’s ruling on the
pending motions. Relator’s first claim for relief was sua sponte dismissed, and
relator’s arguments for reconsideration provide no reason for reversing that
decision. Costs to respondent; costs waived. The clerk is directed to serve upon the
parties notice of this judgment and its date of entry upon the journal. Civ.R. 58(B).
Writ denied.
_______________________________
KATHLEEN ANN KEOUGH, JUDGE
SEAN C. GALLAGHER, P.J., and
MARY EILEEN KILBANE, J., CONCUR