[Cite as State ex rel. Scott v. Burnside, 2024-Ohio-452.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE EX REL. CLINTON R. :

SCOTT, JR.,

Relator, :

No. 113399

v. :

JUDGE JANET BURNSIDE, :

Respondent. :

JOURNAL ENTRY AND OPINION

JUDGMENT: WRIT DENIED

DATED: February 6, 2024

Writ of Mandamus

Motion No. 570275

Order No. 570901 

Appearances:

Clinton R. Scott, Jr., pro se.

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and James E. Moss, Assistant Prosecuting 

Attorney, for respondent. 

LISA B. FORBES, P.J.:

Relator, Clinton R. Scott, Jr., seeks a writ of mandamus directing 

respondent, Judge Daniel Gaul, who was substituted in this action by Judge Janet 
Burnside,

1

to release relator from any period of postrelease control that was imposed 

in an underlying criminal case. For the reasons set forth in this opinion, 

respondent’s motion for summary judgment is granted and the request for relief in 

mandamus is denied.

I. Factual and Procedural History

On November 21, 2023, relator filed the instant complaint for writ of 

mandamus. There, he alleged that in an unidentified criminal case, respondent 

sentenced relator to a prison sentence that included a period of postrelease control. 

Relator alleges that respondent “ruled on my case. Sentence [sic] to a max term. 

Gave all my time. [Respondent Gaul] is the one to set it right.” Relator then 

requested that this court issue a writ of mandamus directing respondent to relieve 

relator of postrelease control. The complaint also alleged that on June 27, 2023, 

relator filed a motion to terminate postrelease control, but does not further 

reference this motion in his request for relief. Instead, relator requests that this 

court order respondent to vacate any period of postrelease control imposed in the 

unidentified underlying criminal case.

1 During the pendency of these proceedings and after respondent Gaul filed a motion 

for summary judgment, respondent Gaul was suspended from the practice of law and 

immediately suspended from his judicial position. Disciplinary Counsel v. Gaul, Slip 

Opinion No. 2023-Ohio-4751. Pursuant to App.R. 29(C)(1), the action does not abate, and 

respondent’s temporary successor, Judge Janet Burnside, was automatically substituted as 

a party to these proceedings. 
Respondent filed a motion for summary judgment on December 8, 

2023.2 There, respondent alleged that the claims raised in the complaint were 

barred by res judicata. Respondent went on to argue that relator’s convictions and 

sentences in State v. Scott, Cuyahoga C.P. No. CR-13-576163-A were affirmed in an 

appeal, precluding this collateral attack on the judgment. Respondent further 

argued that relator had an adequate remedy at law and the complaint was 

procedurally defective. For all those reasons, respondent requested the denial of the 

requested relief. Relator did not timely file a brief in opposition to respondent’s 

motion for summary judgment.

II. Law and Analysis 

Relator seeks a writ of mandamus directing respondent to remove 

any period of postrelease control imposed in an underlying criminal case. Relator 

does not request an order directing respondent to proceed to judgment on the 

motion he alleged he filed on June 27, 2023.3 Therefore, our analysis will be limited 

to relator’s requested relief.

2 The docket in the present case indicates that service of the complaint was not 

perfected. However, respondent has actively participated in this litigation by filing a 

motion for summary judgment without raising adequacy of service of process or lack of 

jurisdiction as a defense. Therefore, respondent has waived service and subjected himself 

to the jurisdiction of this court. See Gliozzo v. Univ. Urologists of Cleveland, Inc., 114 Ohio 

St.3d 141, 2007-Ohio-3762, 870 N.E.2d 714. 

3 A review of the docket in the underlying criminal case indicates that respondent 

denied this motion on July 6, 2023, rendering moot any claim for relief in mandamus to 

proceed to judgment on this motion. A court may take judicial notice of a docket publicly 

available over the internet that is outside of the pleadings to determine if a claim for relief 

is moot. State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, 874 

N.E.2d 516, ¶ 10.
A writ of mandamus is available when relators demonstrate by clear 

and convincing evidence that they possess a legal right to the requested relief and 

the respondent has a clear legal duty to provide that relief. State ex rel. Schroeder

v. Cleveland, 150 Ohio St.3d 135, 2016-Ohio-8105, 80 N.E.3d 417, ¶ 13, citing State

ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6. 

Further, an extraordinary writ of mandamus may only be used where a relator has 

no other adequate remedy in the ordinary course of the law. Id. Finally, a writ of 

mandamus may not be used to control judicial discretion. State ex rel. Dreamer v.

Mason, 115 Ohio St.3d 190, 2007-Ohio-4789, 874 N.E.2d 510, ¶ 12, citing State ex

rel. Rashada v. Pianka, 112 Ohio St.3d 44, 2006-Ohio-6366, 857 N.E.2d 1220, ¶ 3.

The present matter is before this court on respondent’s motion for 

summary judgment. According to Civ.R. 56(C), summary judgment is appropriate 

when, construing the evidence most strongly in favor of the nonmoving party, “(1) 

No genuine issue as to any material fact remains to be litigated; (2) the moving party 

is entitled to judgment as a matter of law; and (3) it appears from the evidence that 

reasonable minds can come to but one conclusion, and * * * that conclusion is 

adverse to [the nonmoving] party.” Temple v. Wean United, Inc., 50 Ohio St.2d 317, 

327, 364 N.E.2d 267 (1977). 

A. Right to Relief and a Clear Legal Duty

In order to succeed, relator must establish that he has a clear right to 

the requested relief and respondent has a clear legal duty to provide that relief. 

According to the complaint, relator seeks to have respondent vacate any period of 
postrelease control that respondent has previously imposed in an underlying 

criminal case. Relator has not identified any legal right he has to that requested 

relief or any legal duty that would require respondent to vacate a period of 

postrelease control that was imposed in the underlying criminal case. Relator only 

argues that respondent imposed a maximum term of imprisonment. The certified 

copy of the sentencing entry, authenticated by affidavit and attached to respondent’s 

motion for summary judgment, indicates that relator did not receive a maximum 

sentence. But even if relator had received a maximum prison sentence, he is still 

subject to postrelease control. 

The sentencing entry attached to respondent’s motion to dismiss 

contains a notification of a mandatory five-year period of postrelease control and 

the potential consequences of violating the terms of postrelease control. A trial court 

has no discretion to impose or not impose postrelease control for the first-degreefelony offenses of which relator was convicted. R.C. 2967.28(B) provides:

Each sentence to a prison term, other than a term of life imprisonment, 

for a felony of the first degree, for a felony of the second degree, for a 

felony sex offense, or for a felony of the third degree that is an offense 

of violence and is not a felony sex offense shall include a requirement 

that the offender be subject to a period of post-release control imposed 

by the parole board after the offender’s release from imprisonment. 

This division applies with respect to all prison terms of a type 

described in this division, including a term of any such type that is a 

risk reduction sentence. If a court imposes a sentence including a 

prison term of a type described in this division on or after July 11, 2006, 

the failure of a sentencing court to notify the offender pursuant to 

division (B)(2)(d) of section 2929.19 of the Revised Code of this 

requirement or to include in the judgment of conviction entered on the 

journal a statement that the offender’s sentence includes this 

requirement does not negate, limit, or otherwise affect the mandatory 
period of supervision that is required for the offender under this 

division. This division applies with respect to all prison terms of a type 

described in this division, including a non-life felony indefinite prison 

term.

(Emphasis added.) 

Under the statute, relator’s sentence is one that required a period of 

postrelease control. Respondent had a duty to inform relator of postrelease control 

during a criminal sentencing hearing. See State v. Bates, 167 Ohio St.3d 197, 2022-

Ohio-475, 190 N.E.3d 610. Relator does not allege that postrelease control was not 

validly imposed. He states, without support, that it must be vacated because he 

received a maximum sentence.

Relator’s citation in his complaint to several cases without 

explanation do not provide support for his claim. He cited a case that held that relief 

in habeas corpus was not available to challenge the proper calculation of jail-time 

credit. Heddleston v. Mack, 84 Ohio St.3d 213, 702 N.E.2d 1198 (1998). He also 

cited inapposite cases that do not deal with the issues raised in this action. State v.

Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982) (an appeal involving 

constructive versus actual possession of stolen property); State v. Messer, 107 Ohio 

App.3d 51, 667 N.E.2d 1022 (9th Dist.1995) (an appeal involving the operability of

a firearm for proof necessary for a firearm specification, exclusion of testimony, and 

double jeopardy related to a separate period of incarceration for a firearm 

specification); and State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 

470 (an appeal holding sentencing statutes unconstitutional that required judicial 
factfinding for the imposition of sentences greater than the minimum), superseded 

by statute as recognized by State v. Sergent, 148 Ohio St.3d 94, 2016-Ohio-2696, 

69 N.E.3d 627, ¶ 35-36. These cases do not provide any basis for the requested relief. 

Therefore, respondent has no legal duty — in fact no authority — to 

relieve relator from any period of postrelease control included in the sentencing 

entry. Relator has not identified any source of authority or duty for respondent to 

vacate postrelease control. Relator is not entitled to a writ of mandamus. 

B. Adequate Remedy at Law

A writ of mandamus will not issue where a relator possesses or 

possessed an adequate remedy at law, such as appeal. State ex rel. Kerns v.

Simmers, 153 Ohio St.3d 103, 2018-Ohio-256, 101 N.E.3d 430. “For a remedy at law 

to be adequate, the remedy should be complete in its nature, beneficial and speedy.” 

State ex rel. Liberty Mills, Inc. v. Locker, 22 Ohio St.3d 102, 104, 488 N.E.2d 883 

(1986), citing State ex rel. Merydith Constr. Co. v. Dean, 95 Ohio St. 108, 123, 116 

N.E. 37 (1916). Appeal from final judgment generally constitutes an adequate 

remedy at law. State ex rel. LTV Steel Co. v. Gwin, 64 Ohio St.3d 245, 248-249, 594 

N.E.2d 616 (1992).

Here, respondent attached a certified copy of relator’s sentencing 

entry from his underlying criminal case that was journalized on January 16, 2014. 

In that entry, respondent imposed a five-year period of postrelease control. If that 

period of postrelease control was imposed in error, relator could have challenged it 

on direct appeal. Therefore, relator possessed an adequate remedy at law to 
challenge the alleged error he now seeks to address in an action for an extraordinary 

writ. 4 This is not the rare case where extraordinary relief is required because relator 

possesses or possessed no other adequate remedy.

C. The Complaint is Procedurally Defective 

Relator’s complaint is also procedurally defective, requiring the 

denial of the requested relief. The complaint indicates that relator is currently an 

inmate in a state correctional institution. As such, he must comply with 

R.C. 2969.25 when filing a civil action or appeal from a civil action against a 

governmental agency or employee. R.C. 2969.25(A). 

R.C. 2969.25(C) requires an inmate who wishes to waive the filing fee 

when initiating an action against a governmental agency or employee to file an 

affidavit of indigency and an affidavit from the cashier of the state correctional 

institution certifying the balance in the inmate account for the proceedings six 

months. Relator did not pay the filing fee and attached an affidavit of indigency to 

his complaint. However, relator did not attach an affidavit from the institutional 

cashier. Relator attached an affidavit, which appears to be such a notarized 

statement, but the affidavit is signed by relator, not by the institutional cashier. The 

signature line of the affidavit is labeled as “signature of authorized officer.” 

4 A review of the docket of the underlying case shows that relator filed a motion to 

terminate postrelease control on June 27, 2023. Respondent denied the motion on July 6, 

2023. Relator does not address why the filing of this motion and appeal from an adverse 

ruling does not also constitute an adequate remedy at law, which would also preclude relief 

in mandamus. 
However, this line bears relator’s signature, not that of the institutional cashier or 

authorized representative of the institutional cashier. Therefore, relator has not 

strictly complied with R.C. 2969.25(C). Strict compliance is necessary. State ex rel. 

Ellis v. Wainwright, 157 Ohio St.3d 279, 2019-Ohio-2853, 135 N.E.3d 761, ¶ 7. 

For these reasons, respondent’s motion for summary judgment is 

granted. Relator’s request for writ of mandamus is denied. Costs assessed against 

relator. The clerk is directed to serve on the parties notice of this judgment and its 

date of entry upon the journal. Civ.R. 58(B).

Writ denied.

_____________________________

LISA B. FORBES, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and

MARY J. BOYLE, J., CONCUR