The State ex rel. Sands, Appellant,
Culotta, Judge, et al., Appellees.
Submitted September 10, 2019
from the Court of Appeals for Lake County, No. 2018-L-004,
A. Sands, pro se.
Charles E. Coulson, Lake County Prosecuting Attorney, and
Michael L. DeLeone, Assistant Prosecuting Attorney, for
1} Appellant, Joseph A. Sands, appeals the judgment
of the Eleventh District Court of Appeals dismissing his
petition for a writ of mandamus. We affirm the judgment.
2} In 2015, Sands filed various motions seeking to
vacate the 20-year prison sentence that he received in 2006.
The court of appeals vacated Sands's sentence in part and
remanded the case for a new sentencing hearing. State v.
Sands, 11th Dist. Lake No. 2015-L-134, 2016-Ohio-7150.
On remand, the trial court held a hearing and issued a nunc
pro tunc entry to correct an error in the imposition of
postrelease control. The court of appeals affirmed. State
v. Sands, 11th Dist. Lake No. 2016-L-124,
3} In January 2018, Sands filed a petition for a
writ of mandamus, naming appellees, Lake County Court of
Common Pleas Judge Vincent A. Culotta and Lake County
Prosecuting Attorney Charles E. Coulson, as respondents.
Sands did not state a claim against Coulson. As to Judge
Culotta, Sands claimed that the nunc pro tunc entry was not a
final, appealable order because it did not contain the manner
of conviction and the sentence, in violation of Crim.R.
32(C). Sands sought to compel Judge Culotta to hold a new
sentencing hearing and to issue a final, appealable order.
4} In March 2019, the court of appeals granted
appellees' motion to dismiss Sands's petition under
Civ.R. 12(B)(6) for two reasons: (1) the petition was
procedurally defective because the affidavit of indigency did
not contain a statement of the balance in Sands's inmate
account and (2) Sands had an adequate remedy at law by way of
direct appeal. Sands appealed.
5} To be entitled to a writ of mandamus, Sands must
establish (1) a clear legal right to the requested relief,
(2) a clear legal duty on appellees' part to provide it,
and (3) the lack of an adequate remedy in the ordinary course
of the law. See State ex rel. Waters v. Spaeth, 131
Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6.
6} A court may dismiss a mandamus action under
Civ.R. 12(B)(6) for failure to state a claim upon which
relief can be granted "if, after all factual allegations
of the complaint are presumed true and all reasonable
inferences are made in the relator's favor, it appears
beyond doubt that he can prove no set of facts entitling him
to the requested writ of mandamus." State ex rel.
Russell v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858,
856 N.E.2d 966, ¶ 9. This court reviews dismissals under
Civ.R. 12(B)(6) de novo. State ex rel. McKinney v.
Schmenk, 152 Ohio St.3d 70, 2017-Ohio-9183, 92 N.E.3d
871, ¶ 8.
7} When an inmate commences a civil action in the
court of appeals against a government entity and seeks a
waiver of filing fees, as Sands did, he is required to submit
an affidavit of indigency that includes (1) a statement
certified by the institutional cashier setting forth the
balance in the inmate's account for each of the preceding
six months and (2) a statement that sets forth all other cash
and things of value owned by the inmate at the time of
filing. R.C. 2969.25(C). Failure to comply with ...