[Cite as State ex rel. Bandy v. Villanueva, 2012-Ohio-1750.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97826

STATE OF OHIO, EX REL., WILLIE BANDY RELATOR vs. JUDGE JOSE VILLANUEVA RESPONDENT

JUDGMENT: COMPLAINT DISMISSED

Writ of Mandamus Motion Nos. 451882, 452312, 452327, 452328, and 452329 Order No. 453684

RELEASE DATE: April 18, 2012 FOR RELATOR Willie Bandy, pro se Inmate No. 431-465 Grafton Correctional Institution 2500 South Avon Belden Road Grafton, Ohio 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 MARY J. BOYLE, P.J.: {¶1} Relator, Willie Bandy, is the defendant in State v. Bandy, Cuyahoga County Court of Common Pleas Case No. CR-417888, which has been assigned to respondent judge. Bandy complains that respondent has not issued findings of fact and conclusions of law with respect to his petition for postconviction relief filed on September 7, 2011.

He requests that this court issue a writ of mandamus compelling respondent to issue findings of fact and conclusions of law.

{¶2} Bandy filed several motions on September 7, 2011, in addition to his petition for postconviction relief. In his motion to dismiss, respondent has apparently misconstrued Bandy’s request for relief and argued that respondent does not have a duty to issue findings of fact and conclusions of law with respect to Bandy’s motion for appointment of counsel, also filed on September 7, 2011. Although respondent’s argument is misdirected, dismissal of this action is appropriate.

{¶3} 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.

{¶4} On February 3, 2012, respondent issued an entry denying the petition for postconviction relief but did not issue findings of fact and conclusions of law. R.C.

2953.21(A)(2) provides: Except as otherwise provided in section 2953.23 of the Revised Code, a petition under division (A)(1) of this section shall be filed no later than one hundred eighty days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication or, if the direct appeal involves a sentence of death, the date on which the trial transcript is filed in the supreme court. If no appeal is taken, except as otherwise provided in section 2953.23 of the Revised Code, the petition shall be filed no later than one hundred eighty days after the expiration of the time for filing the appeal.

Bandy filed his petition for postconviction relief on September 7, 2011, clearly more than days after the time for filing his appeal from his conviction and sentence in 2002.

{¶5} R.C. 2953.23(A) provides that “a court may not entertain a petition filed after the expiration of the period prescribed in” R.C. 2953.21(A) unless the petitioner demonstrates that certain exceptions apply. Bandy “has not demonstrated that any exception to the one-hundred-eighty-day requirement applies.” State ex rel. Brown v. Friedland, 8th Dist. No. 86493, 2005-Ohio-4289, ¶ 3. “Because the petition was untimely, respondent did not have a clear legal duty to issue findings of fact and conclusions of law.” Id. at ¶ 4. Likewise, respondent in this action does not have a clear legal duty to issue findings of fact and conclusions of law.

{¶6} Accordingly, respondent’s motion to dismiss 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).

Complaint dismissed.

MARY J. BOYLE, PRESIDING JUDGE FRANK D. CELEBREZZE, JR., J., and LARRY A. JONES, SR., J., CONCUR