Perry v. Sweeney , 2020 Ohio 119 ( 2020 )

[Cite as Perry v. Sweeney, 2020-Ohio-119.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
MORRIS PERRY, SR.,
Relator,
v.
JUDGE MAUREEN A. SWEENEY, COMMON PLEAS COURT JUDGE,
Respondent.
OPINION AND JUDGMENT ENTRY
Case No. 19 MA 0016
Writ of Mandamus
BEFORE:
Cheryl L. Waite, Carol Ann Robb, David A. D’Apolito, Judges.
JUDGMENT:
Dismissed.
Atty. Paul J. Gains, Mahoning County Prosecutor and Atty. Ralph M. Rivera, Assistant
Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503,
for Plaintiff-Appellee
Morris Perry, Sr., Pro se, Inmate No. 195, Mahoning County Justice Center, 110 Fifth
Avenue, Youngstown, Ohio 44503.
Dated: January 9, 2020
PER CURIAM.
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{¶1} Relator Morris Perry, Sr., proceeding on his own behalf, has filed this
original action for a writ of mandamus asking this Court to compel Respondent Judge
Maureen A. Sweeney of the Mahoning County Common Pleas Court to rule on certain
pretrial motions. These motions were also filed by Relator on his own behalf, although
he is represented by counsel, and involve a pending criminal case in which he is the
defendant. State v. Perry, Mahoning C.P. No. 2018 CR 00997. Counsel for Respondent
has filed a combined answer and motion to dismiss, highlighting procedural deficiencies
in Relator’s petition as well as arguing that it should fail on the substantive merits.
{¶2} The Mahoning County Grand Jury indicted Relator on one count of felony-
life rape. Although the case has a lengthy, complicated, and confusing procedural history,
it remains in the pretrial phase. This is due in large part to Relator’s dissatisfaction with
his first appointed trial counsel, his filing of pretrial motions on his own behalf while
represented by counsel, his unsuccessful attempt to have the trial court judge disqualified
from presiding over the case, and his successful bid to obtain new appointed trial counsel.
{¶3} Generally, a relator may file an original action seeking a writ of mandamus
or a writ of procedendo to compel a court to rule on a pending motion. A writ of mandamus
is an extraordinary remedy which should be exercised by this Court with caution and
issued only when the right is clear. State ex rel. Brown v. Ashtabula Cty. Bd. of Elections,
142 Ohio St.3d 370, 2014-Ohio-4022, 31 N.E.3d 596, ¶ 11. Entitlement to a writ of
mandamus requires the relator to demonstrate: (1) relator has a clear legal right to the
relief, (2) respondent has a clear legal duty to provide that relief, and (3) there is no other
adequate remedy at law. State ex rel. Taxpayers for Westerville Schools v. Franklin Cty.
Bd. of Elections, 133 Ohio St.3d 153, 2012-Ohio-4267, 976 N.E.2d 890, ¶ 12.
Case No. 19 MA 0016
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{¶4} The state argues that Relator’s petition contains three procedural
deficiencies, each of which emanate from R.C. 2969.21 et seq. which imposes certain
procedural requirements on civil actions or appeals brought by inmates. Following his
indictment, Relator was taken into custody and incarcerated in the county jail. While at
one point Relator was released after posting a $50,000.00 surety bond, it appears he
violated the conditions of that bond and has since been returned to the county jail.
Regardless whether Relator is jailed or has been released on bond while awaiting trial,
Relator does not fall within the definition of an “inmate.” An “ ‘inmate’ means a person
who is in actual confinement in a state correctional institution or in a county, multicounty,
municipal, municipal-county, or multicounty-municipal jail or workhouse or a releasee who
is serving a sanction in a violation sanction center.” R.C. 2969.21(D). Relator is not
presently serving a sanction and has not been convicted or sentenced at this time.
Therefore, a different set of procedural requirements apply to his petition.
