State ex rel. Townsend v. Gaul , 2024 Ohio 1128 ( 2024 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Townsend v. Gaul, Slip Opinion No. 2024-Ohio-1128.]
NOTICE
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2024-OHIO-1128[THE STATE EX REL .] TOWNSEND, APPELLANT , v. GAUL, JUDGE, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Townsend v. Gaul, Slip Opinion No.
2024-Ohio-1128.]
Mandamus—Inmate failed to comply with requirements of R.C. 2969.25(C)—Court
of appeals’ dismissal of complaint affirmed.
(No. 2023-0862—Submitted February 6, 2024—Decided March 28, 2024.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 112510,
2023-Ohio-1485.
__________________
Per Curiam.
{¶ 1} Appellant, Albert Townsend Sr., appeals the Eighth District Court of
Appeals’ judgment denying his complaint for a writ of mandamus. Because
Townsend’s complaint was defective for failure to comply with R.C. 2969.25(C),
we affirm.
SUPREME COURT OF OHIO
FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} Townsend was convicted on multiple counts of rape and kidnapping,
sentenced to 56 years to life in prison, and classified as a sexually violent predator.
On direct appeal, the court of appeals held that the trial court erred in sentencing
Townsend to sexually-violent-predator specifications with respect to two of his
victims and remanded the case for resentencing on eight of the counts on which he
had been convicted. See State v. Townsend, 8th Dist. Cuyahoga No. 107186, 2019-
Ohio-1134, ¶ 66-67 (“Townsend I”). At resentencing, the trial court again
sentenced Townsend to 56 years to life in prison. See State v. Townsend, 8th Dist.
Cuyahoga No. 110525, 2022-Ohio-692, ¶ 10 (“Townsend II”). Townsend appealed
again, and the court of appeals affirmed the sentence but remanded to the trial court
“for the limited purpose of reflecting its findings supporting the imposition of
consecutive sentences in its journal entry.” Id. at ¶ 22. Appellee, Cuyahoga County
Common Pleas Court Judge Daniel Gaul, entered a nunc pro tunc sentencing entry
to comply with the court of appeals’ remand instructions.
{¶ 3} In March 2023, Townsend filed a complaint for a writ of mandamus
in the court of appeals. Townsend alleged, among other things, that he was entitled
to a resentencing hearing. He also complained that he should have received the
benefit of a plea agreement allegedly offered by the state, in which, according to
Townsend, he would have received concurrent ten-year sentences. Townsend’s
prayer for relief asked the court of appeals to (1) “reinvestigate” claims of facts
showing that he was not properly resentenced, (2) compel the trial court to comply
with the court of appeals’ remand order in Townsend II or, in the alternative, modify
his sentence “to time served or 10 years-concurrent,” and (3) vacate the indictments
for lack of evidence.
{¶ 4} The court of appeals granted Judge Gaul’s motion for summary
judgment and denied the writ. 2023-Ohio-1485, ¶ 24. The court observed that
Townsend did not comply with R.C. 2969.25(C), which requires an inmate who
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January Term, 2024
requests a waiver of the court’s filing fee to submit with the complaint an affidavit
of indigency that contains a certified statement of the balance in the inmate’s
institutional account for each of the preceding six months. 2023-Ohio-1485 at
¶ 12. In addition, the court of appeals found one of Townsend’s mandamus claims
moot because the trial court had issued a judgment entry complying with the
remand order issued in Townend II. 2023-Ohio-1485 at ¶ 15. The court of appeals
found that many of Townsend’s remaining claims were “not proper matters for
mandamus.” Id. at ¶ 17. It also noted that Townsend had already raised or could
have raised many of his arguments in his previous appeals. Id. at ¶ 21, citing
Townsend I, Townsend II, State v. Townsend, 8th Dist. Cuyahoga No. 107186,
2021-Ohio-696 (denying application for reopening), and State v. Townsend, 8th
Dist. Cuyahoga No. 110525, 2022-Ohio-4398 (denying application for reopening).
{¶ 5} Townsend appealed to this court as of right. Judge Gaul has filed a
motion to strike 81 pages of exhibits attached to Townsend’s merit brief on the
ground that those exhibits were not part of the record in the court of appeals.
Townsend opposes the motion to strike.
ANALYSIS
{¶ 6} This court reviews de novo a court of appeals’ grant of summary
judgment in a mandamus action. State ex rel. Phelps v. McClelland, 159 Ohio St.3d
184, 2020-Ohio-831, 149 N.E.3d 500, ¶ 11. To obtain a writ of mandamus,
Townsend must establish a clear legal right to the requested relief, a clear legal duty
on the part of Judge Gaul to provide it, and the lack of an adequate remedy in the
ordinary course of the law. Id.{¶ 7} Townsend is incarcerated at the Grafton Correctional Institution.
When an inmate seeks a waiver of a court of appeals’ filing fees for commencing a
civil action against a governmental entity or employee, as Townsend did in this
case, R.C. 2969.25(C) requires the inmate to file with his complaint an affidavit
stating that he is seeking a waiver of the prepayment of the court’s full filing fees
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SUPREME COURT OF OHIO
and an affidavit of indigency. The affidavit must contain (1) a statement certified
by the institutional cashier that sets forth the balance of the inmate’s institutional
account for each of the preceding six months and (2) a statement that sets forth all
other cash and things of value owned by the inmate. Id. Noncompliance with these
requirements is a proper basis for dismissal of the action. State ex rel. Ellis v.
Wainwright, 157 Ohio St.3d 279, 2019-Ohio-2853, 135 N.E.3d 761, ¶ 6.
{¶ 8} With his mandamus complaint in the court of appeals, Townsend
submitted what appears to be a statement of his inmate account. The statement,
however, is not certified by the institutional cashier and does not cover the six-
month period preceding the filing of Townsend’s complaint. Townsend filed his
complaint on March 14, 2023, but the statement he filed covers the period of May
1, 2022, through November 9, 2022. Because the statement does not strictly
comply with R.C. 2969.25(C), the court of appeals correctly found this deficiency
to be fatal to Townsend’s mandamus complaint. See Ellis at ¶ 6-7.
{¶ 9} In this appeal, Townsend does not claim to have complied with R.C.
2969.25(C). Rather, Townsend’s merit brief raises arguments relating only to the
underlying merits of his mandamus complaint. But without providing any
argument for reversal of the court of appeals’ judgment on R.C. 2969.25(C)
grounds, Townsend fails to establish an error that would entitle him to reversal of
the judgment below. See State ex rel. Pointer v. Adult Parole Auth., 170 Ohio St.3d
96, 2022-Ohio-3261, 209 N.E.3d 611, ¶ 9. We therefore affirm the court of
appeals’ judgment without reaching any of the other issues Townsend raises on
appeal. See, e.g., State ex rel. Sands v. Lake Cty. Common Pleas Court, 172 Ohio
St.3d 146, 2023-Ohio-2599, 222 N.E.3d 594, ¶ 11.
CONCLUSION
{¶ 10} Because Townsend did not comply with R.C. 2969.25(C), we affirm
the judgment of the Eighth District Court of Appeals. We deny as moot Judge
Gaul’s motion to strike.
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January Term, 2024
Judgment affirmed.
KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, BRUNNER,
and DETERS, JJ., concur.
_________________
Albert Townsend Sr., pro se.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and James
E. Moss, Assistant Prosecuting Attorney, for appellee.
_________________
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