State ex rel. Lazaro Delgado v. Court of Common Pleas, Cuyahoga County, Ohio, Case, 98-LW-0450
| Decision Date | 05 February 1998 |
| Docket Number | 98-LW-0450,73341 |
| Parties | STATE OF OHIO, EX REL. LAZARO DELGADO, Relator v. COURT OF COMMON PLEAS, CUYAHOGA COUNTY, OHIO, Respondent CASE |
| Court | Ohio Court of Appeals |
PETITION FOR WRIT OF MANDAMUS
For Relator: LAZARO DELGADO, Pro Se, No. 304-397 Madison Correctional Inst., P. O. Box 740, London, Ohio 43140-0740.
For Respondent: STEPHANIE TUBBS-JONES, Cuyahoga County Prosecutor, GEORGE J. SADD, Assistant, Justice Center, Courts Tower, 1200 Ontario Street, Cleveland, Ohio 44113.
PATRICIA A. BLACKMON, A.J.
On October 14, 1997, the petitioner, Lazaro Delgado, commenced this action, which he styled as a mandamus and captioned as State of Ohio v. Lazaro Delgado. He characterizes the state as "Plaintiff-Respondent-Appellant.r, The exact relief which Mr. Delgado seeks is difficult to discern. On the front page of his "writ" he requests that "in this case on appeal herein * * * he be allowed documents from and surrounding his case." These records apparently come from the underlying case, State of Ohio v. Lazaro Delgado, Cuyahoga County Common Pleas Court Case No. Cr-330443 and a case from Lorain County. In addition to having the documents and affidavits from those cases be made part of the record in Cuyahoga App. No. 72288, an appeal of a denial of a postconviction relief petition, Mr. Delgado also seeks to have these documents sent to him in prison. In his supporting memorandum he affirms that this filing is intended to be a mandamus and that he wants this court to compel the common pleas court to send him documents, affidavits and the transcript of hearing of a plea held on March 18, 1996. He then states that he asked the trial court to send him these records "but was never allowed copies of them for preparation * * *." Next, he states that he is seeking affidavits from the attorneys who represented him in the underlying case and the Lorain County case, that they promised him affidavits and that they never fulfilled those promises. In the next paragraph Mr. Delgado alleges that he wants records from the prosecutor, including "affidavits, phone conversations, letters, etc...." These he is seeking through Crim. R. 16(B) and R.C. 149.43, the Ohio Public Records Act. In his next paragraph he states that he wants this court to compel the depositions of the trial judge, the prosecutor and his defense attorneys for his appeal. Thus, in summary, Mr. Delgado may be asking for some or all of the following: completing the appellate record, sending him the record, compelling a ruling on motions, compelling his former lawyers to complete affidavits, compelling discovery in a criminal case, compelling release of public records and compelling depositions.
On November 4, 1997, the "respondent" through the Cuyahoga County Prosecutor moved to dismiss this writ action. This motion argues that the transcripts from the underlying case have been sent to him by order of this court, that this court has no power to compel Mr. Delgado's former attorneys to provide him with records, that all discoverable materials have already been disclosed and that Crim R. 15(A) does not permit deposing prosecutors, judges and defense counsel. Mr. Delgado never filed a response. For the following reasons, this court grants the motion to dismiss. 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 (1987), 33 Ohio St.3d 118, 515 N.E.2d 914. Furthermore, mandamus is not a substitute for appeal. State ex rel. Keenan v. Calabrese (1994), 69 Ohio St.3d 176, 631 N.E.2d 119; State ex rel. Daggett v. Gessman (1973), 34 Ohio St.2d 55, 295 N.E.2d 659; and State ex rel. Pressley v. Industrial Commission of Ohio (1967), 11 Ohio St.2d 141, 228 N.E.2d 631, Paragraph Three of the Syllabus. Moreover, mandamus is an extraordinary remedy which 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 (1977), 50 Ohio St.2d 165, 364 N.E.2d 1; State ex rel. Shafer v. Ohio Turnpike Commission (1953), 159 Ohio St. 581, 113 N.E.2d 14; State ex rel. Connole v. Cleveland Board of Education (1993), 87 Ohio App.3d 43, 621 N.E.2d 850; and State ex rel. Dayton-Oakwood Press v. Dissinger (1940), 32 Ohio Law Abs. 308.
First, Mr. Delgado incorrectly captioned his action. R.C. 2731.04 requires that an application for the writ of mandamus must be in the name of the state on the relation of the person applying. This failure to caption the action properly is sufficient grounds for denying the writ and dismissing the petition. Maloney v. Court of Common Pleas of Allen County (1962), 173 Ohio St. 226, 181 N.E.2d 270; State ex rel. Dennis Calloway v. Cuyahoga County Court of Common Pleas (Aug. 21, 1997), Cuyahoga App. No. 71652, unreported.
Furthermore, failing to properly caption the case creates confusion as to who is the proper respondent and exactly what rights or duties Mr. Delgado seeks to enforce. Is the respondent the Cuyahoga County Common Pleas Court, the Lorain County Common Pleas Court, the trial judge in the underlying case, the prosecutor, his former defense lawyers, and/or the State of Ohio generally or some political subdivision thereof. Because a special writ should not issue in uncertain cases, this action is properly dismissed for this additional reason.
Additionally, Mr. Delgado has failed to support his complaint with an affidavit "specifying the details of the claim," as required by Local Rule 8(B)(1). State ex rel. Simmons v. Angelotta (June 12, 1997), Cuyahoga App. No. 72198, unreported.
Moreover, mandamus does not lie for the various requested reliefs Mr. Delgado may be trying to seek. To the extent that he seeks to complete the record in his appellate case, Appellate Rule 9(E) provides a complete and adequate remedy. State ex rel. Hester v. Crush (1996), 75 Ohio St.3d 563, 664 N.E.2d 930; State ex rel. Fant v. Trumbo (1986), 22 Ohio St.3d 207, 484 N.E.2d 1316.
Mr. Delgado's next possible claim is that he wants this court to compel the trial court "to allow [him] in [his appellate case] DOCUMENTS, AFFIDAVITS, TRANSCRIPTS FROM HEARING OF PLEA HELD ON MARCH 18, 1996, and in order that he * * * might properly prepare his appeal in this court." Next, he says that he asked the trial court for these records, but was not allowed them. Again, this claim is problematic because it is not clear whether he wants the appellate record completed or modified or whether he wants physical possession of the records to inspect while preparing his appellate brief or whether he wishes this court to compel the trial court to rule on motions for records.
To the extent that Mr. Delgado seeks to have this court compel the trial court to physically send him certain records, mandamus will not lie for such a request because whether and which records to send is within the discretion of the trial court. Mandamus may not control judicial discretion. Also, the matter is moot because on September 8, 1997, in Appellate Case No. 72288, this court granted Mr. Delgado's motion to send him the transcripts for his use at the prison under the supervision of the warden. To...
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