[Cite as State ex rel. Scott v. Burnside, 2024-Ohio-452.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE EX REL. CLINTON R. :
SCOTT, JR.,
Relator, :
No. 113399
v. :
JUDGE JANET BURNSIDE, :
Respondent. :
JOURNAL ENTRY AND OPINION
JUDGMENT: WRIT DENIED
DATED: February 6, 2024
Writ of Mandamus
Motion No. 570275
Order No. 570901
Appearances:
Clinton R. Scott, Jr., pro se.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and James E. Moss, Assistant Prosecuting
Attorney, for respondent.
LISA B. FORBES, P.J.:
Relator, Clinton R. Scott, Jr., seeks a writ of mandamus directing
respondent, Judge Daniel Gaul, who was substituted in this action by Judge Janet
Burnside,1 to release relator from any period of postrelease control that was imposed
in an underlying criminal case. For the reasons set forth in this opinion,
respondent’s motion for summary judgment is granted and the request for relief in
mandamus is denied.
I. Factual and Procedural History
On November 21, 2023, relator filed the instant complaint for writ of
mandamus. There, he alleged that in an unidentified criminal case, respondent
sentenced relator to a prison sentence that included a period of postrelease control.
Relator alleges that respondent “ruled on my case. Sentence [sic] to a max term.
Gave all my time. [Respondent Gaul] is the one to set it right.” Relator then
requested that this court issue a writ of mandamus directing respondent to relieve
relator of postrelease control. The complaint also alleged that on June 27, 2023,
relator filed a motion to terminate postrelease control, but does not further
reference this motion in his request for relief. Instead, relator requests that this
court order respondent to vacate any period of postrelease control imposed in the
unidentified underlying criminal case.
1 During the pendency of these proceedings and after respondent Gaul filed a motion
for summary judgment, respondent Gaul was suspended from the practice of law and
immediately suspended from his judicial position. Disciplinary Counsel v. Gaul, Slip
Opinion No. 2023-Ohio-4751. Pursuant to App.R. 29(C)(1), the action does not abate, and
respondent’s temporary successor, Judge Janet Burnside, was automatically substituted as
a party to these proceedings.
Respondent filed a motion for summary judgment on December 8,
2023.2 There, respondent alleged that the claims raised in the complaint were
barred by res judicata. Respondent went on to argue that relator’s convictions and
sentences in State v. Scott, Cuyahoga C.P. No. CR-13-576163-A were affirmed in an
appeal, precluding this collateral attack on the judgment. Respondent further
argued that relator had an adequate remedy at law and the complaint was
procedurally defective. For all those reasons, respondent requested the denial of the
requested relief. Relator did not timely file a brief in opposition to respondent’s
motion for summary judgment.
II. Law and Analysis
Relator seeks a writ of mandamus directing respondent to remove
any period of postrelease control imposed in an underlying criminal case. Relator
does not request an order directing respondent to proceed to judgment on the
motion he alleged he filed on June 27, 2023.3 Therefore, our analysis will be limited
to relator’s requested relief.
2 The docket in the present case indicates that service of the complaint was not
perfected. However, respondent has actively participated in this litigation by filing a
motion for summary judgment without raising adequacy of service of process or lack of
jurisdiction as a defense. Therefore, respondent has waived service and subjected himself
to the jurisdiction of this court. See Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio
St.3d 141, 2007-Ohio-3762, 870 N.E.2d 714.
3 A review of the docket in the underlying criminal case indicates that respondent
denied this motion on July 6, 2023, rendering moot any claim for relief in mandamus to
proceed to judgment on this motion. A court may take judicial notice of a docket publicly
available over the internet that is outside of the pleadings to determine if a claim for relief
is moot. State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, 874
N.E.2d 516, ¶ 10.
A writ of mandamus is available when relators demonstrate by clear
and convincing evidence that they possess a legal right to the requested relief and
the respondent has a clear legal duty to provide that relief. State ex rel. Schroeder
v. Cleveland, 150 Ohio St.3d 135, 2016-Ohio-8105, 80 N.E.3d 417, ¶ 13, citing State
ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6.
