State ex rel. McCabe v. State

2018 Ohio 1138

• Court: Ohio Court of Appeals
• Decided: March 26, 2018
• Docket: 18-CA-00003
• Status: Published

Opinion

[Cite as State ex rel. McCabe v. State, 2018-Ohio-1138.]

COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO, EX REL. : Hon. W. Scott Gwin, P.J. DONALD E. MCCABE : Hon. William B. Hoffman, J. : Hon. Earle E. Wise, J. Relator : : -vs- : Case No. 18-CA-00003 : STATE OF OHIO : : OPINION Respondent

CHARACTER OF PROCEEDING: Petition for Writ of Mandamus

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: March 26, 2018

APPEARANCES:

For Relator For Respondent

DONALD E. MCCABE, # 277.786 Marion Correctional Institution Box 57 Marion, OH 43301 [Cite as State ex rel. McCabe v. State, 2018-Ohio-1138.]

Gwin, P.J.

{¶1} Relator, Donald McCabe, has filed a Petition for Writ of Mandamus

requesting Respondent be ordered to provide Relator with a scheduling order for an

appeal Relator filed in this Court.

{¶2} “To be entitled to a writ of mandamus, the [relator] must establish by clear

and convincing evidence a clear legal right to the requested relief and a clear legal duty

on the part of respondent to provide the relief. “ State ex rel. Cincinnati Enquirer v. Ohio

Dept. of Pub. Safety, 148 Ohio St.3d 433, 2016-Ohio-7987, 71 N.E.3d 258, ¶ 28.

{¶3} Relator specifically believes he is entitled to a “Scheduling Order” which

would include (1) the case number (2) the calendar assignment (3) the due date(s) for the

brief(s). Relator has not cited any authority for the proposition he has a clear legal right

to a “scheduling order.” Further, he has not cited any authority for the contention that the

Respondent, the State of Ohio, is required to provide a scheduling order.

{¶4} All initial due dates for briefs in the Fifth District Court of Appeals are

calculated according to Rule 18 and Rule 11.1(C) of the Ohio Rules of Appellate

Procedure and not by a scheduling order. The record in Relator’s appeal, Perry County

Case Number 17-CA-00010, indicates Relator was served with a copy of the Appellate

Rule 11 (B) notice of transmission of the record. This notice contained the case number.

Further, this notice triggers the due date for Relator’s appellate brief.

{¶5} Relator elected on his Docketing Statement to have his case assigned to

the Accelerated Calendar in Case Number 17-CA-00010, therefore, the case was placed

on the Accelerated Calendar. The State of Ohio, the respondent named in the Petition,

has no duty to advise an appellant of the calendar an appellant elects for his own case. Perry County, Case No. 18-CA-00003 3

{¶6} Finally, Relator had an adequate remedy at law to obtain the case number

and calendar assignment from the clerk of courts.

{¶7} Because Relator has failed to demonstrate a clear legal duty on the part of

Respondent to provide a scheduling order and has failed to demonstrate a clear legal

right to a scheduling order, the petition for writ of mandamus is dismissed for failure to

state a claim upon which relief may be granted.

By Gwin, P.J.,

Hoffman, J., and

Wise, Earle, J., concur