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State ex rel. Sands v. Court of Common Pleas Judge

Court of Appeals of Ohio, Eleventh District, Lake

November 13, 2017

STATE OF OHIO ex rel. JOSEPH A. SANDS, Relator,
v.
COURT OF COMMON PLEAS JUDGE, Respondent.

         Original Action for Writ of Mandamus.

          Joseph A. Sands, pro se, PID: A664-601, Marion Correctional Institution, P.O. ox 57, 940 Marion-Williamsport Rd., Marion, OH 43302 (Relator).

          Charles E. Coulson, Lake County Prosecutor, and Micheal L DeLeone, Assistant Prosecutor, Lake County Administration Building, (For Respondent).

          OPINION

          PER CURIAM.

         {¶1} Relator, Joseph A. Sands, petitions this court for a writ of mandamus, directed to the Hon. Vincent A. Culotta, the judge of the Lake County Court of Common Pleas who presided over the trial resulting in relator's present incarceration. Judge Culotta has moved to dismiss the petition, or for summary judgment. For the reasons following, we dismiss the petition.

         {¶2} In State v. Sands, 11th Dist. Lake No. 2015-L-134, 2016-Ohio-7150, ¶2-4, appeal not accepted, State v. Sands, 149 Ohio St.3d 1419, 2017-Ohio-4038, we wrote:

         {¶3} "In November 2006, Mr. Sands was found guilty, following jury trial, of one count of engaging in a pattern of corrupt activity, a felony of the first degree; three counts of conspiracy to commit aggravated murder, felonies of the first degree; and two counts of conspiracy to commit aggravated arson, felonies of the first degree. See State v. Sands, 11th Dist. Lake No. 2007-L-003, 2008-Ohio-6981, ¶23 (Sands I'"). For sentencing purposes, the trial court merged the conspiracy counts, and sentenced Mr. Sands to ten years imprisonment on the count of engaging in a pattern of corrupt activity, and ten years for conspiracy, the counts to be served consecutively, for a total term of imprisonment of 20 years. Id. The convictions arose from Mr. Sands' plot to murder Painesville Municipal Court Judge Michael Cicconetti, North Perry Police Chief Denise Mercsak, North Perry Mayor Tom Williams, and North Perry Prosecutor Joseph Gurley. Id. at ¶6.

         {¶4} "Mr. Sands appealed, and this court affirmed. Sands I at ¶195. The Supreme Court of Ohio denied a motion for delayed appeal. State v. Sands, 127 Ohio St.3d 1443, 2010-Ohio-5762.

         {¶5} "Mr. Sands was also tried and convicted on federal charges stemming from his plot. He was sentenced on those charges to ten years of imprisonment."

         {¶6} Since his conviction, Mr. Sands has filed numerous actions in both state and federal court, generally without success.

         {¶7} "This court has jurisdiction to hear an original mandamus action pursuant to Article IV, Section 3(B)(1) of the Ohio Constitution and R.C. 2731.02. In order to be entitled to a writ of mandamus a relator must establish (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the respondent to provide such relief, and (3) the lack of an adequate remedy in the ordinary course of law. State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447, 448, * * * The burden is on the relator to establish the elements to obtain the writ. State ex rel. Dehler v. Sutula (1995), 74 Ohio St.3d 33, 34, * * *." (Parallel citations omitted.) State ex rel. Cochran v. Boardman Twp. Bd. of Trustees, 196 Ohio App.3d 185, 2011-Ohio-4255, ¶6 (7th Dist.)

         {¶8} Relator bears the burden of showing a clear legal right to the relief requested in mandamus. Cochran, supra, at ¶6. We have read relator's petition carefully, and repeatedly. He does not request any relief. From the nature of the issues presented, we surmise he believes he was unfairly convicted, and wishes release from prison, immediately. But we are not required to surmise what relief relator desires. He must tell us, so we can determine if such relief is available. For this reason alone, we dismiss the petition.

         {¶9} Further, mandamus will not lie in a criminal case if the relief desired could have been obtained on direct appeal. State ex rel. Maxwell v. Kainrad, 11th Dist. Portage No. 2004-P-0042, 2004-Ohio-5458, ¶10. Relator presents the following issues in his petition:

         {¶10} He asserts his conspiracy convictions merged for sentencing purposes; that his sentence for conspiracy has expired; and that he is being held on an illegal ...


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