Further, an extraordinary writ of mandamus may only be used where a relator has
no other adequate remedy in the ordinary course of the law. Id. Finally, a writ of
mandamus may not be used to control judicial discretion. State ex rel. Dreamer v.
Mason, 115 Ohio St.3d 190, 2007-Ohio-4789, 874 N.E.2d 510, ¶ 12, citing State ex
rel. Rashada v. Pianka, 112 Ohio St.3d 44, 2006-Ohio-6366, 857 N.E.2d 1220, ¶ 3.
The present matter is before this court on respondent’s motion for
summary judgment. According to Civ.R. 56(C), summary judgment is appropriate
when, construing the evidence most strongly in favor of the nonmoving party, “(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) it appears from the evidence that
reasonable minds can come to but one conclusion, and * * * that conclusion is
adverse to [the nonmoving] party.” Temple v. Wean United, Inc., 50 Ohio St.2d 317,
327, 364 N.E.2d 267 (1977).
A. Right to Relief and a Clear Legal Duty
In order to succeed, relator must establish that he has a clear right to
the requested relief and respondent has a clear legal duty to provide that relief.
According to the complaint, relator seeks to have respondent vacate any period of
postrelease control that respondent has previously imposed in an underlying
criminal case. Relator has not identified any legal right he has to that requested
relief or any legal duty that would require respondent to vacate a period of
postrelease control that was imposed in the underlying criminal case. Relator only
argues that respondent imposed a maximum term of imprisonment. The certified
copy of the sentencing entry, authenticated by affidavit and attached to respondent’s
motion for summary judgment, indicates that relator did not receive a maximum
sentence. But even if relator had received a maximum prison sentence, he is still
subject to postrelease control.
The sentencing entry attached to respondent’s motion to dismiss
contains a notification of a mandatory five-year period of postrelease control and
the potential consequences of violating the terms of postrelease control. A trial court
has no discretion to impose or not impose postrelease control for the first-degree-
felony offenses of which relator was convicted. R.C. 2967.28(B) provides:
Each sentence to a prison term, other than a term of life imprisonment,
for a felony of the first degree, for a felony of the second degree, for a
felony sex offense, or for a felony of the third degree that is an offense
of violence and is not a felony sex offense shall include a requirement
that the offender be subject to a period of post-release control imposed
by the parole board after the offender’s release from imprisonment.
This division applies with respect to all prison terms of a type
described in this division, including a term of any such type that is a
risk reduction sentence. If a court imposes a sentence including a
prison term of a type described in this division on or after July 11, 2006,
the failure of a sentencing court to notify the offender pursuant to
division (B)(2)(d) of section 2929.19 of the Revised Code of this
requirement or to include in the judgment of conviction entered on the
journal a statement that the offender’s sentence includes this
requirement does not negate, limit, or otherwise affect the mandatory
period of supervision that is required for the offender under this
division. This division applies with respect to all prison terms of a type
described in this division, including a non-life felony indefinite prison
term.
(Emphasis added.)
Under the statute, relator’s sentence is one that required a period of
postrelease control. Respondent had a duty to inform relator of postrelease control
during a criminal sentencing hearing. See State v. Bates, 167 Ohio St.3d 197, 2022-
Ohio-475, 190 N.E.3d 610. Relator does not allege that postrelease control was not
validly imposed. He states, without support, that it must be vacated because he
received a maximum sentence.
Relator’s citation in his complaint to several cases without
explanation do not provide support for his claim. He cited a case that held that relief
in habeas corpus was not available to challenge the proper calculation of jail-time
credit. Heddleston v. Mack, 84 Ohio St.3d 213, 702 N.E.2d 1198 (1998). He also
cited inapposite cases that do not deal with the issues raised in this action. State v.
Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982) (an appeal involving
constructive versus actual possession of stolen property); State v. Messer, 107 Ohio
App.3d 51, 667 N.E.2d 1022 (9th Dist.1995) (an appeal involving the operability of
a firearm for proof necessary for a firearm specification, exclusion of testimony, and
double jeopardy related to a separate period of incarceration for a firearm
specification); and State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d
470 (an appeal holding sentencing statutes unconstitutional that required judicial
factfinding for the imposition of sentences greater than the minimum), superseded
by statute as recognized by State v. Sergent, 148 Ohio St.3d 94, 2016-Ohio-2696,
69 N.E.3d 627, ¶ 35-36. These cases do not provide any basis for the requested relief.
Therefore, respondent has no legal duty — in fact no authority — to
relieve relator from any period of postrelease control included in the sentencing
entry. Relator has not identified any source of authority or duty for respondent to
vacate postrelease control. Relator is not entitled to a writ of mandamus.
B. Adequate Remedy at Law
A writ of mandamus will not issue where a relator possesses or
possessed an adequate remedy at law, such as appeal. State ex rel. Kerns v.
Simmers, 153 Ohio St.3d 103, 2018-Ohio-256, 101 N.E.3d 430. “For a remedy at law
to be adequate, the remedy should be complete in its nature, beneficial and speedy.”
State ex rel. Liberty Mills, Inc. v. Locker, 22 Ohio St.3d 102, 104, 488 N.E.2d 883
(1986), citing State ex rel. Merydith Constr. Co. v. Dean, 95 Ohio St. 108, 123, 116
N.E. 37 (1916). Appeal from final judgment generally constitutes an adequate
remedy at law. State ex rel. LTV Steel Co. v. Gwin, 64 Ohio St.3d 245, 248-249, 594
N.E.2d 616 (1992).
Here, respondent attached a certified copy of relator’s sentencing
entry from his underlying criminal case that was journalized on January 16, 2014.
In that entry, respondent imposed a five-year period of postrelease control. If that
period of postrelease control was imposed in error, relator could have challenged it
on direct appeal. Therefore, relator possessed an adequate remedy at law to
challenge the alleged error he now seeks to address in an action for an extraordinary
writ. 4 This is not the rare case where extraordinary relief is required because relator
possesses or possessed no other adequate remedy.
C. The Complaint is Procedurally Defective
Relator’s complaint is also procedurally defective, requiring the
denial of the requested relief. The complaint indicates that relator is currently an
inmate in a state correctional institution. As such, he must comply with
R.C. 2969.25 when filing a civil action or appeal from a civil action against a
governmental agency or employee. R.C. 2969.25(A).
R.C. 2969.25(C) requires an inmate who wishes to waive the filing fee
when initiating an action against a governmental agency or employee to file an
affidavit of indigency and an affidavit from the cashier of the state correctional
institution certifying the balance in the inmate account for the proceedings six
months. Relator did not pay the filing fee and attached an affidavit of indigency to
his complaint. However, relator did not attach an affidavit from the institutional
cashier. Relator attached an affidavit, which appears to be such a notarized
statement, but the affidavit is signed by relator, not by the institutional cashier. The
signature line of the affidavit is labeled as “signature of authorized officer.”
4 A review of the docket of the underlying case shows that relator filed a motion to
terminate postrelease control on June 27, 2023. Respondent denied the motion on July 6,
2023. Relator does not address why the filing of this motion and appeal from an adverse
ruling does not also constitute an adequate remedy at law, which would also preclude relief
in mandamus.
However, this line bears relator’s signature, not that of the institutional cashier or
authorized representative of the institutional cashier. Therefore, relator has not
strictly complied with R.C. 2969.25(C). Strict compliance is necessary. State ex rel.
Ellis v. Wainwright, 157 Ohio St.3d 279, 2019-Ohio-2853, 135 N.E.3d 761, ¶ 7.
For these reasons, respondent’s motion for summary judgment is
granted. Relator’s request for writ of mandamus is denied. Costs assessed against
relator. The clerk is directed to serve on the parties notice of this judgment and its
date of entry upon the journal. Civ.R. 58(B).
Writ denied.
_____________________________
LISA B. FORBES, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
MARY J. BOYLE, J., CONCUR