[Cite as Osco v. Pittman, 2019-Ohio-1410.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


KODY M. OSCO,                                    :        PER CURIAM OPINION

                 Relator,                        :
                                                          CASE NO. 2018-P-0094
        - vs -                                   :

LAURIE J. PITTMAN,                               :

                 Respondent.                     :


Original Action for Writ of Mandamus.

Judgment: Petition denied.


Kody M. Osco, pro se, PID: A640-807, Warren Correctional Institution, 5787 State
Route 63, Lebanon, OH 45036 (Relator).

Victor V. Vigluicci, Portage County Prosecutor, 241 South Chestnut Street, Ravenna,
OH 44266 (For Respondent).



PER CURIAM.

        {¶1}     The matter is before the court on relator, Kody M. Osco’s, petition for writ

of mandamus filed November 27, 2018. For the reasons that follow, the petition is

dismissed.

        {¶2}     We understand relator’s petition to involve Case Nos. 2012-CR-00702 and

2012-CR-00584. In the former, relator pled guilty to one count of Burglary, a felony of

the second degree, in violation of R.C. 2911.12(A)(2)(D). In the latter, relator pled guilty

to one count of Felonious Assault, a felony of the second degree, in violation of R.C.
2903.11(A)(2). In 2013, relator was sentenced to seven years imprisonment for each

count to be served concurrently.

       {¶3}    Subsequently, relator made numerous motions, all of which were denied

without hearing. In 2015, he appealed to this court; we ultimately affirmed the lower

court’s decision. See State v. Osco, 11th Dist. Portage No. 2014-P-0009, 2015-Ohio-

44. Relator then filed numerous additional motions in the court of common pleas, which

were also denied without hearing. Relator now seeks this writ of mandamus to compel

the court of common pleas to respond to his June 18, 2018 motion in a judgment that is

both final and appealable.

       {¶4}    R.C. 2731.01 provides, “Mandamus is a writ, issued in the name of the

state to an inferior tribunal, a corporation, board, or person, commanding the

performance of an act which the law specially enjoins as a duty resulting from an office,

trust, or station.”   “ʻFor a writ of mandamus to issue, [1.] the relator must establish a

clear legal right to the relief prayed for; [2.] the respondent must have a clear legal duty

to perform the act; and [3.] the relator must have no plain and adequate remedy in the

ordinary course of the law.’” State ex rel. McKinney v. McKay, 11th Dist. Trumbull No.

2011-T-0039, 2011-Ohio-3756, ¶16, quoting State ex rel. Widmer v. Mohney, 11th Dist.

Geauga No. 2007-G-2776, 2008-Ohio-1028, ¶31.

       {¶5}    Initially we note relator’s petition has multiple procedural failings. R.C.

2731.04 provides, in pertinent part, that “[a]pplication for the writ of mandamus must be

by petition, in the name of the state on the relation of the person applying, and verified

by affidavit.” First, relator does not refer to his filing as a “petition,” but, rather, simply as

a “Mandamus,” in violation of R.C. 2731.04. However, in the interest of justice, we

construe it as a petition for a writ of mandamus. See State ex rel. Allah-U-Akbar v.


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Ashtabula Cty. Court of Common Pleas, 11th Dist. Ashtabula No. 2017-A-0035, 2017-

Ohio-8625, ¶12.

      {¶6}   Relator has also failed to caption his petition “in the name of the state on

the relation of the person applying” as required by R.C. 2731.04, but instead has

captioned his petition simply “MANDAMUS.” The failure to properly caption a petition

for a writ of mandamus warrants dismissal. See, e.g., Maloney v. Court of Common

Pleas of Allen Cty., 173 Ohio St. 226 (1962).

      {¶7}   Regardless of the procedural failures, relator’s petition also fails on the

merits. Relator asserts that Judge Laurie J. Pittman, the named respondent, has failed

to rule on his June 18, 2018 motion to vacate. The docket, however, clearly shows the

court responded to his June 18, 2018 motion on June 22, 2018, with a judgment entry

denying his motion without hearing.

      {¶8}   Nevertheless, on October 4, 2018, relator asked the court of common

pleas to rule on his June 18, 2018 motion to vacate. In the instant petition, relator

acknowledges the court responded to his October 4, 2018 request on October 11, 2018

with a Judgment Entry stating in its entirety, “The Defendant’s Motion is denied without

hearing.”

      {¶9}   Relator now asserts that the October 11, 2018 response is not a final

appealable order because it merely states the motion is dismissed without hearing.

Presumably relator seeks an explanation as to why his motion was dismissed, though

this is not expressly requested. Instead, he asserts broadly, and in conclusory fashion,

that the court’s order was not a final appealable order. He requests that this court

compel respondent to (1) issue a final appealable order to his June 18, 2018 motion or

(2) issue a final appealable order for the October 11, 2018 Judgment Entry.


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       {¶10} Regarding the former, we find relator’s first prayer for relief to be a nullity

as the record clearly reflects that the lower court responded to relator’s June 18, 2018

motion on June 22, 2018 in a judgment entry denying his motion without hearing. To

the extent relator asserts this order was insufficient to overrule his motion, we disagree.

       {¶11} Generally, Crim.R. 35(C) requires that “[t]he trial court shall file its ruling

upon a petition for post-conviction relief, including findings of fact and conclusions of law

if required by law, not later than one hundred eighty days after the petition is filed.”

However, the court “has no duty to issue findings of fact and conclusions of law on

successive or untimely petitions for post-conviction relief.” State ex rel. Bunting v. Haas,

102 Ohio St.3d 161, 2004-Ohio-2055, ¶11.            See also, State ex rel. Reynolds v.

Basinger, 99 Ohio St.3d 303, 2003-Ohio-3631.

       {¶12} As we ruled in relator’s 2015 appeal in this court, relator’s motions for

postconviction relief have not been timely filed and as such, “the trial court had no

obligation to issue findings of fact and conclusions of law in support of its decision.”

Osco, supra, at ¶17. Therefore, the lower court’s June 22, 2018 and October 11, 2018

judgment entries are sufficient without including findings of fact and conclusions of law.

       {¶13} For the foregoing reasons, relator’s petition is fatally defective for failing to

comply with necessary requirements of R.C. 2731.04.              And, even if relator fully

complied with the statutory requirements, he cannot establish a clear legal right to the

remedy sought in the underlying petition.

       {¶14} Accordingly, relator’s petition is denied.


CYNTHIA WESTCOTT RICE, J., TIMOTHY P. CANNON, J., MATT LYNCH, J., concur.




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