Court of Appeals of Ohio, Eighth District, Cuyahoga
STATE OF OHIO, EX REL., GREGORY M. MALENDA, Relator,
DOMINIC J. COLETTA, JUDGE, Respondent.
of Mandamus and Procedendo Motion No. 529363 Order No. 530336
Gregory M. Malenda, pro se.
T. Murphy and Raymond J. Schmidlin, Jr., for respondent.
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR., J.:
1} Relator, Gregory M. Malenda, claims entitlement to writs
of mandamus and procedendo 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.
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
Law and Analysis
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,