State ex rel. Iacovone v. Matia

2011 Ohio 3479

• Court: Ohio Court of Appeals
• Decided: July 8, 2011
• Docket: 96530
• Status: Published

Opinion

[Cite as State ex rel. Iacovone v. Matia, 2011-Ohio-3479.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96530

STATE OF OHIO EX REL., ORSINO IACOVONE RELATOR

vs.

HONORABLE DAVID T. MATIA RESPONDENT

JUDGMENT: WRIT DENIED

Writ of Mandamus Motion No. 443553 Order No. 445735

RELEASE DATE: July 8, 2011

FOR RELATOR

Orsino Iacovone, Pro Se Inmate No. 570-904 Lebanon Correctional Institution P.O. Box 56 Lebanon, OH 45036

ATTORNEYS FOR RESPONDENT

William D. Mason Cuyahoga County Prosecutor

By: James E. Moss Assistant County Prosecutor The Justice Center 1200 Ontario Street, 9th Floor Cleveland, Ohio 44113

MELODY J. STEWART, J.:

{¶ 1} On March 14, 2011, the relator, Orsino Iacovone, commenced this mandamus

action against the respondent judge to compel the judge to rule on a motion to vacate sentence

which Iacovone filed on October 4, 2010, in the underlying case, State v. Iacovone, Cuyahoga

County Common Pleas Court Case No. CR-490883. On April 8, 2011, the respondent, 1

Iacovone named Judge David T. Matia as the respondent. However, Judge John O’Donnell 1

was the judge assigned to the underlying case and the proper respondent. The Cuyahoga County prosecutor filed the motion for summary judgment on behalf of Judge O’Donnell. through the Cuyahoga County prosecutor, moved for summary judgment on the grounds of

mootness and pleading deficiencies. Iacovone never filed a response. For the following

reasons, this court grants the motion for summary judgment and denies the application for a

writ of mandamus.

{¶ 2} In the underlying case in 2007, Iacovone pleaded guilty to attempted theft, and

the trial court sentenced him to seven months imprisonment and three years of postrelease

control. However, when he was released from prison in 2008, the Ohio Department of

Rehabilitation and Correction (“ODRC”) decided not to place Iacovone on postrelease control

because he would be on parole for an older conviction.

{¶ 3} In 2009, Iacovone pleaded guilty to several other minor criminal offenses.

The respondent judge in the underlying case then found that Iacovone had violated postrelease

control and imposed a prison term for that violation. On October 4, 2010, Iacovone moved

to vacate that sentence because the ODRC had not placed him on postrelease control for the

underlying case. On April 6, 2011, the respondent judge granted the motion to vacate the

subject sentence, because he had confirmed the truth of the allegations from the ODRC. The

respondent judge attached to his summary judgment motion a certified copy of the order

vacating the subject sentence. {¶ 4} That order established that Iacovone had received his requested relief and that

the judge had fulfilled his duty by ruling on the subject motion. Accordingly, this mandamus

action is moot.

{¶ 5} Additionally, the relator failed to support his complaint with an affidavit

“specifying the details of the claim” as required by Loc.R. 45(B)(1)(a). State ex rel. Leon v.

Cuyahoga Cty. Court of Common Pleas, 123 Ohio St.3d 124, 2009-Ohio-4688, 914 N.E.2d

402; State ex rel. Wilson v. Calabrese (Jan. 18, 1996), 8th Dist. No. 70077; and State ex rel.

Smith v. McMonagle (July 17, 1996), 8th Dist. No. 70899. In Leon,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.

{¶ 6} 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.

{¶ 7} Accordingly, the court grants the respondent’s motion for summary judgment

and denies the writ. Costs assessed against the relator. This court directs the clerk of the Eighth District Court of Appeals to serve upon the parties notice of this judgment and its date

of entry upon the journal. Civ.R. 58(B).

Writ denied.

MELODY J. STEWART, JUDGE

MARY EILEEN KILBANE, A.J., and COLLEEN CONWAY COONEY, J., CONCUR