State ex rel. Bandy v. Villanueva

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2012-Ohio-2313

Case Date: 05/21/2012

Plaintiff: State ex rel. Bandy

Defendant: Villanueva

Preview:[Cite as State ex rel. Bandy v. Villanueva, 2012-Ohio-2313.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97609
STATE OF OHIO, EX REL.,
WILLIE BANDY
RELATOR
vs.
JUDGE JOSE VILLANUEVA
RESPONDENT
JUDGMENT:
WRIT DENIED
Writ of Mandamus
Motion Nos. 450572, 450739, 450740,
451415, 452311, 452325, and 452326
Order No. 453594
RELEASE DATE:     May 21, 2012

FOR RELATOR
Willie Bandy, pro se
Inmate No. 431-465
Grafton Correctional Institution
2500 South Avon Belden Road
Grafton, OH                        44044
ATTORNEYS FOR RESPONDENT
William D. Mason
Cuyahoga County Prosecutor
By:   James E. Moss
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio                    44113

EILEEN A. GALLAGHER, J.:
{¶1}     Relator, Willie Bandy, is the defendant in State v. Bandy, Cuyahoga Cty.
Court of Common Pleas Case No. CR-417888, which has been assigned to respondent
judge.     Bandy  was  originally  sentenced  in                                               2002.                                                                       In   2008,  Bandy  appealed  his
sentencing entry issued in 2002.   This court denied his motion for delayed appeal as well
as his motion for appointment of counsel and dismissed his appeal.   State v. Bandy, 8th
Dist. No. 91322.   He complains that, despite the fact that he was indigent, the trial court
did not appoint counsel to represent him on appeal.
{¶2}   On September 7, 2011, Bandy filed a motion with this court for appointment
of counsel.   He requests that this court issue a writ of mandamus compelling respondent
to appoint counsel for appeal.
{¶3}     Respondent has filed a motion for summary judgment attached to which is
a copy of the journal entry received for filing on December 19, 2011 denying Bandy’s
motion for appointment of counsel filed September 7, 2011.   To the extent that Bandy
requests that this court compel respondent to rule on the motion to appoint counsel, this
action is moot.
{¶4}     Bandy also requests, however, that this court order respondent to grant the
motion  for  appointment  of  counsel.    Bandy  has  not  provided  this  court  with  any
controlling authority requiring respondent to grant his motion to appoint appellate counsel
at  this  time.                                                                                “Moreover,  although  mandamus  may  require  a  court  to  exercise  its

judgment or proceed to discharge its functions, it may not control judicial discretion, even
if such discretion is grossly abused. * * *   Similarly, appointing counsel * * * [is] within
the discretion of the trial judge, and mandamus may not control such discretion.”   State
ex rel. Washington v. McDonnell, 8th Dist. No. 73173, 1997 WL 793120 *2 (Dec. 24,
1997).
{¶5}                                                                                            Accordingly,  respondent’s  motion  for  summary  judgment  is  granted.
Relator to pay costs.    The clerk is directed to serve upon the parties notice of this
judgment and its date of entry upon the journal.   Civ.R. 58(B).
Writ denied.
EILEEN A. GALLAGHER, JUDGE
MELODY J STEWART, P.J., and
JAMES J. SWEENEY, J.

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