Court of Appeals of Ohio, Eighth District, Cuyahoga
of Mandamus Motion No. 517763 Order No. 519196
BOBO, PRO SE SOUTHERN OHIO CORRECTIONAL FACILITY
ATTORNEYS FOR RESPONDENT MICHAEL C. O'MALLEY CUYAHOGA
COUNTY PROSECUTOR BY: JAMES E. MOSS ASSISTANT COUNTY
PROSECUTOR THE JUSTICE CENTER
PATRICIA ANN BLACKMON, JUDGE.
On May 7, 2018, the relator, Karlos Bobo, commenced this
mandamus action to compel the respondent to grant his
"motion to vacate and/or set aside void conviction or
sentence," which he filed on September 5, 2017, in the
underlying case, State v. Bobo, Cuyahoga C.P. No.
CR-87-223936-ZA. Bobo contends that because he was a juvenile
at the subject time and because there was no bindover
hearing, the trial court had no jurisdiction over his case,
and his conviction and sentence are void ab initio. On May
22, 2018, the respondent, through the Cuyahoga County
Prosecutor, moved for summary judgment. Attached to the
dispositive motion was a journal entry, file-stamped May 10,
2018, in which the trial court denied the subject motion.
Bobo never filed a response. For the following reasons, this
court grants the motion for summary judgment and denies the
application for a writ of mandamus.
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, 33 Ohio St.3d 118, 515 N.E.2d 914
(1987). Furthermore, mandamus is not a substitute for appeal.
State ex rel. Daggett v. Gessaman, 34 Ohio St.2d 55,
295 N.E.2d 659 (1973); State ex rel. Pressley v. Indus.
Comm. of Ohio, 11 Ohio St.2d 141, 228 N.E.2d 631 (1967),
paragraph three of the syllabus. 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; State ex rel. Boardwalk Shopping Ctr., Inc. v. Court
of Appeals for Cuyahoga Cty., 56 Ohio St.3d 33, 564
N.E.2d 86 (1990). 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, 50 Ohio St.2d 165,
364 N.E.2d 1 (1977).
To the extent Bobo sought a ruling on his motion to vacate,
the matter is moot. The May 10, 2018 journal entry
establishes that the trial court fulfilled its duty and Bobo
received his requested relief, a ruling on the motion. To the
extent that Bobo sought to compel the trial court to grant
the motion, the claim is ill-founded. Neither the writ of
mandamus nor the writ of procedendo can control judicial
discretion. Bobo's proper remedy is now an appeal.
Bobo also did not comply with R.C. 2969.25(C), which requires
that an inmate file a certified statement from his prison
cashier setting forth the balance in his private account for
each of the preceding six months. This also is sufficient
reason to deny the mandamus, deny indigency status, and
assess costs against the relator. State ex rel. Pamer v.
Collier, 108 Ohio St.3d 492, 2006-Ohio-1507, 844 N.E.2d
842; State ex rel. Hunter v. Cuyahoga Cty. Court of
Common Pleas, 88 Ohio St.3d 176, 2000-Ohio-285, 724
N.E.2d 420; and Hazel v. Knab, 130 Ohio St.3d 22,
2011-Ohio-4608, 955 N.E.2d 378 - the defect may not be cured
by subsequent filings.
Accordingly, this court grants the respondent's motion
for summary judgment and denies the application for a writ of
mandamus. Relator to pay costs. This court directs the clerk
of courts to serve all parties notice of this judgment and
its date of entry upon the journal as required by Civ.R.