Walker v. Russo, 89769 (6-12-2007)

Ohio Court of Appeals

Walker v. Russo, 89769 (6-12-2007)

2007 Ohio 2912

CourtOhio Court of Appeals

DecidedJune 12, 2007

DocketNo. 89769.

StatusPublished

This text of 2007 Ohio 2912 (Walker v. Russo, 89769 (6-12-2007)) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Walker v. Russo, 89769 (6-12-2007), 2007 Ohio 2912 (Ohio Ct. App. 2007).

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JOURNAL ENTRY AND OPINION {¶ 1} Relator, Eric Walker, is the defendant in State v. Walker, Cuyahoga County Court of Common Pleas Case No. CR-455849, and remains incarcerated. Respondent judge of the court of common pleas is assigned to Case No. CR-455849.

{¶ 2} Walker appealed his conviction and sentence and this court affirmed the judgment of conviction but vacated Walker's sentence and remanded the case to the court of common pleas for further proceedings.State v. Walker, Cuyahoga App. No. 87677, 2006-Ohio-6188.

{¶ 3} Walker requests that this court issue a writ of mandamus compelling respondent judge to issue an order requiring that Walker be returned to Cuyahoga *Page 3

County for resentencing. Respondent has, however, filed a motion to dismiss, attached to which is a copy of a journal entry received for filing on March 16, 2007 in Case No. CR-455849 in which respondent resentenced Walker. Walker has not filed a response to the motion to dismiss. Respondent argues that this action is moot. We agree.

{¶ 4} We note that dismissal is appropriate in this case despite the fact that the motion to dismiss presents matters outside the pleading. Civ.R. 12(B) and 56. A court may take judicial notice of mootness. "In fact, `an event that causes a case to be moot may be proved by extrinsic evidence outside the record.' Pewitt v. Lorain Correctional Inst (1992),64 Ohio St.3d 470, 472, 597 N.E.2d 92,94." State ex rel. Nelson v.Russo (2000), 89 Ohio St.3d 227, 228, 2000-Ohio-141, 729 N.E.2d 1181. As a consequence, we take judicial notice of the mootness of this action in light of the fact that respondent issued a journal entry resentencing Walker.

{¶ 5} We also note that the complaint has several defects. The action is not on relation of the state as required by R.C. 2731.04. Walker has not included his address in the caption as required by Civ.R. 10(A). Also, despite Walker's averment to the contrary, he has failed to include a certified copy of the prison cashier's statement of the balance in his inmate account as required by R.C. 2969.25(C).

{¶ 6} Accordingly, respondent's motion to dismiss is granted. Relator to pay costs. The clerk is directed to serve upon the parties notice of this judgment and its date of entry upon the journal. Civ.R. 58(B). *Page 4 Complaint dismissed.

SEAN C. GALLAGHER, J., and PATRICIA A. BLACKMON, J., CONCUR

*Page 1

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JOURNAL ENTRY AND OPINION {¶ 1} Relator, Eric Walker, is the defendant in State v. Walker, Cuyahoga County Court of Common Pleas Case No. CR-455849, and remains incarcerated. Respondent judge of the court of common pleas is assigned to Case No. CR-455849.

{¶ 2} Walker appealed his conviction and sentence and this court affirmed the judgment of conviction but vacated Walker's sentence and remanded the case to the court of common pleas for further proceedings.State v. Walker, Cuyahoga App. No. 87677, 2006-Ohio-6188.

{¶ 3} Walker requests that this court issue a writ of mandamus compelling respondent judge to issue an order requiring that Walker be returned to Cuyahoga *Page 3

County for resentencing. Respondent has, however, filed a motion to dismiss, attached to which is a copy of a journal entry received for filing on March 16, 2007 in Case No. CR-455849 in which respondent resentenced Walker. Walker has not filed a response to the motion to dismiss. Respondent argues that this action is moot. We agree.

{¶ 4} We note that dismissal is appropriate in this case despite the fact that the motion to dismiss presents matters outside the pleading. Civ.R. 12(B) and 56. A court may take judicial notice of mootness. "In fact, `an event that causes a case to be moot may be proved by extrinsic evidence outside the record.' Pewitt v. Lorain Correctional Inst (1992),64 Ohio St.3d 470, 472, 597 N.E.2d 92,94." State ex rel. Nelson v.Russo (2000), 89 Ohio St.3d 227, 228, 2000-Ohio-141, 729 N.E.2d 1181. As a consequence, we take judicial notice of the mootness of this action in light of the fact that respondent issued a journal entry resentencing Walker.

{¶ 5} We also note that the complaint has several defects. The action is not on relation of the state as required by R.C. 2731.04. Walker has not included his address in the caption as required by Civ.R. 10(A). Also, despite Walker's averment to the contrary, he has failed to include a certified copy of the prison cashier's statement of the balance in his inmate account as required by R.C. 2969.25(C).

{¶ 6} Accordingly, respondent's motion to dismiss is granted. Relator to pay costs. The clerk is directed to serve upon the parties notice of this judgment and its date of entry upon the journal. Civ.R. 58(B). *Page 4 Complaint dismissed.

SEAN C. GALLAGHER, J., and PATRICIA A. BLACKMON, J., CONCUR

*Page 1

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