State ex rel. Dines v. Villanueva

[Cite as State ex rel. Dines v. Villanueva, 2013-Ohio-5137.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100381
STATE OF OHIO EX REL.
NOAH DINES
RELATOR
vs.
JUDGE JOSE VILLANUEVA
RESPONDENT
JUDGMENT:
WRIT DENIED
Writ of Mandamus
Motion No. 468939
Order No. 469650
RELEASE DATE: November 15, 2013
FOR RELATOR
Noah Dines, pro se
Inmate No. 521522
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43301
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: James E. Moss
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Noah Dines, relator, has petitioned this court to issue a writ of mandamus to
compel the trial court to rule on motions he filed in State v. Dines, Cuyahoga C.P. No.
CR-479797-A. Specifically, relator seeks to compel rulings on the following motions: a
motion to withdraw guilty plea filed on February 4, 2013; a “motion for issuance of a
final appealable order and vacation of sentence” filed on February 25, 2013; and a motion
for “establishment of date certain for oral hearing, appointment of counsel and issuance
of a final appealable order” filed on March 18, 2013. Respondent has filed a motion for
summary judgment based on pleading deficiencies and mootness. For the reasons that
follow, we grant respondent’s motion for summary judgment and deny relator’s complaint
for writ of mandamus.
{¶2} Loc.App.R. 45(B)(1)(a) provides that a complaint for an extraordinary writ
must be supported by a sworn affidavit that specifies the details of relator’s claim. A
simple statement that verifies that relator has reviewed the complaint and that the contents
are true and accurate does not satisfy the mandatory requirement under Loc.App.R.
45(B)(1)(a). State ex rel. Jones v. McGinty, 8th Dist. Cuyahoga No. 92602,
2009-Ohio-1258; State ex rel. Mayes v. Ambrose, 8th Dist. Cuyahoga No. 91980,
2009-Ohio-25; James v. Callahan, 8th Dist. Cuyahoga No. 89654, 2007-Ohio-2237.
{¶3} The Supreme Court of Ohio upheld this court’s ruling that merely stating in
an affidavit that the complaint was true and correct was insufficient to comply with the
local rule. State ex rel. Leon v. Cuyahoga Cty. Court of Common Pleas, 123 Ohio St.3d
124, 2009-Ohio-4688, 914 N.E.2d 402. On that basis, relator has failed to support his
complaint with an affidavit “specifying the details of the claim” as required by
Loc.App.R. 45(B)(1)(a). Id.; State ex rel. Wilson v. Calabrese, 8th Dist. Cuyahoga No.
70077, 1996 Ohio App. LEXIS 6213 (Jan. 18, 1996).
{¶4} Relator has further failed to comply with R.C. 2969.25 by failing to file an
affidavit detailing his prior civil filings. The Ohio Supreme Court has held, “The
requirements of R.C. 2969.25 are mandatory, and failure to comply with them subjects an
inmate’s action to dismissal.” State ex rel. White v. Bechtel, 99 Ohio St.3d 11,
2003-Ohio-2262, 788 N.E.2d 634, ¶ 5. Noncompliance with R.C. 2969.25 warrants
dismissal. State ex rel. Graham v. Niemeyer, 106 Ohio St.3d 466, 466-467,
2005-Ohio-5522, 835 N.E.2d 1250.
{¶5} R.C. 2969.25(C) requires an inmate who is seeking waiver of prepayment of
the court’s full filing fee to file a certified statement from his prison cashier setting forth
the balance in his private account for each of the preceding six months. Relator’s failure
to comply with R.C. 2969.25(C) warrants dismissal of his complaint. State ex rel.
Alford v. Winters, 80 Ohio St.3d 285, 685 N.E.2d 1242 (1997).
{¶6} The complaint is also moot. Respondent’s motion for summary judgment
includes an attached copy of the trial court’s entry that was journalized on October 2,
2013, which demonstrates that a ruling has been rendered with regard to relator’s
motions, which were granted in part. The trial court has scheduled the matter for a
limited resentencing hearing. “[R]elief is unwarranted because mandamus and
procedendo will not compel the performance of a duty that has already been performed.”
State ex rel. Hopson v. Cuyahoga Cty. Court of Common Pleas, 135 Ohio St.3d 456,
2013-Ohio-1911, 989 N.E.2d 49, ¶ 4.
{¶7} Accordingly, we grant respondent’s motion for summary judgment and deny
relator’s complaint for writ of mandamus. Costs are assessed against relator, but
waived. The court directs the clerk of court to serve all parties with notice of this
judgment and its date of entry upon the journal as required by Civ.R. 58(B).
{¶8} Writ denied.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
MARY EILEEN KILBANE, J., and
EILEEN T. GALLAGHER, J., CONCUR