State ex rel. Smith v. Cuyahoga Cty. Sheriff , 2016 Ohio 1469 ( 2016 )

[Cite as State ex rel. Smith v. Cuyahoga Cty. Sheriff, 2016-Ohio-1469.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103534
STATE OF OHIO, EX REL.
DARRYL W. SMITH
RELATOR
vs.
CUYAHOGA COUNTY SHERIFF, ET AL.
RESPONDENTS
JUDGMENT:
PETITION DENIED
Writs of Habeas Corpus and Mandamus
Motion No. 490670
Order No. 493972
RELEASE DATE: April 6, 2016
FOR RELATOR
Darryl W. Smith, pro se
Inmate No. 0078967
Cuyahoga County Jail
P.O. Box 5600
Cleveland, Ohio 44101
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
Barbara A. Langhenry
City of Cleveland - Director of Law
By: Connor P. Nathanson
Assistant Director of Law
601 Lakeside Avenue - Room 106
Cleveland, Ohio 44114
MARY EILEEN KILBANE, J.:
{¶1} Darryl W. Smith has filed a petition for writs of habeas corpus and mandamus.
Respondents Cuyahoga County Sheriff and Judge Marilyn Cassidy have moved for summary
judgment. Smith has moved to strike the motions for summary judgment. The motions for
summary judgment are granted, and the petition is denied for the reasons that follow.
{¶2} Smith’s petition maintains that he is being illegally imprisoned in the Cuyahoga
County jail under an “illegal death sentence” or “other additional unlawfully imposed convictions
and sentences” without trials or due process and in violation of his constitutional rights.
Smith’s petition failed to identify the case(s) that are causing his alleged unlawful detention and
did not include a copy of his commitment as required by R.C. 2725.04(D). The petition also did
not comply with the requirements of R.C. 2969.25(A).
{¶3} R.C. 2725.04(D) provides:
Application for the writ of habeas corpus shall be by petition, signed and
verified either by the party for whose relief it is intended, or by some person for
him, and shall specify:
(A)That the person in whose behalf the application is made is imprisoned, or
restrained of his liberty;
(B)The officer, or name of the person by whom the prisoner is so confined or
restrained; or, if both are unknown or uncertain, such officer or person may be
described by an assumed appellation and the person who is served with the writ is
deemed the person intended;
(C)The place where the prisoner is so imprisoned or restrained, if known;
(D)A copy of the commitment or cause of detention of such person shall be
exhibited, if it can be procured without impairing the efficiency of the remedy; or,
if the imprisonment or detention is without legal authority, such fact must appear.
{¶4} R.C. 2969.25(A) and (C) require the following:
(A) At the time that an inmate commences a civil action or appeal against a
government entity or employee, the inmate shall file with the court an affidavit
that contains a description of each civil action or appeal of a civil action that the
inmate has filed in the previous five years in any state or federal court. The
affidavit shall include all of the following for each of those civil actions or
appeals:
(1)A brief description of the nature of the civil action or appeal;
(2)The case name, case number, and the court in which the civil action or
appeal was brought;
(3)The name of each party to the civil action or appeal;
(4)The outcome of the civil action or appeal, including whether the court
dismissed the civil action or appeal as frivolous or malicious under state or federal
law or rule of court, whether the court made an award against the inmate or the
inmate’s counsel of record for frivolous conduct under section 2323.51 of the
Revised Code, another statute, or a rule of court, and, if the court so dismissed the
action or appeal or made an award of that nature, the date of the final order
affirming the dismissal or award.
***
(C)If an inmate who files a civil action or appeal against a government entity or
employee seeks a waiver of the prepayment of the full filing fees assessed by the
court in which the action or appeal is filed, the inmate shall file with the
complaint or notice of appeal an affidavit that the inmate is seeking a waiver of
the prepayment of the court’s full filing fees and an affidavit of indigency. The
affidavit of waiver and the affidavit of indigency shall contain all of the
following:
(1)A statement that sets forth the balance in the inmate account of the inmate
for each of the preceding six months, as certified by the institutional cashier;
(2)A statement that sets forth all other cash and things of value owned by the
inmate at that time.
(Emphasis added.)
