[Cite as Frett v. State, 2013-Ohio-5441.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                   Nos. 100241 and 100304




                               DEMETRIOUS A. FRETT
                                                       PETITIONER

                                                 vs.


                               STATE OF OHIO, ET AL.
                                                       RESPONDENTS




                                             JUDGMENT:
                                            WRITS DENIED


                                Writs of Mandamus and Procedendo
                              Motion Nos. 468506, 468417, and 469298
                                         Order No. 469764


        RELEASE DATE:                December 10, 2013
FOR RELATOR

Demetrious A. Frett, pro se
Inmate No. 620-151
P.O. Box 901
Trumbull Correctional Institution
Leavittsburg, Ohio 44430

ATTORNEYS FOR RESPONDENTS

Timothy J. McGinty
Cuyahoga County Prosecutor
James E. Moss
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

       {¶1} On August 12, 2013, the petitioner, Demetrious Frett, commenced this

mandamus and procedendo action, Appeal No. 100241. On August 23, 2013, Frett filed

a nearly identical petition for mandamus and procedendo, Appeal No. 100304.         The one

difference between the two petitions is that the August 23, 2013 petition has a poverty

affidavit attached. It is difficult to discern what relief Frett is seeking. His requested

relief may include rulings on motions for resentencing that he filed on February 19, 2013,

in the three underlying cases, State v. Frett, Cuyahoga C.P. Nos. CR-543131, CR-544745,

and CR-552762; and/or a new sentencing and/or a new trial for failure to comply with

R.C. 2945.05, the jury waiver statute, for failure to be present at the resentencing, or some

other irregularity during the course of the proceedings. The state moved for summary

judgment in Appeal No. 100241 on September 18, 2013, and in Appeal No. 100304 on

September 20, 2013. On October 9, 2013, this court consolidated the two cases and set a

briefing schedule.   On October 23, 2013, Frett filed his own motion for summary

judgment, which also served as his brief in opposition to the respondent’s motions. For

the following reason, this court grants the respondent’s motions for summary judgment,

denies Frett’s motion for summary judgment, and denies the application for writs of

mandamus and procedendo.

       {¶2} In CR-543131, Frett faced multiple charges of rape, attempted rape, and

kidnapping. In CR-552762, Frett faced five counts of rape, and in CR-544745, he
faced approximately 35 charges of rape, attempted rape, kidnapping, abduction, domestic

violence, endangering children, and obstruction of justice.

       {¶3} The state and Frett reached a plea agreement. Frett pleaded guilty to one

count of rape with a sexually violent predator specification in CR-552762 and to two

counts of rape and two counts of abduction with sexual motivation specifications in

CR-544745, and the state nolled all the other counts.         The trial court merged the

abduction counts with the corresponding rape counts as allied offenses and then

sentenced Frett to 11 years on each of the three rape counts to be served consecutively.

       {¶4} On appeal, this court affirmed his convictions, overruling assignments of

error that his plea was involuntary because the judge, prosecutor, and defense counsel

coerced him into pleading guilty and because the indictment was vague, that the trial

court erred in denying his request for new counsel, and that the trial court should have

inquired into his competency. However, this court did modify his sentence. It noted

that at the time of the commission of the offenses, the maximum sentence for rape was

ten years, not the eleven that a subsequent amendment allows. Thus, this court reduced

the sentence to ten years on each rape count to be served consecutively and remanded

“the matter to the trial court for the sole purpose of correcting the sentencing entry to

comport with our decision herein.”       State v. Frett, 8th Dist. Cuyahoga No. 97538,

2012-Ohio-3363, ¶ 19.

       {¶5} 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. Cuyahoga No. 67787, 1994 Ohio

App. LEXIS 6227 (Sept. 26, 1994). Furthermore, if the relator had an adequate remedy,

regardless of whether it was used, relief in mandamus is precluded. State ex rel. Tran v.

McGrath, 78 Ohio St.3d 45, 1997-Ohio-245, 676 N.E.2d 108. 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. Shafer v. Ohio Turnpike Comm., 159

Ohio St. 581, 113 N.E.2d 14 (1953).

      {¶6} The writ of procedendo is merely an order from a court of superior

jurisdiction to one of inferior jurisdiction to proceed to judgment. Yee v. Erie Cty.

Sheriff’s Dept., 51 Ohio St.3d 43, 553 N.E.2d 1354 (1990). Procedendo is appropriate

when a court has either refused to render a judgment or has unnecessarily delayed

proceeding to judgment. State ex rel. Watkins v. Eighth Dist. Court of Appeals, 82 Ohio
St.3d 532, 1998-Ohio-190, 696 N.E.2d 1079. However, the writ will not issue to control

what the judgment should be, nor will it issue for the purpose of controlling or interfering

with ordinary court procedure. Moreover, it will not issue if the petitioner has or had an

adequate remedy at law. State ex rel. Hansen v. Reed, 63 Ohio St.3d 597, 589 N.E.2d

1324 (1992); and Howard v. Cuyahoga Cty. Probate Court, 8th Dist. Cuyahoga No.

