[Cite as State ex rel. T.W. v. Reed, 2016-Ohio-1407.]

                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


State ex rel. [T.W.] a minor child,                     :

                 Relator,                               :

v.                                                      :             No. 15AP-788

Harvey Reed, Director Ohio Department                   :          (REGULAR CALENDAR)
of Youth Services,
                                                        :
                 Respondent.
                                                        :


                                             D E C I S I O N

                                      Rendered on March 31, 2016


                 Timothy Young, Ohio Public Defender, and Charlyn E.
                 Bohland, for relator.

                 Michael DeWine, Attorney General, and William D.
                 Maynard, for respondent.

                                              IN MANDAMUS
TYACK, J.
        {¶ 1} Relator, T.W., a minor, filed a petition for a writ of mandamus with this
court to require respondent, Harvey Reed, director Ohio Department of Youth Services
("ODYS"), to follow R.C. 2152.18(B) and reduce T.W.'s minimum period of
institutionalization by 301 days.
        {¶ 2} Pursuant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate. Respondent subsequently filed a
motion to dismiss. After the matter was briefed, a magistrate of this court issued a
decision, appended hereto, that recommended we grant respondent's motion to dismiss
because relator's request for writ of mandamus is moot. For the following reasons, we
adopt the magistrate's decision.
No. 15AP-788                                                                                2

       {¶ 3} Initially, following an independent review of this matter, we find the
magistrate has properly determined the pertinent facts.         We adopt the magistrate's
findings of fact which are summarized as follows: On October 15, 2014, relator appeared
in the Hamilton County Juvenile Court. The court exercised its continuing jurisdiction
and a previously suspended 18-month sentence to ODYS was invoked.                  The court
sentenced relator to a minimum of 6 months, with a maximum not to exceed his 21st
birthday, for the underlying offense of aggravated assault and an additional period of 12
months for a firearm specification.
       {¶ 4} Relator was transferred to ODYS which, after applying days of credit to his
sentence, determined that the minimum sentence expiration date ("MSED") was
October 21, 2015.    ODYS applied the 301 days of credit to relator's indefinite term
consisting of a minimum period of 6 months and a maximum period not to exceed his
21st birthday. Relator contends however, that his MSED actually was on June 25, 2015.
Relator filed a complaint for a writ of mandamus on August 19, 2015, arguing that,
pursuant to R.C. 2152.18(B), 301 days of credit should be applied to 18 months of his
minimum sentence which would reduce the time served for the firearm specification.
       {¶ 5} On October 5, 2015, respondent filed a motion to dismiss asserting that
relator has a plain and adequate remedy in the ordinary course of law by filing a
declaratory judgment action. Relator filed a memorandum in opposition, arguing that a
declaratory judgment would not provide a beneficial or speedy remedy and that he has a
clear legal right to have the 301 days of credit applied to the 6-month minimum sentence
as well as the 12-month firearm specification sentence.
       {¶ 6} The magistrate's decision concluded that after reviewing the complaint for
a writ of mandamus there is no claim upon which relief can be granted. The magistrate
found relator cannot prove a set of facts entitling him to relief.        Quite simply, the
minimum sentencing end date has passed. The MSED of June 25, 2015 to which relator
believed he was entitled to, has passed, as well as the MSED of October 21, 2015, the date
documented by ODYS. The magistrate found relator's request moot and concluded the
request for a writ of mandamus should be denied.
       {¶ 7} As provided by Civ.R. 53(D)(4)(c), applicable to this court by Loc.R.
13(M)(1), if no timely objections are filed, the court may adopt a magistrate's decision if it
No. 15AP-788                                                                                3

determines that there is no error of law or other defect evident on the face of the
magistrates decision. No objection has been filed to the magistrate's decision.
       {¶ 8} In order for a writ of mandamus to issue, a relator must demonstrate:
(1) that he has a clear legal right to the relief prayed for, (2) that respondents are under a
clear legal duty to perform the acts, and (3) that relator had no plain and adequate remedy
in the ordinary course of law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 9} A motion to dismiss for failure to state a claim upon which relief can be
granted is procedural and tests the sufficiency of the complaint. State ex rel Hanson v.
Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (1992). In construing the complaint,
the material allegations of the complaint are taken as admitted. Jenkins v. McKeithen,
395 U.S. 411, 421 (1969). All reasonable inferences must also be drawn in favor of the
non-moving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988). In order
for the court to dismiss the complaint, "it must appear beyond doubt from the complaint
that the plaintiff can prove no set of facts entitling him to recovery." O'Brien v. Univ.
Community Tenants Union, 42 Ohio St.2d 242 (1975), syllabus.
       {¶ 10} The magistrate concluded there is no relief which this court can provide to
relator. Not only has the MSED of June 25, 2015, to which relator believes he was
entitled, passed, but also has the MSED of October 21, 2015, the date documented by
ODYS. Relator's request is moot.
       {¶ 11} We find the magistrate has properly determined the pertinent facts and
applied the appropriate law. There is no error or other defect on the face of the decision.
Therefore, we adopt the magistrate's decision as our own, including the findings of fact
and conclusions of law contained therein. In accordance with the magistrate's decision,
we grant respondent's motion to dismiss and deny relator's request for a writ of
mandamus.


                                                                 Motion to dismiss granted;
                                                                 writ of mandamus denied.

                                 BROWN and KLATT, JJ., concur.
                                    _______________
No. 15AP-788                                                                                4

                                         APPENDIX

                             IN THE COURT OF APPEALS OF OHIO

                                TENTH APPELLATE DISTRICT

State ex rel. T. W. (Minor),                  :

                 Relator,                     :

v.                                            :                     No. 15AP-788

Harvey Reed, Director Ohio Department         :                (REGULAR CALENDAR)
of Youth Services,
                                              :
                 Respondent.
                                              :



                              MAGISTRATE'S DECISION

                                Rendered on December 22, 2015



                 Timothy Young, Public Defender, and Charlyn Bohland, for
                 relator.

                 Michael DeWine, Attorney General, and William D.
                 Maynard, for respondent.


                                      IN MANDAMUS
                            ON RESPONDENT'S MOTION TO DISMISS

       {¶ 12} Relator, [T.W.], has filed this original action requesting that this court issue
a writ of mandamus ordering respondent, Harvey Reed, as Director of the Ohio
Department of Youth Services ("ODYS"), to apply the total number of days he was
confined and reduce his minimum period of institutionalization. Specifically, relator
wants ODYS to reduce the mandatory term he is serving pursuant to a firearm
specification.
No. 15AP-788                                                                            5

Findings of Fact:
      {¶ 13} 1. On October 15, 2014, relator, who is a minor, appeared with counsel in
front of Hamilton County Juvenile Court Judge John M. Williams. At that time, the court
invoked its continuing jurisdiction and relator had a suspended 18-month ODYS
commitment sentenced invoked.
      {¶ 14} 2. The court sentenced relator as follows:

               Commit to the legal custody of the Ohio Department of
               Youth Services for the purpose of institutionalization in a
               secure facility for an indefinite term consisting of a
               minimum period of 6 months and a maximum period not to
               exceed the juvenile's attainment of the age of twenty-one
               years. Cincinnati Public School District to bear the costs of
               education. Such determination is subject to re-determination
               by the department of education pursuant to ORC 2151.362.
               All in accordance with the accompanying entry of this date,
               incorporated herein by reference. It is further ordered that
               the juvenile be committed for an additional period of 12
               months in relation to the specification(s) found. This period
               of commitment shall be in addition to and shall be served
               consecutively with and prior to other periods of commitment
               set out in this entry, but shall not exceed the juvenile's
               attainment of twenty-one years.

      {¶ 15} 3. Relator arrived at ODYS on October 21, 2014.
      {¶ 16} 4. ODYS documentation indicates that relator was credited with 301 days of
confinement.
      {¶ 17} 5. After applying the 301 days of credit to his sentence, ODYS determined
that relator's minimum sentence expiration date ("MSED") was October 21, 2015.
      {¶ 18} 6. Relator contends, however, that his MSED actually occurred on June 25,
2015, several months before he arrived at ODYS.
      {¶ 19} 7. Relator asserts that, when the court sentenced him to serve a minimum
period of 6 months and a maximum period not to exceed his 21st birthday plus an
additional period of 12 months in relation to the firearm specification, he is actually
serving an indefinite term consisting of 18 months and a maximum period not to exceed
his 21st birthday. As such, relator contends that the 301 days of credit should be applied
No. 15AP-788                                                                                           6

to the 18 months (which reduces the time he would serve for the 12-month firearm
specification) thereby resulting in an MSED of June 25, 2015.1
        {¶ 20} 8. ODYS applied the 301 days of credit to relator's indefinite term
consisting of a minimum period of 6 months and a maximum period not to exceed
relator's 21st birthday. ODYS asserts that this term and the reduction thereto only begin
after relator serves the mandatory 12 months for the firearm specification.
        {¶ 21} 9. On October 5, 2015, respondent filed a motion to dismiss asserting that
relator has a plain and adequate remedy in the ordinary course of law by filing a
declaratory judgment action.
        {¶ 22} 10. Relator has filed a memorandum in opposition asserting that a
declaratory judgment would not provide a beneficial or speedy remedy and that he has
demonstrated that he has a clear legal right to have the 301 days credited towards both
the indefinite 6-month term as well as the mandatory 12-month term for the firearm
specification, that respondent has a clear legal duty to apply the credit in that way, and
that he does not have a plain and adequate remedy in the ordinary course of law.
        {¶ 23} 11. Respondent has filed a reply brief in response.
        {¶ 24} 12. The matter is currently before the magistrate on respondent's motion to
dismiss.
Conclusions of Law:
        {¶ 25} For the reasons that follow, it is this magistrate's decision that this court
should grant respondent's motion to dismiss.
        {¶ 26} A motion to dismiss for failure to state a claim upon which relief can be
granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v.
Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545 (1992). In reviewing the complaint, the
court must take all the material allegations as admitted and construe all reasonable
inferences in favor of the nonmoving party. Id.
        {¶ 27} In order for a court to dismiss a complaint for failure to state a claim upon
which relief can be granted, it must appear beyond doubt from the complaint that relator

1 Unfortunately, this motion to dismiss became ripe for review while this magistrate was on disability

leave following surgery and the magistrate recognizes that, not only has June 25, 2015, the date which
relator believes should be his MSED, arrived but also October 21, 2015, the date that ODYS indicates that
his MSED actually occurred.
No. 15AP-788                                                                                           7

can prove no set of facts entitling him to recovery. O'Brien v. Univ. Community Tenants
Union, 42 Ohio St.2d 242 (1975). As such, a complaint for writ of mandamus is not
subject to dismissal under Civ.R. 12(B)(6) if the complaint alleges the existence of a legal
duty by the respondent and the lack of an adequate remedy at law for relator with
sufficient particularity to put the respondent on notice of the substance of the claim being
asserted against it, and it appears that relator might prove some set of facts entitling him
to relief. State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn., 72 Ohio St.3d
94 (1995). For the following reasons, respondent's motion should be granted and relator's
complaint should be dismissed.
        {¶ 28} There is no relief which this court can provide relator because, not only has
the MSED of June 25, 2015 to which he believes he was entitled passed, but also the
MSED of October 21, 2015, the date documented by ODYS. Relator's request is moot.2 As
such, this court should grant respondent's motion and dismiss this case.




                                                    /S/ MAGISTRATE
                                                    STEPHANIE BISCA

                                  NOTICE TO THE PARTIES

                Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
                error on appeal the court's adoption of any factual finding or
                legal conclusion, whether or not specifically designated as a
                finding of fact or conclusion of law under Civ.R.
                53(D)(3)(a)(ii), unless the party timely and specifically objects
                to that factual finding or legal conclusion as required by Civ.R.
                53(D)(3)(b).




2 In case No. 15AP-795, the magistrate has issued a decision recommending that this court deny the

relator's request for a writ of mandamus finding that the statute does not specifically address the issue
raised by relator and, as such, the magistrate found that respondent did not abuse its discretion when it
applied the days of credit in the manner in which it did.