{¶5} Respondent Sheriff Pinkney argues that numerous defects warrant dismissal of the
petition and cites legal authority in support. Additionally, both respondents contend that
summary judgment is warranted because Smith is not entitled to habeas corpus or mandamus
relief on the claims set forth in his petition.
{¶6} Although Smith attempted to cure the pleading defects through a motion to
supplement his petition, the Ohio Supreme Court has held that the statute does not permit
delayed statements pursuant to R.C. 2969.25(C). The requirement is mandatory and failure to
comply with it subjects the petition to dismissal. State ex rel. Jackson v. Calabrese, 143 Ohio
St.3d 409, 2015-Ohio-2918, 38 N.E.2d 880, ¶ 5. The petition, therefore, is subject to dismissal
for this reason.
{¶7} Smith’s petition did not include the commitment papers, the affidavit required by
R.C. 2969.25(A), nor the cashier’s statement required by R.C. 2969.25(C). The petition is not
captioned in the name of the state, which is required by R.C. 2731.04 for mandamus actions.
Smith did not comply with Civ.R. 10 that requires the petition to include the addresses of the
parties.
{¶8} In addition to the numerous pleading defects, Smith has failed to establish the
criteria necessary for issuing either a writ of habeas corpus or mandamus.
{¶9} Smith’s motion to supplement his petition identifies Cleveland Municipal Court
Case No. 2015 CRB 012064, however, there are no docket entries attached to his affidavit that
was filed with this court. Respondent Judge Cassidy, however, has submitted a copy of the
docket that reflects that Smith pled no contest, consented to a finding of guilt, and was convicted
of aggravated menacing. Smith was sentenced to five years active probation, and a sentence of
152 days of incarceration at the Cleveland House of Correction was ordered into execution in
July 2015. He received 18 days of credit for days served. Smith did not appeal that sentence.
{¶10} Smith filed some post-judgment motions in the municipal court action. His
motion to vacate his plea was denied. He did not appeal that judgment. His motion to strike
the victim’s statement was denied. He did not appeal that judgment. He was held in contempt
and ordered to serve 30 days in the Cleveland House of Correction. He did not appeal that
judgment. In August 2015, Smith escaped from his incarceration. A capias was issued, and
upon his arrest a hearing was held where the court ordered Smith to serve 210 days in the
Cleveland House of Correction. He did not appeal that judgment. The court found Smith to
be in violation of his probation and terminated it. The court imposed an 180-day sentence for
aggravated menacing to be served consecutively to his 30-day sentence for contempt. Smith did
not appeal that order.
{¶11} In his petition, Smith maintains that his plea was invalid and that his convictions
were based on perjured testimony from the victims and false charges. He asserts he was found
in contempt and sentenced without a hearing. Smith further complains that he suffered assaults at
the hands of bail bondsmen hired by one of the victims to injure him and to stop him from
revealing his knowledge of her criminal activity. He contends that he is being held under a false
name but there is no evidence that would support this contention, which the sheriff has disputed.
Smith’s claims that he was not represented in the municipal court proceedings is contradicted
by the docket that reflects he was represented by a public defender. None of these allegations
are grounds for issuance of a writ of habeas corpus or mandamus. Smith has or had an adequate
remedy at law to raise these issues either through a direct appeal or by filing claims against the
parties in a civil action. Petitioner’s remedy to challenge the guilty plea, conviction, and
sentence in his misdemeanor case is through a direct appeal, not by habeas corpus. Perry v.
Maxwell, 175 Ohio St. 369, 195 N.E.2d 103 (1963). Mandamus is also precluded where an
appeal provides an adequate remedy at law. State ex rel. Hamilton v. Brunner, 105 Ohio St.3d
304, 2005-Ohio-1735, 825 N.E.2d 607; State ex rel. Dix v. McAllister, 81 Ohio St.3d 107, 108,
689 N.E.2d 561 (1998).
{¶12} Respondents’ motions for summary judgment are granted. Smith’s motion to
strike is denied. The petition for writ of habeas corpus and mandamus is denied. Petitioner to
pay costs. The court further directs the clerk of the Eighth District Court of Appeals to serve
notice of this judgment upon all parties as required by Civ.R. 58(B).
{¶13} Petition denied.
MARY EILEEN KILBANE, JUDGE
EILEEN A. GALLAGHER, P.J., and
SEAN C. GALLAGHER, J., CONCUR