[Cite as State ex rel. Bradley v. Astrab, 2012-Ohio-4610.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98529



                              STATE OF OHIO, EX REL.
                                ALBERT BRADLEY

                                                                RELATOR

                                                       vs.

                             JUDGE MICHAEL ASTRAB
                                                                RESPONDENT




                                     JUDGMENT:
                                 COMPLAINT DISMISSED


                                            Writ of Mandamus
                                            Motion No. 456169
                                            Order No. 458604

RELEASE DATE: October 1, 2012
FOR RELATOR

Albert Bradley, pro se
Inmate No. 0101001
Cuyahoga County Jail
P.O. Box 5600
Cleveland, Ohio 44101


ATTORNEYS FOR RESPONDENT

Timothy J. McGinty
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

       {¶1} On June 15, 2012, the relator, Albert Bradley, commenced this mandamus

action against the respondent, Judge Michael Astrab, to compel the judge to comply with

Ohio’s speedy trial act, R.C. 2945.71 through 2945.73, in the underlying case, State v.

Bradley, Cuyahoga C.P. No. CR-559416.1 On June 20, 2012, the respondent judge filed

a motion to dismiss, inter alia, on the grounds of procedural defects and adequate remedy

at law. On June 29, 2012, Bradley filed his objections to the respondent’s dispositive

motion.     On July 6, 2012, Bradley filed two “affidavits” in an effort to cure the

procedural defects. For the following reasons, this court grants the respondent’s motion to

dismiss and dismisses the application for a writ of mandamus.

       {¶2} The docket in the underlying case shows that Bradley was arrested on

February 1, 2012, and charged with felonious assault and domestic violence. The trial

court set bail at $25,000, but the docket indicates that Bradley never posted bond. The


       1  Bradley’s demand for judgment in his complaint is not entirely clear. Throughout his
pleadings, he complains that there were no reasons given for continuances; that his trial date was set
92 days after his arrest and incarceration; that his counsel did not properly represent him; that he did
not consent to the continuances; and that the respondent judge did not resolve his speedy trial
motions. Then, in the demand for judgment, he prays “that this court guides the trial court in the
proper way to resolve this matter, and that a peremptory writ of mandamus issue immediately
requiring the respondent to perform the duty imposed on him * * *.” Thus, this court is not certain
whether Bradley seeks a dismissal of the charges, rulings on his motions, or a statement of the reasons
for the continuances.
docket further shows that Bradley requested discovery on March 6, 2012, to which the

prosecutor replied on March 16, 2012, and that several times the trial judge made journal

entries that continued pretrials at defendant’s request, but these entries did not specify a

reason for the continuance. Twice, on April 2 and April 16, 2012, the judge issued

entries continuing the proceedings at the state’s request; on these occasions, the judge

specified the reasons — discovery and the unavailability of the prosecutor.

       {¶3} On May 3, 2012, the judge set the trial for July 16, 2012, “at the request of

the defendant.” On the same day, Bradley filed the first of his motions for speedy trial

and to discharge for lack of prosecution. On May 7, he filed a “motion to justify

continuance.” Subsequently, the judge specified reasons for the continuances in his

journal entries. For example, on July 16, 2012, the judge continued the trial to July 23,

2012, because the victim appeared for the first time and the medical records were

incomplete. Bradley filed another motion to dismiss based on speedy trial on July 12,

2012, and a motion to amend the motion to dismiss on July 19.

       {¶4} On July 23, 2012, the judge, with a court reporter present, called the case for

trial and conducted a hearing on Bradley’s motion to dismiss for lack of a speedy trial.

In his journal entry, the court ruled:

       The parties placed on the record arguments relating to the defendant’s
       motion to dismiss on speedy trial grounds. The court conducted an
       independent review of the docket and made a determination that the
       defendant had 17 days remaining on his speedy trial time, which would give
       the state of Ohio until 8/9/12 to try this defendant. The court did not
       calculate the defendant’s writ of mandamus nor any pro se motions filed by
       the defendant relating to the speedy trial issue into the calculation. As
       such, the defendant’s motion to dismiss is denied.
In this same order the trial judge also granted Bradley’s motion for a new attorney with

Bradley’s explicit understanding that such a move would toll the speedy trial time.

       {¶5} In this mandamus action, Bradley seeks to compel the respondent judge to do

his “duty of complying with Ohio Revised Code 2945.71 through 2945.73.” First, he

complains that the judge did not set a trial date until 92 days after Bradley’s arrest and

that he did so without showing the necessity and reasonableness of such action. To show

the impropriety of this action, Bradley relies on State v. Mincy, 2 Ohio St.3d 6, 441

N.E.2d 571 (1982), which held that a “trial court must enter the order of continuance and

the reasons therefore by journal entry prior to the expiration of the time limits prescribed

in R.C. 2945.71 for bringing a defendant to trial.” Id. at 7.

