Perry v. State

2013 Ohio 4367

• Court: Ohio Court of Appeals
• Decided: September 30, 2013
• Docket: 13 MA 115
• Status: Published

Opinion

[Cite as Perry v. State, 2013-Ohio-4367.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

MORRIS J. PERRY, SR. ) CASE NO. 13 MA 115 ) RELATOR ) ) VS. ) OPINION AND ) JUDGMENT ENTRY STATE OF OHIO ) YOUNGSTOWN, OHIO ) MUNICIPAL COURT JUDGE ) ROBERT MILICH ) ) RESPONDENT )

CHARACTER OF PROCEEDINGS: Complaint for Writ of Mandamus

JUDGMENT: Dismissed.

APPEARANCES:

For Relator: Morris J. Perry, Sr., Pro se #35623-060 Federal Correctional Institution P.O. Box 1000 Loretto, PA 15940

For Respondent: Atty. Anthony J. Farris Law Director for the City of Youngstown 26 S. Phelps Street Youngstown, Ohio 44503

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Joseph J. Vukovich Dated: September 30, 2013 [Cite as Perry v. State, 2013-Ohio-4367.] PER CURIAM.

{¶1} Relator Morris J. Perry, Sr., a criminal offender currently incarcerated in

the Loretto Pennsylvania Federal Correctional Institution, has filed a complaint for

writ of mandamus against Judge Robert Milich of the Youngstown Municipal Court.

Relator asks us to grant a writ ordering Judge Milich to vacate a misdemeanor theft

conviction. Relator contends that his statutory speedy trial rights were violated.

Unfortunately for Relator, the claim that he was denied the right to a speedy trial is

not cognizable in a mandamus action. State ex rel. Jackim v. Ambrose, 118 Ohio

St.3d 512, 2008-Ohio-3182, 890 N.E.2d 324, ¶6.

{¶2} A writ of mandamus is an extraordinary remedy that is issued “only in

cases of extreme necessity, because of the absence or inadequacy of other

remedies * * *.” State ex rel. Utility Workers Union of America, AFL-CIO Local 349 v.

Macelwane, 116 Ohio App. 183, 191, 187 N.E.2d 901 (6th Dist.1961). Relator had

an adequate remedy by way of direct appeal of his misdemeanor conviction to raise

the speedy trial issue. State ex rel. Barr v. Pittman, 127 Ohio St.3d 32, 2010-Ohio-

4989, 936 N.E.2d 43, ¶1.

{¶3} Relator also failed to file the required affidavit describing all civil actions

and appeals he has filed within the past five years, as set forth in R.C. 2969.25(A).

For example, he filed a habeas action in this Court just a few months ago. Perry v.

Greene, 7th Dist. No. 13 MA 33, 2013-Ohio-1879. Compliance with R.C. 2969.25(A)

is mandatory, and failure to satisfy the statutory requirements is grounds for

dismissal. State ex rel. Washington v. Ohio Adult Parole Auth., 87 Ohio St.3d 258,

259, 719 N.E.2d 544 (1999). -2-

{¶4} For the aforementioned reasons, we dismiss Relator's complaint for writ

of mandamus. Costs taxed against Relator. Final order. Clerk to give notice on the

parties as required by the Ohio Rules of Civil Procedure.

Waite, J., concurs.

Donofrio, J., concurs.

Vukovich, J., concurs.