Infante v. Astrab , 2011 Ohio 4264 ( 2011 )

[Cite as Infante v. Astrab, 2011-Ohio-4264.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96763
STATE OF OHIO, EX REL.
ENGRACIO INFANTE, JR.
RELATOR
vs.
MICHAEL ASTRAB, JUDGE
RESPONDENT
JUDGMENT:
WRIT DENIED
Writ of Mandamus
Motion No.444719
Order No. 447107
RELEASE DATE: August 24, 2011
FOR RELATOR
Engracio Infante, Jr., pro se
Inmate No. 434-216
Lake Erie Correctional Institution
501 Thompson Road
Conneaut, Ohio 44030
ATTORNEYS FOR RESPONDENT
William D. Mason
Cuyahoga County Prosecutor
BY: James E. Moss
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Relator, Engracio Infante, Jr., requests that this court issue a
writ of mandamus compelling respondent judge 1 to rule on the motion to
vacate void judgment and request for de novo sentencing hearing filed in
State v. Infante, Cuyahoga County Court of Common Pleas Case No.
CR-425246 on November 15, 2010.
The original respondent was former judge Bridget McCafferty. In a prior entry, we
1
recognized that Judge Michael Astrab succeeded her in office and instructed the clerk to substitute
Judge Michael Astrab as the respondent and to change the caption accordingly. See Civ.R. 25(D).
{¶ 2} Respondent has filed a motion for summary judgment attached to
which is a copy of a journal entry issued by respondent and received for filing
by the clerk on May 11, 2011 in which respondent scheduled a hearing on
Infante’s motion for May 27, 2011. A review of the docket in Case No.
CR-425246 reflects that, by entry received for filing by the clerk on June 30,
2011, respondent denied the motion to vacate void judgment in part, OSJ.
See Nicholson v. Nicholson, Cuyahoga App. No. 86861, 2005-Ohio-5431(taking judicial notice of the docket in the underlying case to determine
mootness). Attached to the June 30, 2011 entry is a journal entry dated May
27, 2011 and filed on May 31, 2011. In that entry, respondent acknowledged
the filing of the motion to vacate void judgment and request for de novo
sentencing hearing. Respondent held that Infante was not entitled to de
novo sentencing, but the court would impose postrelease control.
{¶ 3} Infante has not opposed respondent’s motion for summary
judgment pending before this court. Respondent argues that this action is
moot. We agree.
{¶ 4} Additionally, Loc.App.R. 45(B)(1)(a) provides, in part: “All
complaints must contain the specific statements of fact upon which the claim
of illegality is based and must be supported by an affidavit from the plaintiff
or relator specifying the details of the claim.” Infante has not supported his
complaint with the affidavit required by Loc.App.R. 45(B)(1)(a), which
provides a basis for dismissal. See Jordan v. Cuyahoga Cty. Court of
Common Pleas, Cuyahoga App. No. 96013, 2011-Ohio-1813.
{¶ 5} “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, and State ex rel. Hunter v. Cuyahoga
Cty. Court of Common Pleas, 88 Ohio St.3d 176, 2000-Ohio-285, 724 N.E.2d
420.” Majid v. Sutula, Cuyahoga App. No. 97019, 2011-Ohio-3993, ¶5.
{¶ 6} Accordingly, respondent’s motion for summary judgment 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).
Writ denied.
FRANK D. CELEBREZZE, JR., JUDGE
PATRICIA A. BLACKMON, P.J., and
MELODY J. STEWART, J., CONCUR