{¶5} This Court is vested with jurisdiction to hear an original mandamus action
pursuant to Article IV, Section 3(B)(1) of the Ohio Constitution and R.C. 2731.02. There
are three specific requirements for the filing of an application for a writ of mandamus. The
application (1) must be by petition, (2) in the name of the state on the relation of the
person applying, and (3) verified by affidavit. R.C. 2731.04. Relator’s petition does not
meet the second and third requirements: it was not captioned in the name of the state on
the relation of the person applying and it was not verified by affidavit.
{¶6} By itself, Relator’s failure to verify his mandamus petition by affidavit, as
required by R.C. 2731.04, is not a fatal defect since the verification requirements
contained in R.C. 2731.04 have been displaced by Civ.R. 11. State ex rel. Madison v.
Case No. 19 MA 0016
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Cotner, 66 Ohio St.2d 448, 449, 423 N.E.2d 72 (1981); State ex rel. Clark v. Krichbaum,
7th Dist. Mahoning No. 07-MA-66, 2007-Ohio-3185, ¶ 10.
{¶7} However, Relator’s failure to caption his mandamus action in the name of
the state on the relation of the person applying is a different matter. If a respondent alerts
a relator of his or her failure to properly caption a mandamus action and the relator does
not seek leave to amend his or her complaint to comply with R.C. 2731.04, the mandamus
action must be dismissed. Blankenship v. Blackwell, 103 Ohio St.3d 567, 2004-Ohio-
5596, 817 N.E.2d 382, ¶ 36, citing Litigaide, Inc. v. Lakewood Police Dept. Custodian of
Records, 75 Ohio St.3d 508, 664 N.E.2d 521 (1996). Here, the state has alerted Relator
of his failure to properly caption his mandamus action by way of its combined answer and
motion to dismiss, albeit relying on the incorrect Ohio Revised Code section. Relator has
not responded to the combined answer and motion nor has he sought leave to amend his
complaint to comply with R.C. 2731.04. Therefore, Relator’s omission provides sufficient
grounds to dismiss this action. Blankenship, supra.
{¶8} Putting the procedural deficiencies of Relator’s petition aside, the petition
also fails on its merits, for two reasons. First, Relator has been represented by appointed
counsel at all times in the trial court proceedings. Although a criminal defendant has the
right to counsel or the right to act pro se, a defendant does not have any right to “hybrid
representation.” State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227,
paragraph one of the syllabus; State v. Thompson, 33 Ohio St.3d 1, 6-7, 514 N.E.2d 407(1987). The right to counsel and the right to act pro se “are independent of each other
and may not be asserted simultaneously.” Martin at paragraph one of the syllabus.
Case No. 19 MA 0016
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{¶9} Accordingly, where “counsel represents a criminal defendant, a trial court
may not entertain a defendant’s pro se motion.” State v. Mongo, 8th Dist. Cuyahoga No.
100926, 2015-Ohio-1139, ¶ 13-15. Accord State v. Smith, 4th Dist. Highland No.
09CA29, 2010-Ohio-4507, ¶ 100, State v. Davis, 10th Dist. Hamilton No. 05AP–5039,
2006-Ohio-193, ¶ 12; State v. Greenleaf, 11th Dist. Portage No. 2005-P-0017, 2006-
Ohio-4317, ¶ 70.
{¶10} Second, a thorough review of the trial court docket demonstrates that his
appointed trial counsel has filed motions very similar to those which Relator has filed on
his own behalf. In each instance, the trial court has ruled on those motions, including a
few which Relator had filed on his behalf and were not duplicative of those filed by his
appointed trial counsel. Therefore, Relator’s original action for a writ of mandamus before
this Court is also moot. “Neither procedendo nor mandamus will compel the performance
of a duty that has already been performed.” Martin v. Judges of the Lucas Cty. Court of
Common Pleas, 50 Ohio St.3d 71, 72, 552 N.E.2d 906 (1990).
{¶11} For all of the foregoing reasons, Respondent’s motion to dismiss is granted
and this case is dismissed.
{¶12} Costs taxed against Relator. Final order. Clerk to serve copies of this
decision and judgment entry pursuant to the civil rules.
JUDGE CHERYL L. WAITE
JUDGE CAROL ANN ROBB
JUDGE DAVID A. D’APOLITO
Case No. 19 MA 0016
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Case No. 19 MA 0016