State ex rel. Flakes v. Russo

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[Cite as State ex rel. Flakes v. Russo, 2009-Ohio-6474.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 94044 STATE OF OHIO EX REL., ARIYEN FLAKES RELATOR vs. JUDGE JOSEPH RUSSO RESPONDENT JUDGMENT: WRIT DENIED Writ of Mandamus Motion No. 427683 and 427739 Order No. 428747 RELEASE DATE: December 9, 2009 2 FOR RELATOR Ariyen Flakes, pro se Inmate No. 562-729 Belmont Correctional Inst. P. O. Box 540 St. Clairsville, Ohio 43950 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 KENNETH A. ROCCO, J.: {¶ 1} On October 6, 2009, the relator, Ariyen Flakes, commenced this mandamus action against the respondent, Judge Joseph Russo, to compel the judge to grant him all the proper jail-time credit to which he is due in the underlying cases, State v. Flakes, Cuyahoga County Common Pleas Court Case Nos. CR-487424 and CR-492623. Flakes asserts he is entitled to 269 days of credit. On October 26, 2009, the respondent, through the Cuyahoga County Prosecutor, moved for summary judgment on the grounds of mootness and pleading deficiencies. On October 27, 2009, the prosecutor submitted an amended motion for summary judgment which attached journal entries from the 3 underlying cases. Flakes did not timely file a response. 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 cases in 2008, Flakes pleaded guilty to drug trafficking, and the trial court sentenced him to three years. In the sentencing entries, the trial court granted him 95 days of jail-time credit. On April 8, 2009, Flakes filed a motion for jail-time credit in the underlying cases. On April 17, 2009, the judge in both cases granted him an additional 20 days, for a total of 115 days of credit. Flakes then commenced this mandamus action to get the proper credit. {¶ 3} 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 (1987), 33 Ohio St.3d 118, 515 N.E.2d 914. Furthermore, mandamus is not a substitute for appeal. State ex rel. Keenan v. Calabrese (1994), 69 Ohio St.3d 176, 631 N.E.2d 119; State ex rel. Daggett v. Gessaman (1973), 34 Ohio St.2d 55, 295 N.E.2d 659; and State ex rel. Pressley v. Indus. Comm. of Ohio (1967), 11 Ohio St.2d 141, 228 N.E.2d 631, paragraph three of the syllabus. 4 Furthermore, if the relator had an adequate remedy, 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, and State ex rel. Boardwalk Shopping Center, Inc. v. Court of Appeals for Cuyahoga Cty. (1990), 56 Ohio St.3d 33, 564 N.E.2d 86. 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 (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. Connole v. Cleveland Bd. of Edn. (1993), 87 Ohio App.3d 43, 621 N.E.2d 850; and State ex rel. Dayton-Oakwood Press v. Dissinger (1940), 32 Ohio Law Abs. 308. {¶ 4} A defendant who is imprisoned, is entitled by law to have credited to his sentence of incarceration the number of days that he was confined prior to conviction and sentence. R.C. 2949.08; R.C. 2949.12; R.C. 2967.191; and State ex rel. Sanchez v. Cuyahoga County Common Pleas Court (May 22, 1997), Cuyahoga App. No. 72085. In addition, a trial court has the clear legal duty to specify in the record of conviction and sentence the number of days a defendant was confined prior to conviction. Ohio Adm. Code 5120-2-04(B); State ex rel. Rankin v. Ohio Adult Parole Authority, 98 Ohio St.3d 476, 2003-Ohio-2061, 786 N.E.2d 1286; and State ex rel. Corder v. Wilson (1991), 68 Ohio App.3d 567, 589 5 N.E.2d 113. Once the trial court has specified the number of days of credit, appeal is the proper remedy to correct any error. Corder and Rankin. {¶ 5} In the present case, the respondent judge fulfilled his duty by specifying the number of days of jail-time credit in the sentencing entry and by granting further jail-time credit in resolving Flakes April 8, 2009 motions. The judge s determination of the amount of jail-time credit was an exercise of discretion for which Flakes has or had an adequate remedy at law through appeal. Therefore, Flakes cannot satisfy the requisites for mandamus. {¶ 6} Additionally, the relator failed to support his complaint with an affidavit specifying the details of the claim as required by Local Rule 45(B)(1)(a). State ex rel. Wilson v. Calabrese (Jan. 18, 1996), Cuyahoga App. No. 70077, and State ex rel. Smith v. McMonagle (July 17, 1996), Cuyahoga App. No. 70899. {¶ 7} Although Flakes submitted a poverty affidavit citing R.C. 2969.25, he did not attach the required statement from the prison cashier stating the amount of money in Flakes prison account for the last six months. These are sufficient reasons to deny the writ and assess costs against Flakes. {¶ 8} Accordingly, the court grants the respondent s motion for summary judgment and denies the writ. Costs assessed against the relator. 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). 6 KENNETH A. ROCCO, PRESIDING JUDGE MARY EILEEN KILBANE, J., and FRANK D. CELEBREZZE, JR., J., CONCUR

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