State ex rel. Paige v. Sweeney

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[Cite as State ex rel. Paige v. Sweeney, 2019-Ohio-5089.] IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY STATE OF OHIO, ex rel. MICHAEL L. PAIGE, Relator, v. JUDGE MAUREEN A. SWEENEY, COMMON PLEAS COURT JUDGE, Respondent. OPINION AND JUDGMENT ENTRY Case No. 18 MA 0130 Writ of Mandamus BEFORE: Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges. JUDGMENT: Dismissed. Michael L. Paige, Pro se, Inmate No. 693-310, Lake Erie Correctional Institution, P.O. Box 8000, Conneaut, Ohio 44030, for Relator. Atty. Paul J. Gains, Mahoning County Prosecutor and Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Respondent. Dated: December 5, 2019 –2– PER CURIAM. {¶1} Relator Michael Paige, proceeding on his own behalf, has filed this original action for a writ of mandamus asking this Court to compel Respondent Judge Maureen A. Sweeney of the Mahoning County Common Pleas Court to conduct a resentencing hearing on the imposition of postrelease control, as instructed by this Court in State v. Paige, 7th Dist. Mahoning No. 17 MA 0146, 2018-Ohio-2782. Counsel for Respondent has filed a combined answer and motion to dismiss demonstrating that Respondent has already conducted the hearing and has filed an amended judgment entry of sentencing. {¶2} The salient facts relating to Relator’s underlying conviction and sentence can be found in our decision on Relator’s direct appeal in State v. Paige, 7th Dist. Mahoning No. 17 MA 0033, 2019-Ohio-1088, appeal not allowed, 156 Ohio St.3d 1464, 2019-Ohio-2892, 126 N.E.3d 1164. A jury convicted Relator on one count of murder in violation of R.C. 2903.02(A)(D), an unclassified felony, with a firearm specification in violation of R.C. 2941.145(A) (count two), and one count of tampering with evidence in violation of R.C. 2921.12(A)(1)(B), a felony of the third degree (count three). On January 24, 2017, the trial court sentenced Relator to life imprisonment with parole eligibility after fifteen years on the murder conviction, three years for tampering with evidence, to be served concurrently with the sentence imposed for murder, and three years for the firearm specification, to be served consecutively to the sentence imposed on the murder charge. {¶3} Following his conviction and sentencing, Relator filed a motion regarding his sentencing on August 25, 2017 which the trial court construed as a petition for postconviction relief. In this motion, Relator argued that his sentencing entry was void Case No. 18 MA 0130 –3– because it stated that he was convicted of murder, when he was actually convicted of felony murder. He also argued his conviction violated due process because the state failed to prove the mens rea element of the underlying felony for felony murder. Lastly, Relator alluded to prejudicial error stemming from his postrelease control sentence. {¶4} The trial court denied Relator’s petition as untimely. He appealed to this Court in State v. Paige, 7th Dist. Mahoning No. 17 MA 0146, 2018-Ohio-2782. We concluded that we were procedurally barred from addressing Relator’s first two constitutional claims. Because he failed to present any evidence dehors the record with his petition for postconviction relief, these claims were required to be raised in the direct appeal of his conviction and sentence. However, we did determine that as his judgment entry of sentence did not include the statutorily-mandated term of postrelease control it was rendered void, noting that this error may be reviewed at any time by collateral attack. Because the trial court failed to properly impose postrelease control at the sentencing hearing, this Court remanded the matter to the trial court on June 29, 2018, for a new sentencing hearing limited only to the imposition of postrelease control and issuance of a new sentencing entry. On November 20, 2018, Relator filed this original action in mandamus seeking to have this Court compel the trial court to proceed with the instructions contained in our June 29, 2018 decision. {¶5} Generally, a relator may file an original action for a writ of mandamus or for a writ of procedendo to compel a court to rule on a pending matter. A writ of mandamus is an extraordinary remedy which should be exercised by this Court with caution and issued only when the right to relief is clear. State ex rel. Brown v. Ashtabula Cty. Bd. of Elections, 142 Ohio St.3d 370, 2014-Ohio-4022, 31 N.E.3d 596, ¶ 11. Entitlement to a Case No. 18 MA 0130 –4– writ of mandamus requires the relator to demonstrate: (1) a clear legal right to the relief, (2) a clear legal duty on the respondent to provide that relief, and (3) no other adequate remedy at law. State ex rel. Taxpayers for Westerville Schools v. Franklin Cty. Bd. of Elections, 133 Ohio St.3d 153, 2012-Ohio-4267, 976 N.E.2d 890, ¶ 12. {¶6} As counsel for Respondent accurately contends in the combined answer and motion to dismiss, Respondent filed an amended judgment entry of sentence on December 14, 2018, shortly after Relator brought this action. Respondent has attached as an exhibit to the combined answer and motion to dismiss a copy of the trial court’s December 14, 2018 amended judgment entry of sentence demonstrating it carried out the instructions set forth in our June 29, 2018 decision. Therefore, Relator’s request for this Court to issue a writ of mandamus is moot. Neither procedendo nor mandamus will compel performance of a duty that has already been performed. Martin v. Judges of the Lucas Cty. Court of Common Pleas, 50 Ohio St.3d 71, 72, 552 N.E.2d 906 (1990). As such, Relator’s original action seeking a writ of mandamus is hereby dismissed. {¶7} Costs taxed against Relator. Final order. Clerk to serve copies of this decision and judgment entry pursuant to the civil rules. JUDGE CHERYL L. WAITE JUDGE GENE DONOFRIO JUDGE CAROL ANN ROBB Case No. 18 MA 0130 –5– Case No. 18 MA 0130

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