State ex rel. Talley v. Calabrese ( 2014 )

[Cite as State ex rel. Talley v. Calabrese, 2014-Ohio-4098.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101635
STATE OF OHIO, EX REL.
ANTIONE TALLEY
RELATOR
vs.
JUDGE DEENA R. CALABRESE
RESPONDENT
JUDGMENT:
WRIT DENIED
Writ of Mandamus
Motion No. 477283
Order No. 478020
RELEASE DATE: September 18, 2014
FOR RELATOR
Antione Talley
Inmate #A651-941
Lake Erie Correctional Institution
P.O. Box 8000
501 Thompson Road
Conneaut, Ohio 44030
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Antione Talley (“Talley”) has petitioned this court for a writ of mandamus.
Talley seeks an order from this court that requires Judge Deena R. Calabrese to award
him additional jail-time credit in State v. Talley, Cuyahoga C.P. No. CR-11-574581.
Judge Calabrese has filed a motion for summary judgment, which we grant for the
following reasons.
{¶2} Mandamus is precluded if relator has or had an adequate remedy of law even
if relator fails to use it. State ex rel. Nash v. Fuerst, 8th Dist. Cuyahoga No. 99027,
2013-Ohio-592, ¶ 6, citing State ex rel. Tran v. McGrath, 78 Ohio St.3d 45, 676 N.E.2d
108 (1997), and State ex rel. Boardwalk Shopping Ctr., Inc. v. Court of Appeals for
Cuyahoga Cty., 56 Ohio St.3d 33, 564 N.E.2d 86 (1990). “[A] claim for jail-time credit
is remediable in the ordinary course of the law by motion and appeal.” State ex rel.
Franks v. Cosgrove, Judge, 135 Ohio St.3d 249, 2013-Ohio-402, 985 N.E.2d 1264, ¶ 1.
The trial court’s calculation of jail-time credit cannot be addressed through an
extraordinary writ. Powell v. Corrigan, 8th Dist. Cuyahoga No. 98530, 2012-Ohio-5187,
¶ 3, citing State ex rel. Ponsky v. Koch, 8th Dist. Cuyahoga No. 92437, 2009-Ohio-339.
Any error associated with the calculation of jail-time credit must be addressed through a
direct appeal. Id, citing State ex rel. Flakes v. Russo, 8th Dist. Cuyahoga No. 94044,
2009-Ohio-6474 (other citations omitted). Mandamus is not appropriate.
{¶3} It further appears that the petition is moot. Attached to respondent’s motion
for summary judgment are orders dated July 23, 2014, that granted relator 269 days of
jail-time credit in CR-13-573768 and granted him 226 days of jail-time credit in
CR-13-574581. “Neither procedendo nor mandamus will compel the performance of a
duty that has already been performed.” State ex rel. Fontanella v. Kantos, 117 Ohio
St.3d 514, 2008-Ohio-1431, 885 N.E.2d 220, ¶ 6.
{¶4} In addition, Talley’s petition is defective for failure to comply with Loc.R.
45(B)(1)(a). The failure to comply with the supporting affidavit provision of Loc.App.R.
45(B)(1)(a) requires dismissal of the action. State ex rel. Leon v. Cuyahoga Cty. Court
of Common Pleas, 8th Dist. Cuyahoga No. 92826, 2009-Ohio-1612, aff'd, 123 Ohio St.3d
124, 2009-Ohio-4688, 914 N.E.2d 402.
{¶5} Accordingly, we grant Judge Calabrese’s motion for summary judgment.
Respondent to pay costs. Costs waived. This court directs the clerk of courts to serve
all parties with notice of this judgment and its date of entry upon the journal as required
by Civ.R. 58(B).
{¶6} Writ denied.
EILEEN T. GALLAGHER, JUDGE
MARY J. BOYLE, A.J., and
MELODY J. STEWART, J., CONCUR
KEY WORDS:
#101635 - S/O Ex Rel. Antione Talley v. Judge Deena R. Calabrese
Writ of mandamus; adequate remedy at law; appeal; motion for jail time credit;
calculation of jail time credit. Relator is not entitled to a writ of mandamus to compel an
order for jail time credit because he has a remedy in the ordinary course of the law by
motion and appeal. Additionally, respondent issued orders granting jail time credit
rendering the petition for mandamus moot.