State ex rel. McCabe v. State

[Cite as State ex rel. McCabe v. State, 2018-Ohio-1138.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO, EX REL. : Hon. W. Scott Gwin, P.J.
DONALD E. MCCABE : Hon. William B. Hoffman, J.
: Hon. Earle E. Wise, J.
Relator :
:
-vs- : Case No. 18-CA-00003
:
STATE OF OHIO :
: OPINION
Respondent
CHARACTER OF PROCEEDING: Petition for Writ of Mandamus
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: March 26, 2018
APPEARANCES:
For Relator For Respondent
DONALD E. MCCABE, # 277.786
Marion Correctional Institution
Box 57
Marion, OH 43301
[Cite as State ex rel. McCabe v. State, 2018-Ohio-1138.]
Gwin, P.J.
{¶1} Relator, Donald McCabe, has filed a Petition for Writ of Mandamus
requesting Respondent be ordered to provide Relator with a scheduling order for an
appeal Relator filed in this Court.
{¶2} “To be entitled to a writ of mandamus, the [relator] must establish by clear
and convincing evidence a clear legal right to the requested relief and a clear legal duty
on the part of respondent to provide the relief. “ State ex rel. Cincinnati Enquirer v. Ohio
Dept. of Pub. Safety, 148 Ohio St.3d 433, 2016-Ohio-7987, 71 N.E.3d 258, ¶ 28.
{¶3} Relator specifically believes he is entitled to a “Scheduling Order” which
would include (1) the case number (2) the calendar assignment (3) the due date(s) for the
brief(s). Relator has not cited any authority for the proposition he has a clear legal right
to a “scheduling order.” Further, he has not cited any authority for the contention that the
Respondent, the State of Ohio, is required to provide a scheduling order.
{¶4} All initial due dates for briefs in the Fifth District Court of Appeals are
calculated according to Rule 18 and Rule 11.1(C) of the Ohio Rules of Appellate
Procedure and not by a scheduling order. The record in Relator’s appeal, Perry County
Case Number 17-CA-00010, indicates Relator was served with a copy of the Appellate
Rule 11 (B) notice of transmission of the record. This notice contained the case number.
Further, this notice triggers the due date for Relator’s appellate brief.
{¶5} Relator elected on his Docketing Statement to have his case assigned to
the Accelerated Calendar in Case Number 17-CA-00010, therefore, the case was placed
on the Accelerated Calendar. The State of Ohio, the respondent named in the Petition,
has no duty to advise an appellant of the calendar an appellant elects for his own case.
Perry County, Case No. 18-CA-00003 3
{¶6} Finally, Relator had an adequate remedy at law to obtain the case number
and calendar assignment from the clerk of courts.
{¶7} Because Relator has failed to demonstrate a clear legal duty on the part of
Respondent to provide a scheduling order and has failed to demonstrate a clear legal
right to a scheduling order, the petition for writ of mandamus is dismissed for failure to
state a claim upon which relief may be granted.
By Gwin, P.J.,
Hoffman, J., and
Wise, Earle, J., concur