State ex rel. Dines v. Villanueva

2013 Ohio 5137

• Court: Ohio Court of Appeals
• Decided: November 15, 2013
• Docket: 100381
• Status: Published

Opinion

[Cite as State ex rel. Dines v. Villanueva, 2013-Ohio-5137.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100381

STATE OF OHIO EX REL. NOAH DINES RELATOR

vs.

JUDGE JOSE VILLANUEVA RESPONDENT

JUDGMENT: WRIT DENIED

Writ of Mandamus Motion No. 468939 Order No. 469650

RELEASE DATE: November 15, 2013 FOR RELATOR

Noah Dines, pro se Inmate No. 521522 Marion Correctional Institution P.O. Box 57 Marion, Ohio 43301

ATTORNEYS FOR RESPONDENT

Timothy J. McGinty Cuyahoga County Prosecutor BY: James E. Moss Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., P.J.:

{¶1} Noah Dines, relator, has petitioned this court to issue a writ of mandamus to

compel the trial court to rule on motions he filed in State v. Dines, Cuyahoga C.P. No.

CR-479797-A. Specifically, relator seeks to compel rulings on the following motions: a

motion to withdraw guilty plea filed on February 4, 2013; a “motion for issuance of a

final appealable order and vacation of sentence” filed on February 25, 2013; and a motion

for “establishment of date certain for oral hearing, appointment of counsel and issuance

of a final appealable order” filed on March 18, 2013. Respondent has filed a motion for

summary judgment based on pleading deficiencies and mootness. For the reasons that

follow, we grant respondent’s motion for summary judgment and deny relator’s complaint

for writ of mandamus.

{¶2} Loc.App.R. 45(B)(1)(a) provides that a complaint for an extraordinary writ

must be supported by a sworn affidavit that specifies the details of relator’s claim. A

simple statement that verifies that relator has reviewed the complaint and that the contents

are true and accurate does not satisfy the mandatory requirement under Loc.App.R.

45(B)(1)(a). State ex rel. Jones v. McGinty, 8th Dist. Cuyahoga No. 92602,

2009-Ohio-1258; State ex rel. Mayes v. Ambrose, 8th Dist. Cuyahoga No. 91980,

2009-Ohio-25; James v. Callahan, 8th Dist. Cuyahoga No. 89654, 2007-Ohio-2237.

{¶3} The Supreme Court of Ohio upheld this court’s ruling that merely stating in

an affidavit that the complaint was true and correct was insufficient to comply with the local rule. State ex rel. Leon v. Cuyahoga Cty. Court of Common Pleas, 123 Ohio St.3d

124, 2009-Ohio-4688, 914 N.E.2d 402. On that basis, relator has failed to support his

complaint with an affidavit “specifying the details of the claim” as required by

Loc.App.R. 45(B)(1)(a). Id.; State ex rel. Wilson v. Calabrese, 8th Dist. Cuyahoga No.

70077, 1996 Ohio App. LEXIS 6213 (Jan. 18, 1996).

{¶4} Relator has further failed to comply with R.C. 2969.25 by failing to file an

affidavit detailing his prior civil filings. The Ohio Supreme Court has held, “The

requirements of R.C. 2969.25 are mandatory, and failure to comply with them subjects an

inmate’s action to dismissal.” State ex rel. White v. Bechtel, 99 Ohio St.3d 11,

2003-Ohio-2262, 788 N.E.2d 634, ¶ 5. Noncompliance with R.C. 2969.25 warrants

dismissal. State ex rel. Graham v. Niemeyer, 106 Ohio St.3d 466, 466-467,

2005-Ohio-5522, 835 N.E.2d 1250.

{¶5} R.C. 2969.25(C) requires an inmate who is seeking waiver of prepayment of

the court’s full filing fee to file a certified statement from his prison cashier setting forth

the balance in his private account for each of the preceding six months. Relator’s failure

to comply with R.C. 2969.25(C) warrants dismissal of his complaint. State ex rel.

Alford v. Winters, 80 Ohio St.3d 285, 685 N.E.2d 1242 (1997).

{¶6} The complaint is also moot. Respondent’s motion for summary judgment

includes an attached copy of the trial court’s entry that was journalized on October 2,

2013, which demonstrates that a ruling has been rendered with regard to relator’s

motions, which were granted in part. The trial court has scheduled the matter for a limited resentencing hearing. “[R]elief is unwarranted because mandamus and

procedendo will not compel the performance of a duty that has already been performed.”

State ex rel. Hopson v. Cuyahoga Cty. Court of Common Pleas, 135 Ohio St.3d 456,

2013-Ohio-1911, 989 N.E.2d 49, ¶ 4.

{¶7} Accordingly, we grant respondent’s motion for summary judgment and deny

relator’s complaint for writ of mandamus. Costs are assessed against relator, but

waived. The court directs the clerk of court to serve all parties with notice of this

judgment and its date of entry upon the journal as required by Civ.R. 58(B).

{¶8} Writ denied.

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

MARY EILEEN KILBANE, J., and EILEEN T. GALLAGHER, J., CONCUR