State ex rel. Carnail v. McCormick

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[Cite as State ex rel. Carnail v. McCormick, 2009-Ohio-3884.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 93524 STATE OF OHIO, EX REL., E YEN CARNAIL RELATOR vs. HON. TIMOTHY MCCORMICK, JUDGE RESPONDENT JUDGMENT: WRIT DENIED WRIT OF MANDAMUS MOTION NO. 424141 ORDER NO. 424750 RELEASE DATE: August 4, 2009 2 FOR RELATOR E'yen Carnail, pro se Inmate No. 378-992 Richland Correctional Institution P.O. Box 8107 Mansfield, Ohio 44901-8107 ATTORNEYS FOR RESPONDENT William D. Mason Cuyahoga County Prosecutor BY: James E. Moss Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 COLLEEN CONWAY COONEY, A.J.: {¶ 1} On June 25, 2009, E Yen Carnail filed a complaint in mandamus against Judge Timothy McCormick1 asking this court to order Judge McCormick to conduct a new sentencing hearing in the matter of State v. Carnail, Cuyahoga County Court of Common Pleas Case No. CR-372072, so that the proper requirements of postrelease control may be added. In the alternative, Carnail requests this court to order Judge McCormick to issue a final appealable order that Carnail can appeal. On July 13, 2009, Judge McCormick, through the Cuyahoga County Prosecutor, filed 1 Carnail also named the Cuyahoga County Court of Common Pleas in his original complaint, but pursuant to Carnail s motion to amend the caption of his complaint, the Court was removed as a respondent. 3 a motion to dismiss that was opposed by Carnail. For the following reasons, we grant the motion to dismiss. {¶ 2} In order for this court to issue a writ of mandamus, Carnail must establish that he has a clear legal right to the requested relief; that the respondent has a clear legal duty to perform the requested relief; and there is no adequate remedy at law. State ex rel. Manson v. Morris (1993), 66 Ohio St.3d 440, 613 N.E.2d 232, citing State ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28, 451 N.E.2d 225. Moreover, mandamus is an extraordinary remedy that is to be exercised with caution and only when the right is clear. The duty to be enforced by a writ of mandamus must be specific, definite, clear and unequivocal. State ex rel. Karmasu v. Tate (1992), 83 Ohio App.3d 199, 205, 614 N.E.2d 827. It should not be issued in doubtful cases. State ex rel. Taylor v. Glasser (1977), 50 Ohio St.2d 165, 364 N.E.2d 1; State ex rel. Shafer v. Ohio Turnpike Comm. (1953), 159 Ohio St. 581, 113 N.E.2d 14; State ex rel. Cannole v. Cleveland Bd. of Edn. (1993), 87 Ohio App.3d 43, 621 N.E.2d 850. {¶ 3} Additionally, if a relator had an adequate remedy at law, regardless of whether it was used, relief in mandamus is precluded. State ex rel. Tran v. McGrath, 78 Ohio St.3d 45, 1997-Ohio-245, 676 N.E.2d 108; State ex rel. Boardwalk Shopping Ctr., Inc. v. Court of Appeals for Cuyahoga Cty. (1990), 56 Ohio St.3d 33, 564 N.E.2d 86; State ex rel. Provolone Pizza, LLC v. Callahan, Cuyahoga App. No. 4 88626, 2006-Ohio-660; State ex rel. Grahek v. McCafferty, Cuyahoga App. No. 88614, 2006-Ohio-4741. {¶ 4} As stated by the Supreme Court of Ohio, sentencing errors by a court that had proper jurisdiction cannot be remedied by extraordinary writ. State ex rel. Jaffal v. Calabrese, 105 Ohio St.3d 440, 2005-Ohio-2591. Furthermore, Carnail has or had adequate remedies at law by way of appeal or postconviction relief. Id., citing Smith v. Walker, 83 Ohio St.3d 431, 1998-Ohio-30. The existence of adequate remedies at law prohibit us from granting the writ. {¶ 5} We also deny Carnail s alternative request. A review of the lower court docket reveals that Judge McCormick issued a final appealable order when he denied Carnail s motion to correct illegal sentence on December 9, 2008. Consequently, Carnail s alternative request is moot. State ex rel. Gantt v. Coleman (1983), 6 Ohio St.3d 5, 450 N.E.2d 1163; State ex rel. Jerningham v. Cuyahoga Cty. Court of Common Pleas (1996), 74 Ohio St.3d 278, 658 N.E.2d 723. {¶ 6} Accordingly, we grant the motion to dismiss. Costs to relator. It is further ordered that the clerk shall serve upon all parties notice of this judgment and date of entry pursuant to Civ.R. 58(B). Complaint dismissed. COLLEEN CONWAY COONEY, ADMINISTRATIVE JUDGE SEAN C. GALLAGHER, J., and FRANK D. CELEBREZZE, JR., J., CONCUR

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