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State ex. rel. Malenda v. Coletta

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 20, 2019

STATE OF OHIO, EX REL., GREGORY M. MALENDA, Relator,
v.
DOMINIC J. COLETTA, JUDGE, Respondent.

          Writs of Mandamus and Procedendo Motion No. 529363 Order No. 530336

         JUDGMENT WRITS DENIED

          Gregory M. Malenda, pro se.

          Paul T. Murphy and Raymond J. Schmidlin, Jr., for respondent.

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR., J.:

         {¶ 1} Relator, Gregory M. Malenda, claims entitlement to writs of mandamus and procedendo[1] because respondent, Judge Dominic J. Coletta, has denied his "motion[s] for sentence to be ran concurrent and a warrant recall for failure of the trial court to strictly and substantially comply with O.R.C. 292941, 294140, and 294141." He asks this court to order respondent to enter concurrent sentences imposed between various criminal cases and recall a warrant. Malenda's complaint is fatally and procedurally defective and fails to set forth a claim that can be addressed in mandamus or procedendo. And, even if a valid claim was advanced, there is an adequate remedy at law. Therefore, the request for writs of mandamus and procedendo are denied.

         I. Factual and Procedural History

         {¶ 2} There are no factual allegations in the complaint to explain the history of the underlying criminal case that is the subject of this action. However, the attached docket of a criminal case against Malenda in the Lyndhurst Municipal Court indicates that he was convicted of falsification, a first-degree misdemeanor. Lyndhurst v. Malenda, Lyndhurst M.C. No. 15-CRB-00830. The docket shows that on April 18, 2016, Malenda was sentenced to a suspended jail term of 180 days. On August 26, 2016, a notice of probation violation was entered on the docket and a warrant was issued. This warrant was subsequently recalled, but this process repeated itself over the next two years.

         {¶ 3} On February 11, 2019, and March 5, 2019, Malenda filed "motions to recall warrant and/or license forfeiture." Respondent denied both motions. On March 18, 2019, Malenda filed a "motion for sentence to run concurrent." That motion was also denied by respondent.

         {¶ 4} Then, on April 15, 2019, Malenda filed the instant complaint. Respondent filed an answer on May 15, 2019, followed by a motion for summary judgment on June 13, 2019. Relator did not file a brief in opposition to summary judgment.

         II. Law and Analysis

         A. Standards for Mandamus and Procedendo

         {¶ 5} "To be entitled to a writ of mandamus, the relator must establish, by clear and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the respondent to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law." State ex rel Zander v. Judge of Summit Cty. Common Pleas Court, Slip Opinion No. 2019-Ohio-1704, ...


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