       {¶6} Bradley then complains that the other orders continuing the proceedings did

not specify the reasons as required for a valid continuance. State v. Siler, 57 Ohio St.2d 1,

384 N.E.2d 710 (1979). He also questions why his defense counsel assented to such

apparent improper orders, especially when he did not consent to such actions. Finally,

Bradley states that he asked these questions “to no avail” in his various motions. Bradley

finishes by demanding “that this court guides [sic] the trial court in the proper way to

resolve this matter, and that a peremptory writ of mandamus issue immediately requiring

the respondent to preform [sic] the duty imposed on him * * *.”

       {¶7} 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. Keenan v.

Calabrese, 69 Ohio St.3d 176, 631 N.E.2d 119 (1994); and 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. Thus, mandamus does not lie to correct errors and procedural irregularities in

the course of a case. State ex rel. Jerninghan v. Gaughan, 8th Dist. No. 67787, 1994

Ohio App. LEXIS 6227 (Sept. 26, 1994). 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); and State ex rel. Connole v. Cleveland Bd. of Edn., 87 Ohio App.3d 43, 621

N.E.2d 850 (8th Dist.1993).

       {¶8} In Pressley, paragraph seven of the syllabus, the Supreme Court of Ohio

ruled that “in considering the allowance or denial of the writ of mandamus on the merits,

[the court] will exercise sound, legal and judicial discretion based upon all the facts and

circumstances in the individual case and the justice to be done.” The court elaborated

that, in exercising that discretion, the court should consider

       the exigency which calls for the exercise of such discretion, the nature and
       extent of the wrong or injury which would follow a refusal of the writ, and
       other facts which have a bearing on the particular case. * * * Among the
       facts and circumstances which the court will consider are the applicant’s
       rights, the interests of third persons, the importance or unimportance of the
       case, the applicant’s conduct, the equity and justice of the relator’s case,
          public policy and the public’s interest, whether the performance of the act
          by the respondent would give the relator any effective relief, and whether
          such act would be impossible, illegal, or useless.

Pressley at 161-162.

          {¶9} In the present case, mandamus will not issue because appeal is the proper

remedy for addressing speedy trial issues.      State ex rel. Dix v. Angelotta, 18 Ohio St.3d

115, 480 N.E.2d 407 (1985); and State ex rel. Hamilton v. Brunner, 105 Ohio St.3d 304,

2005-Ohio-1735, 825 N.E.2d 607.           Furthermore, Bradley’s own authorities, such as

Mincy and Siler, support this principle. In those cases, the courts addressed the speedy

trial issues, not through an extraordinary writ, but on appeal.

          {¶10} To the extent that Bradley seeks rulings on his motions, this court notes that

the respondent judge conducted a hearing on the speedy trial motions and denied the

motion to dismiss. This court further notes that, since the filing of the mandamus action,

the judge has been stating reasons for the continuances. Thus, it appears that the trial

court has considered and resolved the outstanding motions, even if it has not issued an

explicit ruling on each motion. Thus, this court declines to issue a writ of mandamus to

compel the judge to resolve matters he has already considered.        Additionally, this court

further declines to issue a writ of mandamus to compel explicit rulings on certain motions

when the vagueness of the demand makes it uncertain that the relator is seeking such

relief.

          {¶11} Additionally, the relator failed to support his complaint with an affidavit

“specifying the details of the claim,” as required by Loc.App.R. 45(B)(1)(a). State ex
rel. Leon v. Cuyahoga Cty. Court of Common Pleas, 123 Ohio St.3d 124,

2009-Ohio-4688, 914 N.E.2d 402. Bradley tried to submit such an affidavit in his last

filing, but it was not notarized. The failure to notarize rendered the affidavit ineffective.

Chari v. Vore, 91 Ohio St.3d 323, 2001-Ohio-49, 744 N.E.2d 763.

       {¶12} Similarly, Bradley submitted a notarized affidavit to fulfill his requirements

under R.C. 2969.25 for the prior lawsuit affidavit and a proper poverty affidavit with a

cashier’s statement. However, he did not file those at the commencement of his lawsuit.

A subsequent filing does not cure the defect, and the case is subject to dismissal. Hazel

v. Knab, 130 Ohio St.3d 22, 2011-Ohio-4608, 955 N.E.2d 378.

       {¶13} Accordingly, the court grants the respondent’s motion to dismiss. Relator to

pay costs. This court directs the clerk of court to serve all parties notice of this judgment

and its date of entry on the journal. Civ.R. 58(B).

       {¶14} Complaint dismissed.



FRANK D. CELEBREZZE, JR., JUDGE

MELODY J. STEWART, P.J., and
JAMES J. SWEENEY, J., CONCUR
