State v. Brooks ( 2011 )

[Cite as State v. Brooks, 2011-Ohio-6483.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97198
STATE OF OHIO
RESPONDENT
vs.
ULIOUS BROOKS
RELATOR
JUDGMENT:
WRIT DENIED
Writ of Mandamus
Motion No. 447909
Order No. 450167
RELEASE DATE: December 13, 2011
FOR RELATOR
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Ulious Brooks, pro se
Inmate # 453-172
Southern Ohio Correctional Facility
P. O. Box 45699
Lucasville, Ohio 45699
ATTORNEYS FOR RESPONDENTS
William D. Mason
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶ 1} On August 24, 2011, the relator, Ulious Brooks, commenced this
mandamus action to compel a ruling on a motion to correct improper sentence which he
filed on January 21, 2011, in the underlying case, State of Ohio v. Ulious Brooks,
Cuyahoga County Common Pleas Court Case No. CR-435228. On September 20,
2011, the Cuyahoga County Prosecutor on behalf of the respondent moved for summary
judgment. Brooks never filed a brief in opposition to this motion. For the following
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reasons, this court grants the motion for summary judgment and denies the application for
a writ of mandamus.
{¶ 2} First, the petition is defective because it is improperly captioned. Brooks
styled this petition as “State of Ohio v. Ulious Brooks.” R.C. 2731.04 requires that an
application for a writ of mandamus “must be by petition, in the name of the state on the
relation of the person applying.” This failure to properly caption a mandamus action is
sufficient grounds for denying the writ and dismissing the petition. Maloney v. Court of
Common Pleas of Allen Cty. (1962), 173 Ohio St. 226, 181 N.E.2d 270. Moreover, the
failure to caption the case correctly, i.e., not naming the respondent on whom the duty lies
as compared to the defendant in the underlying case, creates uncertainty as to the identity
of the respondent. This court has held that this deficiency alone also warrants dismissal.
State ex rel. Larry Calloway v. Court of Common Pleas of Cuyahoga Cty. (Feb. 27,
1997), Cuyahoga App. No. 71699; State ex rel. Samuels v. Mun. Court (Nov. 22, 1994),
Cuyahoga App. No. 67762; and State ex rel. White v. Villanueva (Oct. 6, 1993),
Cuyahoga App. No. 66009.
{¶ 3} Moreover, attached to the motion for summary judgment is a certified copy
of a September 19, 2011 journal entry in which Judge Shirley Strickland Saffold ruled in
the underlying case: “Defendant’s motions to correct improper sentence filed January 21,
2011 and January 31, 2011 are denied.” This journal entry established that Brooks has
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obtained his requested relief, a ruling on the subject motion. Therefore, this matter is
moot.
{¶ 4} The relator has also failed to comply with R.C. 2969.25, which requires an
affidavit that describes each civil action or appeal filed by the relator within the previous
five years in any state or federal court. The relator’s failure to comply with R.C.
2969.25 warrants dismissal of the complaint for a writ of mandamus. State ex rel.
Zanders v. Ohio Parole Bd., 82 Ohio St. 3d 421, 1998-Ohio-218, 696 N.E.2d 594 and
State ex rel. Alford v. Winters, 80 Ohio St. 3d 285, 1997-Ohio-117, 685 N.E.2d 1242. A
review of this court’s records indicates that he has filed at least two other actions in the
past five years. Relator also did not comply with R.C. 2969.25(C) which requires that
an inmate file a certified statement from his prison cashier setting forth the balance in his
private account for each of the preceding six months. This also is sufficient reason to
deny the mandamus, deny indigency status and assess costs against the relator. State ex
rel. Pamer v. Collier, 108 Ohio St. 3d 492, 2006-Ohio-1507, 844 N.E.2d 842; State ex rel.
Hunter v. Cuyahoga Cty. Court of Common Pleas, 88 Ohio St. 3d 176, 2000-Ohio-285,
724 N.E.2d 420; and Hazel v. Knab, 2011-Ohio-4608.
{¶ 5} Additionally, the relator failed to support his complaint with an affidavit
“specifying the details of the claim” as required by Local Rule 45(B)(1)(a). State ex rel.
Leon v. Cuyahoga Cty. Court of Common Pleas, 123 Ohio St. 3d 124, 2009-Ohio-4688,
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914 N.E.2d 402; State ex rel. Wilson v. Calabrese (Jan. 18, 1996), Cuyahoga App. No.
70077; and State ex rel. Smith v. McMonagle (July 17, 1996), Cuyahoga App. No. 70899.
{¶ 6} Accordingly, the court grants the respondent’s motion for summary
judgment and denies the writ. Relator to pay costs. This court directs the Clerk of the
Cuyahoga County Court of Appeals to serve upon the parties notice of this judgment and
its date of entry upon the journal. Civ.R. 58(B).
Writ denied.
EILEEN A. GALLAGHER, JUDGE
PATRICIA A. BLACKMON, P.J., and
SEAN C. GALLAGHER, J., CONCUR