84702, 2004-Ohio-4621 (petitioner failed to use an adequate remedy at law).1

       {¶7} First, the petition is defective because it is improperly captioned. Frett

styled this petition as “Demetrious Frett v. State of Ohio, et at. [sic]” R.C. 2731.04

requires that an application for a writ of mandamus “must be by petition, in the name of

the state on the relation of the person applying.” This failure to properly caption a

mandamus action is sufficient grounds for denying the writ and dismissing the petition.

Maloney v. Court of Common Pleas of Allen Cty., 173 Ohio St. 226, 181 N.E.2d 270

(1962). Moreover, the failure to caption the case correctly creates uncertainty as to the

identity of the respondent and the duty to be fulfilled. Naming the state of Ohio as the

respondent causes the uncertainty as to whether the trial court, the Ohio Department of

Rehabilitation and Correction, the county prosecutor, or some other arm of the state is to

perform the requested relief. This court has held that this deficiency alone also warrants

dismissal. State ex rel. Calloway v. Court of Common Pleas of Cuyahoga Cty., 8th Dist.

Cuyahoga No. 71699, 1997 Ohio App. LEXIS 79452 (Feb. 27, 1997); and Jordan v.


       1 Although Frett captions his complaint as a petition for mandamus, he also asks for a writ of
procedendo in his demand for judgment.
Cuyahoga Cty. Court of Common Pleas, 8th Dist. Cuyahoga No. 96013, 2011-Ohio-1813.



       {¶8} Additionally, Frett 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; and State ex rel. Wilson v. Calabrese, 8th Dist. Cuyahoga No. 70077,

1996 Ohio App. LEXIS 6213 (Jan. 18, 1996).

       {¶9} Frett also did not comply with R.C. 2969.25(C), which requires that an

inmate file a certified statement from his prison cashier setting forth the balance in his

private account for each of the preceding six months. This also is sufficient reason to

deny the mandamus, deny indigency status, and assess costs against the relator. State ex

rel. Pamer v. Collier, 108 Ohio St.3d 492, 2006-Ohio-1507, 844 N.E.2d 842; and Hazel

v. Knab, 120 Ohio St.2d 22, 2011-Ohio-4608, 955 N.E.2d 378.

       {¶10} To the extent that Frett is seeking rulings on the motions for resentencing

that he filed in each of the three underlying cases, this matter is moot. Attached to the

respondent’s motions for summary judgment are certified copies of September 16, 2013

journal entries denying Frett’s motions for resentencing in each of the three underlying

cases. These attachments establish that the trial court has fulfilled its duty to rule on the

subject motions.

       {¶11} To the extent that Frett is endeavoring to challenge his convictions and

sentences for lack of jurisdiction because the trial court did not comply with R.C.
2945.05, which requires a written waiver of jury trial, his claim is meritless.         The

Supreme Court of Ohio in Martin v. Maxwell, 175 Ohio St. 147, 147, 191 N.E.2d 838

(1963), rejected this argument for defendants, such as Frett, who pled guilty. The court

ruled that the mandates of R.C. 2945.05, requiring a written jury waiver, are not

applicable when the accused pleads guilty. “The failure in such an instance to file a

waiver does not deprive an accused of any of his constitutional rights, nor does it deprive

the court of its jurisdiction.” This court followed Martin in State v. Abney, 8th Dist.

Cuyahoga No. 84190, 2006-Ohio-273.

         {¶12} To the extent that Frett is seeking a new sentence because the trial court

improperly imposed consecutive sentences under R.C. 2929.19, he has or had an adequate

remedy at law through appeal that now precludes an extraordinary writ. State ex rel.

Jaffal v. Calabrese, 105 Ohio St.3d 440, 2005-Ohio-2591, 828 N.E.2d 107.

         {¶13} To the extent that Frett is seeking resentencing or a new trial on some other

theory, this court denies the application for an extraordinary writ because he did not

clearly articulate in his petition the duty to be performed, the right to be upheld, and the

legal authority supporting his position.

         {¶14} Accordingly, this court denies the application for writs of mandamus and

procedendo. Petitioner to pay costs. This court directs the clerk of court to serve all

parties notice of this judgment and its date of entry upon the journal as required by Civ.R.

58(B).

         {¶15} Writ denied.
MARY EILEEN KILBANE, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
