State ex rel. Holmes v. State

2014 Ohio 4642

• Court: Ohio Court of Appeals
• Decided: October 20, 2014
• Docket: 2014CA0010
• Status: Published

Opinion

[Cite as State ex rel. Holmes v. State, 2014-Ohio-4642.]

COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO, EX REL., SCOTT : Hon. W. Scott Gwin, P.J. HOLMES : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. Relator : : -vs- : Case No. 2014CA0010 : STATE OF OHIO : : OPINION Respondent

CHARACTER OF PROCEEDING: Writ of Mandamus

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: October 20, 2014

APPEARANCES:

For Relator For Respondent

SCOTT A. HOLMES Pro Se BENJAMIN E. HALL L.E.C.I. Assistant Prosecuting Attorney Box 56 318 Chestnut Street Lebanon, OH 45036 Coshocton, OH 43812 [Cite as State ex rel. Holmes v. State, 2014-Ohio-4642.]

Gwin, P.J.

{¶1} Relator, Scott Holmes, has filed a Petition for Writ of Mandamus

requesting this Court grant Relator the right to appeal his sentence in his criminal case

which was filed on September 16, 2010. The petition names Prosecutor Jason Givens

as the Respondent.

{¶2} For a writ of mandamus to issue, the relator must have a clear legal right

to the relief prayed for, the respondent must be under a clear legal duty to perform the

requested act, and relator must have no plain and adequate remedy in the ordinary

course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50,

451 N.E.2d 225.

{¶3} Respondent has filed a motion to dismiss the complaint arguing the issue

presented in the petition is res judicata because Relator has already pursued a request

for delayed appeal which was denied by this Court.

{¶4} Relator is an inmate at the Ohio Department of Corrections. He has not

filed an affidavit listing all prior civil actions as required by R.C. 2969.25 which provides,

(A) At the time that an inmate commences a civil action or appeal

against a government entity or employee, the inmate shall file with the

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 affidavit shall include all of the following for

each of those civil actions or appeals:

(1) A brief description of the nature of the civil action or appeal; Coshocton County, Case No. 2014CA0010 3

(2) The case name, case number, and the court in which the civil

action or appeal was brought;

(3) The name of each party to the civil action or appeal;

(4) The outcome of the civil action or appeal, including whether the

court dismissed the civil action or appeal as frivolous or malicious under

state or federal law or rule of court, whether the court made an award

against the inmate or the inmate's counsel of record for frivolous conduct

under section 2323.51 of the Revised Code, another statute, or a rule of

court, and, if the court so dismissed the action or appeal or made an

award of that nature, the date of the final order affirming the dismissal or

award.

Ohio Rev. Code Ann. § 2969.25.

{¶5} “The requirements of R.C. 2969.25 are mandatory and failure to comply

with them requires dismissal of an inmate's complaint. State ex rel. Washington v. Ohio

Adult Parole Auth., 87 Ohio St.3d 258, 259, 719 N.E.2d 544 (1999), citing State ex rel.

Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421, 422, 696 N.E.2d 594 (1998). As held by

the court of appeals, the affidavit required by R.C. 2969.25(A) must be filed at the time

the complaint is filed, and an inmate may not cure the defect by later filings. Fuqua v.

Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, 797 N.E.2d 982, ¶ 9 (an inmate's

“belated attempt to file the required affidavit does not excuse his noncompliance. See

R.C. 2969.25(A), which requires that the affidavit be filed ‘[a]t the time that an inmate

commences a civil action or appeal against a government entity or employee.’ ”

[emphasis sic] ).” State ex rel. Hall v. Mohr, 2014-Ohio-3735. Coshocton County, Case No. 2014CA0010 4

{¶6} Because Relator did not file the required affidavit, we must dismiss the

petition.

{¶7} Even had we considered the merits of the petition, we would not have

granted the request for writ of mandamus. Relator has cited no authority for the

proposition that Respondent, Jason Givens, has a clear legal duty or even ability to

provide Relator with an appeal.

{¶8} Based upon the foregoing, this cause is dismissed.

By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur