Ohio Cases May 01, 2019: State v. McGookey

Case Description

DECISION AND JUDGMENT

Danielle C. Kulik, for petitioner.

OSOWIK , J.

{¶ 1} This matter is before the court on relator Anthony L. Ross's petition for a writ of mandamus. Ross seeks an order from this court, compelling the respondent, Hon. Beverly McGookey of the Erie County Court of Common Pleas, to rule on his February 21, 2019 "Motion for Satisfaction of Judgment" in State v . Ross , Erie C.P. No. 2003-CR-0257.

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{¶ 2} In that case, Ross pled guilty and was convicted of multiple drug offenses, including possession and trafficking in cocaine, marijuana and heroin. He was sentenced to serve "4 years in prison - 2 years of which is Mandatory" on December 21, 2004. (Ex. A). Ross was then "granted bond and instructed to report to [the] Sandusky County Jail on December 24, 2004, but [he] apparently absconded, resulting in his bond being forfeited." (Ex. B). The docket for the case confirms that a bench warrant was issued for Ross on January 5, 2005. Ross was "subsequently * * * convicted" in four separate drug cases in Michigan. On August 28, 2007, he was sentenced to serve between 2 years, 10 months and 20 years in prison by the Macomb County Circuit Court. On September 20, 2007, he was sentenced to serve between 12 and 30 years in prison by the Wayne County Circuit Court. (Ex. C). According to Ross, the Michigan sentences were ordered to be served concurrently. (Ex. C).

{¶ 3} In his "Motion for Satisfaction of Judgment" that is the subject of the instant action, Ross argues that there is a presumption in Ohio in favor of concurrent sentences and that this presumption necessitates a finding that he satisfied his four year Ohio sentence "by September 25, 2011" while serving time in a Michigan prison. Further, he claims that he was due for release as to his Michigan convictions on March 12, 2019, but remains incarcerated there "for the [Ohio] case." Ross seeks an order from this court compelling respondent to rule on his motion "and release" him from his Michigan prison cell.

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{¶ 4} Entitlement to a writ of mandamus requires the relator to demonstrate: (1) he has a clear legal right to the relief, (2) the respondent has a clear legal duty to provide that relief, and (3) relator has no 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. A writ of mandamus is an extraordinary remedy which should be exercised with caution and issued only when the right 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.

{¶ 5} Here, Ross seeks an order compelling respondent to act on his motion. The Ohio Supreme Court's Rules of Superintendence 40(A)(3) states that "[a]ll motions shall be ruled upon within one hundred twenty days from the date the motion was filed * * *." While the Rules of Superintendence do not provide litigants with a right to enforce Sup.R. 40, "'procedendo and mandamus will lie when a trial court has refused to render, or unduly delayed rendering, a judgment.'" State ex rel . Brown v . Luebbers , 137 Ohio St.3d 542, 2013-Ohio-5062, 1 N.E.3d 395, ¶ 14, quoting State ex rel . Culgan v . Collier , 135 Ohio St. 3d 436, 2013-Ohio-1762, 988 N.E.2d 564, ¶ 10.

{¶ 6} Ross filed his mandamus petition before this court only 54 days after filing the motion for satisfaction of judgment. Thus, at the time he filed the petition, the 120 days set forth Sup.R. 40(A)(3) had yet to elapse, making his petition premature. Accord State ex rel . Cromwell v . Dellick , 7th Dist. Mahoning No. 17 MA 0047, 2017-Ohio-7564, ¶ 7 (Dismissing mandamus action where the petition was filed 35 days after motion was

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filed, rendering petition "premature."). Therefore, under Sup.R. 40(A)(3), it cannot be said that respondent has "refused to render" or "unduly delayed rendering" a judgment as to Ross's motion for satisfaction of judgment. Accordingly, Ross cannot show that he has a clear legal right to the relief requested or that respondent has a legal duty to grant that relief.

{¶ 7} Based upon our review, we would also add that Ross has failed to provide any evidence to support his claim that he was "due for release on March 12, 2019" by the Michigan Department of Corrections and/or that the department continues to hold him with respect to his Ohio case. Likewise, Ross has failed to explain how respondent, when the court does decide Ross's motion, would have any authority to order his release from a Michigan prison.

{¶ 8} For all of the above reasons, we dismiss, sua sponte, Ross's petition for a writ of mandamus. Costs are taxed against relator. Clerk to serve notice upon the parties as provided by the Civil Rules.

Writ denied.

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Arlene Singer, J.

Thomas J. Osowik, J.

Christine E. Mayle, P.J.
CONCUR.

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JUDGE

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