State v. Pope , 2014 Ohio 2654 ( 2014 )

[Cite as State v. Pope, 2014-Ohio-2654.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101184
STATE OF OHIO
RESPONDENT
vs.
JOHNATHAN POPE
RELATOR
JUDGMENT:
WRIT DENIED
Writ of Mandamus
Motion No. 474269
Order No. 475376
RELEASE DATE: June 13, 2014
FOR RELATOR
Johnathan Pope
#650-717
Richland Correctional Institution
P.O. Box 8107
Mansfield, Ohio 44901
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: James E. Moss
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:
{¶1} On March 28, 2014, the relator, Johnathan Pope, commenced this mandamus
action to compel the respondent to rule on the motions for jail-time credit that he filed on
January 30, 2014, in State v. Pope, Cuyahoga C.P. Nos. CR-13-576800-A and
CR-13-578700-B, and on January 10, 2014, in State v. Pope, Cuyahoga C.P. No.
CR-13-570585-A. On April 24, 2014, the respondent moved for summary judgment on
the grounds of mootness and procedural defects. Pope never filed a timely response.
For the following reasons, this court grants the respondent’s motion for summary
judgment and denies the application for a writ of mandamus.
{¶2} Attached to the summary judgment motion are copies of three certified
journal entries dated April 15, 2014. The journal entry for Case No. CR-13-576800-A
grants 59 days of jail-time credit, and the entry for Case No. CR-13-578700-B grants 58
days of jail-time credit. In the entry for Case No. CR-13-570585-A, the judge denied
the motion as moot because the court had terminated community control sanctions and
released Pope from this case on December 2, 2013. These entries establish that the
respondent has fulfilled it’s duty by ruling on the outstanding motions.1 Accordingly,
this mandamus action is moot.
1
The requisites for mandamus are well established: (1) the relator must have a clear legal
right to the requested relief, (2) the respondent must have a clear legal duty to perform the requested
relief and (3) there must be no adequate remedy at law. Additionally, although mandamus may be
used to compel a court to exercise judgment or to discharge a function, it may not control judicial
discretion, even if that discretion is grossly abused. State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118,
515 N.E.2d 914 (1987). Furthermore, mandamus is not a substitute for appeal. State ex rel.
Pressley v. Indus. Comm. of Ohio, 11 Ohio St.2d 141, 228 N.E.2d 631 (1967), paragraph three of the
syllabus.
{¶3} Additionally, Pope’s complaint contains multiple pleading deficiencies.
First, the petition is improperly captioned. Pope styled this petition as “State of Ohio v.
Johnathan Pope.” R.C. 2731.04 requires that an application for a writ of mandamus
“must be by petition, in the name of the state on the relation of the person applying.”
This failure to properly caption a mandamus action is sufficient grounds for denying the
writ and dismissing the petition. Maloney v. Court of Common Pleas of Allen Cty., 173
Ohio St. 226, 181 N.E.2d 270 (1962). Moreover, the failure to caption the case correctly
creates uncertainty as to the identity of the respondent. This court has held that this
deficiency alone also warrants dismissal. State ex rel. Calloway v. Court of Common
Pleas of Cuyahoga Cty., 8th Dist. Cuyahoga No. 71699, 1997 Ohio App. LEXIS 79452(Feb. 27, 1997); and Jordan v. Cuyahoga Cty. Court of Common Pleas, 8th Dist.
Cuyahoga No. 96013, 2011-Ohio-1813.
{¶4} The relator has also failed to comply with R.C. 2969.25 that requires an
affidavit that describes each civil action or appeal filed by the relator within the previous
five years in any state or federal court. The relator’s failure to comply with R.C.
2969.25 warrants dismissal of a mandamus complaint. State ex rel. Zanders v. Ohio
Parole Bd., 82 Ohio St.3d 421, 696 N.E.2d 594 (1994), and State ex rel. Alford v.
Winters, 80 Ohio St.3d 285, 685 N.E.2d 1242 (1997). Relator also did not comply with
R.C. 2969.25(C), which requires that an inmate file a certified statement from his prison
cashier setting forth the balance in his private account for each of the preceding six
months. This also is sufficient reason to deny the mandamus, deny indigency status and
assess costs against the relator. State ex rel. Pamer v. Collier, 108 Ohio St.3d 492,
2006-Ohio-1507, 844 N.E.2d 842; State ex rel. Hunter v. Cuyahoga Cty. Court of
Common Pleas, 88 Ohio St.3d 176, 724 N.E.2d 420 (2000); and Hazel v. Knab, 130 Ohio
St.3d 22, 2011-Ohio-4608, 955 N.E.2d 378.
{¶5} Additionally, the relator failed to support his complaint with an affidavit
“specifying the details of the claim” as required by Loc.App.R. 45(B)(1)(a). State ex rel.
Leon v. Cuyahoga Cty. Court of Common Pleas, 123 Ohio St.3d 124, 2009-Ohio-4688,
914 N.E.2d 402; and State ex rel. Wilson v. Calabrese, 8th Dist. Cuyahoga No. 70077,
1996 Ohio App. LEXIS 6213 (Jan. 18, 1996).
{¶6} Accordingly, the court grants the respondent’s motion for summary judgment
and denies the writ. Costs assessed against the relator. This court directs the clerk of
court to serve upon the parties notice of this judgment and its date of entry upon the
journal. Civ.R. 58(B).
LARRY A. JONES, SR., PRESIDING JUDGE
TIM McCORMACK, J., and
MELODY J. STEWART, J., CONCUR