[Cite as Bandy v. Villanueva,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98133

WILLIE BANDY RELATOR

vs.

JUDGE JOSE A. VILLANUEVA RESPONDENT

JUDGMENT: COMPLAINT DISMISSED

Writ of Mandamus Motion No. 454168 Order No. 457070

RELEASE DATE: August 7, 2012 RELATOR

Willie Bandy Inmate No. 431465 Grafton Correctional Institution 2500 S. Avon Belden Road Grafton, Ohio 44044

ATTORNEYS FOR RESPONDENT

William D. Mason, Esq. Cuyahoga County Prosecutor By: James E. Moss, Esq. Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113 JAMES J. SWEENEY, J.:

{¶1} Relator, Willie Bandy, is the defendant in State v. Bandy, Cuyahoga C.P.

No. CR-417888, which has been assigned to respondent judge. Bandy was originally

sentenced in 2002. In 2008, Bandy appealed the sentencing entry issued on June 7,

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.

Bandy contends that the June 7, 2002 entry is not a final appealable order because the

signature of respondent judge is not legible. Bandy requests that this court issue a writ

of mandamus compelling respondent to issue a sentencing entry that “complies with

Crim.R. 32(C) and constitutes a final, appealable order.” Complaint, at 7.

{¶2} Respondent has filed a motion to dismiss, which Bandy has opposed. For

the reasons stated below, we hold that Bandy’s complaint does not state a claim upon

which relief can be granted and grant respondent’s motion to dismiss.

{¶3} “A judgment of conviction is a final order subject to appeal under R.C.

2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge’s

signature, and (4) the time stamp indicating the entry upon the journal by the clerk.

(Crim.R. 32(C), explained; State v. Baker,

,

,

, modified.)” State v. Lester,

,

,

, paragraph one of the syllabus. Bandy attached a copy of the June 7, 2002

sentencing entry to his complaint. Each of the four elements required by Lester appears

on the entry. {¶4} Nevertheless, Bandy contends that the signature of the judge is not legible.

He relies on State v. Anderson, 8th Dist. No. 87136,

, in which this court

observed that the sentencing entry bore the “marginally legible signature” of a judge who

was not the sentencing judge. Id. at ¶ 2.

Crim.R. 32(C) provides that the judge who presides over the proceedings which culminated in the judgment must sign the judgment. In re Mitchell (1994),

,

(rubber stamp may not be used in lieu of original signature); see State v. Ginocchio (1987),

,

(setting forth the form of a final order in a criminal case). Therefore, the judgment entry is not a final appealable order.

That is, the Anderson court held that the sentencing entry was not final because the

sentencing judge did not sign the sentencing entry. Obviously, the signature was

sufficiently legible for this court to determine that the signer was not the sentencing

judge. Anderson does not, therefore, support Bandy’s argument that an illegible judge’s

signature prevents an entry from being a final appealable order.

{¶5} Bandy also relies on Mitchell and

Yet, the appeal in

Mitchell was dismissed because the order being appealed did not bear a judge’s signature.

This court held that a rubber stamp could not be used in the place of a judge’s signature.

Similarly, in Ginocchio, the trial court did not issue a judgment entry meeting all of the

requirements of Crim.R. 32. Rather, the trial judge signed a docket form that did not

bear a time stamp.

{¶6} Respondent argues that none of these three cases supports Bandy’s claim

that relief in mandamus lies to compel respondent to issue a new sentencing entry. We

agree. Bandy has not provided this court with any controlling authority for the proposition that a purportedly illegible signature by a judge prevents a sentencing entry

from being final and appealable.

{¶7} As a consequence, Bandy has not established that he has a clear legal right

to relief or that respondent has a clear legal duty to act. Additionally, we note that each

of the three cases discussed above was considered on appeal. Bandy had, therefore, an

adequate remedy by way of appeal to challenge the propriety and sufficiency of the June

7, 2002 sentencing entry.

{¶8} Furthermore, the complaint is defective. The action is not on relation of the

state as required by R.C. 2731.04, which may also be a ground for dismissal. Clarke v.

McFaul, 8th Dist. No. 89447,

.

{¶9} Accordingly, respondent’s motion to dismiss is granted. Relator to pay

costs. The court directs the clerk of court to serve all parties with notice of this

judgment and its date of entry upon the journal as required by Civ.R. 58(B).

{¶10} Complaint dismissed.

JAMES J. SWEENEY, JUDGE

MELODY J. STEWART, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR