COURT OF APPEALS OF OHIO, EIGHTH DISTRICT
                         COUNTY OF CUYAHOGA
                             NO.  72358
STATE OF OHIO, EX REL.        :
DAVID L. TINO                 :
                              :
               Relator        :         JOURNAL ENTRY
                              :               AND
           vs.                :             OPINION
                              :
JUDGE PEGGY FOLEY JONES       :
                              :
               Respondent     :
DATE OF ANNOUNCEMENT  
OF DECISION                   :  JUNE 12, 1997
CHARACTER OF PROCEEDING       :  WRIT OF MANDAMUS
JUDGMENT                      :  DISMISSED
DATE OF JOURNALIZATION        :                         
APPEARANCES:
For Relator:                  DAVID L. TINO, Pro Se
                              Inmate No. 291-945
                              Lorain Correctional Facility
                              2075 South Avon-Belden Road
                              Grafton, Ohio 44044
For Respondent:               STEPHANIE TUBBS JONES
                              Cuyahoga County Prosecutor
                              SHERRY F. McCREARY, Asst.
                               Prosecuting Attorney
                              1200 Ontario Street
                              Cleveland, Ohio 44113
                               - 2 -
JAMES M. PORTER, J.:
     David  L.  Tino, relator,  is seeking  a  writ of  mandamus to
compel  respondent, Judge Peggy Foley Jones, to sua sponte "provide
the  Relator  with  'EQUAL  PROTECTION'  by adjusting  his  current
sentence imposed under  former law, to  be consistent with the  new
sentencing enactment of section 5  of Senate Bill 2, as  amended by
S.B. 269, effective July 1, 1996  ***."  For the following reasons,
we sua sponte dismiss the petition.
     A petition for  a writ of mandamus may be dismissed sua sponte
if  it  is obvious  that the  relator cannot  prevail on  the facts
alleged in the petition.  State ex rel. Peeples v. Anderson (1995),
73 Ohio St.3d 559, 653 N.E.2d 371; State ex rel. Tran  v. Christian
(Jan.  29, 1996),  Cuyahoga App.  No. 70116,  unreported.   Relator
alleged in his petition that his current sentence was imposed under
the former  law and relator  testified in his  supporting affidavit
that he is incarcerated pursuant to the laws as  they existed prior
to July  1, 1996.  The Supreme Court of Ohio, in the recent case of
State ex rel. Lemmon v. Ohio Adult Parole Authority (1997), 78 Ohio
St.3d  186,  has   clearly  stated  that  the   amended  sentencing
provisions do not apply to persons convicted and sentenced prior to
July 1, 1996.   In light of Lemmon, which was decided  just one day
prior to the institution of this action, it is obvious that relator
cannot prevail on his given facts.
                               - 3 -
     Accordingly, petition for  writ of  mandamus is dismissed  sua
sponte.  Costs to relator.
JAMES D. SWEENEY, C.J., and
NAHRA, J., CONCUR.         
.