Marshman v. State

2018 Ohio 4322

• Court: Ohio Court of Appeals
• Decided: October 24, 2018
• Docket: 107537
• Status: Published

Opinion

[Cite as Marshman v. State, 2018-Ohio-4322.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 107537

MICHAEL MARSHMAN

PETITIONER

vs.

STATE OF OHIO

RESPONDENT

JUDGMENT: PETITION DENIED

Writ of Habeas Corpus Motion No. 520296 Order No. 520781

RELEASE DATE: October 24, 2018 FOR PETITIONER

Michael Marshman, pro se Inmate No. 0326983 Cuyahoga County Jail P.O. Box 5600 Cleveland, Ohio 44101

ATTORNEYS FOR RESPONDENT

Michael C. O’Malley Cuyahoga County Prosecutor By: Frank Romeo Zeleznikar Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113

EILEEN A. GALLAGHER, A.J.:

{¶1} Michael Marshman seeks a writ of habeas corpus based upon the allegation of

preindictment delay in State v. Marshman, Cuyahoga C.P. No. CR-16-604668. For the

following reasons, we decline to issue a writ of habeas corpus.

{¶2} Initially, we find that the request for a writ of habeas corpus is procedurally

defective. Marshman has failed to provide this court with any commitment papers in violation

of R.C. 2725.04(D). The failure to provide this court with the basis of commitment is fatal to a

request for a writ of habeas corpus. State ex rel. McCuller v. Callahan, 98 Ohio St.3d 307,

2003-Ohio-858, 784 N.E.2d 108, citing State ex rel. Johnson v. Ohio Dept. of Rehab. & Corr., 95

Ohio St.3d 70, 71, 765 N.E.2d 356 (2002); Malone v. Lane, 96 Ohio St.3d 415, 2002-Ohio4908, 775 N.E.2d 527; and Chari v. Vore, 91 Ohio St.3d 323, 328, 744 N.E.2d 763 (2001). Moreover,

Marshman did not comply with the verification requirement of R.C. 2725.04. Malone at ¶ 6;

Chari at 328.

{¶3} Second, Marshman failed to file the affidavit of prior civil actions mandated by

R.C. 2969.25(A). That statute requires an inmate who commences an action against a

government entity to file with this court an affidavit that contains a description of each civil

action or appeal of a civil action that the inmate has filed in the previous five years in any state or

federal court. The requirement of R.C. 2969.25(A)(1) is mandatory, and failure to comply with

it subjects an inmate’s action to dismissal. State ex rel. McGrath v. McDonnell, 126 Ohio St.3d

511, 2010-Ohio-4726, 935 N.E.2d 830; State ex rel. White v. Bechtel, 99 Ohio St.3d 11,

2003-Ohio-2262, 788 N.E.2d 634.

{¶4} Third, R.C. 2969.25(C) requires that any inmate filing a civil action against a

government entity or employee in forma pauperis submit with their complaint an affidavit of

indigency and a statement that sets forth the balance in the inmate account for each of the

preceding six months, as certified by the institutional cashier. Marshman did not provide a

statement that sets forth the balance of his inmate account for the preceding six months, as

required by R.C. 2969.25(C)(1). The requirements of R.C. 2969.25(C) are mandatory and

failure to comply with them subjects the complaint to dismissal. Hazel v. Knab, 130 Ohio St.3d

22, 2011-Ohio-4608, 955 N.E.2d 378.

{¶5} Fourth, Civ.R. 10(A) requires Marshman to list the proper parties and their

respective addresses in the case caption. See, e.g., Kneuss v. Sloan, 146 Ohio St.3d 248,

2016-Ohio-3310, 54 N.E.3d 1242; State ex rel. Sherrills v. State, 91 Ohio St.3d 133, 742 N.E.2d 651 (2001). The caption on Marshman’s petition fails to contain the name of any proper party

or the address of any party.

{¶6} Finally, Marshman filed a motion for dismissal of the indictment based upon

preindictment delay, which was denied by the trial court on June 13, 2018. Marshman

possesses an adequate remedy at law in that he may appeal the denial of his motion to dismiss for

preindictment delay. Plassman v. Ohio Adult Parole Auth., 141 Ohio St.3d 14,

2014-Ohio-4033, 21 N.E.3d 271, citing Arnett v. Sheets, 4th Dist. Ross No. 10CA3156,

2010-Ohio-3985, citing State ex rel. Rowe v. McCown, 108 Ohio St.3d 183, 2006-Ohio-548, 842

N.E.2d 51.

{¶7} Accordingly, we grant the motion for summary judgment as filed by the Cuyahoga

County Prosecutor. Costs to Marshman. The court directs the clerk of courts to serve all

parties with notice of this judgment and the date of entry upon the journal as required by Civ.R.

58(B).

{¶8} Petition denied.

EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE

EILEEN T. GALLAGHER, J., and PATRICIA ANN BLACKMON, J., CONCUR