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 2022-09

State ex rel. Calo v. Gallagher , 2022 Ohio 3435 ( 2022 )


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  • [Cite as State ex rel. Calo v. Gallagher,
    2022-Ohio-3435
    .]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, EX REL.                                   :
DENNIS CALO,
Relator,                                :
No. 111804
v.                                      :
JUDGE HOLLIE GALLAGHER,                                  :
Respondent.                             :
JOURNAL ENTRY AND OPINION
JUDGMENT: WRIT DENIED
DATED: September 27, 2022
Writ of Procedendo and Mandamus
Motion No. 557525
Order No. 558191
Appearances:
Dennis Calo, pro se.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and James E. Moss, Assistant Prosecuting
Attorney, for respondent.
KATHLEEN ANN KEOUGH, P.J.:
Dennis Calo, the relator, has filed a complaint for a writ of
procedendo and mandamus. Calo seeks an order from this court that compels Judge
Hollie Gallagher, the respondent, to render a ruling with regard to a motion to
“vacate illegal conviction and sentence” filed in State v. Calo, Cuyahoga C.P. No. CR-
83-186387-B on October 28, 2019. Judge Gallagher has filed a motion for summary
judgment that is granted.
Attached to the motion for summary judgment is a copy of a judgment
entry, journalized August 19, 2022, which demonstrates that Judge Gallagher has
denied Calo’s motion to vacate illegal sentence and conviction.             Relief is
unwarranted because the request for a writ of procedendo and mandamus is moot.
Procedendo or mandamus will not compel the performance of a duty that has
already been performed. State ex rel. Ames v. Pokorny,
    164 Ohio St.3d 538
    , 2021-
Ohio-2070,
    173 N.E.3d 1208
    ; Thompson v. Donnelly,
    155 Ohio St.3d 184
    , 2018-
Ohio-4073,
    119 N.E.3d 1292
    ; State ex rel. S.Y.C. v. Floyd, 8th Dist. Cuyahoga No.
109602,
    2020-Ohio-5189
    . See also State ex rel. Williams v. Croce,
    153 Ohio St.3d 348
    ,
    2018-Ohio-2703
    ,
    106 N.E.3d 55
    ; State ex rel. Hopson v. Cuyahoga Cty. Court
of Common Pleas,
    135 Ohio St.3d 456
    ,
    2013-Ohio-1911
    ,
    989 N.E.2d 49
    ; State ex rel.
Fontanella v. Kontos,
    117 Ohio St.3d 514
    ,
    2008-Ohio-1431
    ,
    885 N.E.2d 220
    .
In addition, Calo’s complaint for procedendo and mandamus is
defective. Calo has failed to comply with R.C. 2969.25(C), which mandates that the
complaint contain a statement certified by the institutional cashier setting forth the
balance in the inmate’s account for the preceding six months per R.C. 2969.25(C).
State ex rel. Neil v. French,
    153 Ohio St.3d 271
    ,
    2018-Ohio-2692
    ,
    104 N.E.3d 764
    .
Finally, the failure to comply with R.C. 2969.25(C) cannot be cured by an amended
complaint. State ex rel. Hall v. Mohr,
    140 Ohio St.3d 297
    ,
    2014-Ohio-3735
    ,
    17 N.E.3d 581
    .
Accordingly, we grant Judge Gallagher’s motion for summary
judgment. Costs waived. The court directs the clerk of courts to serve all parties
with notice of this judgment and the date of entry upon the journal as required by
Civ.R. 58(B).
Writ denied.
_____________________________        __
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
MICHELLE J. SHEEHAN, J., CONCUR