State ex rel. Turner v. Corrigan

[Cite as State ex rel. Turner v. Corrigan, 2013-Ohio-4714.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100102
STATE OF OHIO, EX REL.
DONALD TURNER
RELATOR
vs.
BRIAN J. CORRIGAN, JUDGE
RESPONDENT
JUDGMENT:
WRIT DENIED
Writ of Mandamus
Motion No. 467276
Order No. 468813
RELEASE DATE: October 22, 2013
FOR RELATOR
Donald Turner, pro se
Inmate No. 514-553
Lebanon Correctional Institution
P.O. Box 56
Lebanon, Ohio 45036
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Relator, Donald Turner, commenced this mandamus action against the
respondent, Judge Brian J. Corrigan, seeking to compel him to conduct a de novo
resentencing hearing in State v. Turner, Cuyahoga C.P. No. CR-453056-A, pursuant to
State v. Turner, 8th Dist. Cuyahoga No. 88958, 2007-Ohio-5732 (“Turner I”).
Respondent has moved for summary judgment based on a pleading defect and pursuant to
the doctrine of res judicata and mootness. Respondent submitted copies of relator’s
petition for writ of mandamus that was filed in the Ohio Supreme Court on November 5,
2012, respondent’s motion to dismiss that action, and the Ohio Supreme Court’s entry of
dismissal filed January 23, 2013. Turner has opposed the summary judgment motion.
For the reasons that follow, we grant respondent’s motion for summary judgment and
deny Turner’s petition for a writ of mandamus.
{¶2} Turner was convicted of robbery in 2006, and the trial court’s original
sentencing entry was journalized on October 20, 2006. Turner appealed and this court
affirmed his conviction but remanded the matter for a new sentencing hearing because the
trial court had not properly advised him of postrelease control. Turner I,
2007-Ohio-5732, ¶ 57.
{¶3} On remand, the trial court conducted further proceedings and issued an entry
that was journalized on May 30, 2008. Turner again appealed. State v. Turner, 8th Dist.
Cuyahoga No. 91695, 2008-Ohio-6648 (“Turner II”). During the pendency of the appeal
in Turner II, this court issued a limited remand order directing the trial court to execute a
sentencing entry that disposed of all of the counts in the indictment and included a
sentence and the means of conviction. The court issued a new sentencing entry on
November 11, 2012, which was made part of the appellate record in Turner II. In his
second assignment of error in Turner II, Turner alleged that the trial court had failed to
impose any statutorily mandated sentence. That assignment of error was overruled
because Turner had failed to include a copy of the sentencing transcript in the record, and
the trial court’s judgment was accordingly affirmed. A discretionary appeal of Turner II
was disallowed by the Ohio Supreme Court. State v. Turner, 121 Ohio St.3d 1476,
2009-Ohio-2045, 905 N.E.2d 655.
{¶4} On November 5, 2012, Turner filed a petition for a writ of mandamus in the
Ohio Supreme Court. State ex rel. Turner v. Stewart, 134 Ohio St.3d 1413,
2013-Ohio-158, 981 N.E.2d 881. In his third ground for mandamus relief, Turner sought
the same relief he is seeking in this action — an order compelling the trial court to enter a
judgment pursuant to Turner I. Respondent judge moved for dismissal of Turner’s
petition on multiple grounds, including that the third request for relief was moot because
Turner had already completed his sentence. The Ohio Supreme Court granted the motion
and dismissed Turner’s petition for a writ of mandamus. Id.{¶5} Respondent moves for summary judgment in this original action arguing that
Turner’s petition is defective for failure to comply with Loc.App.R. 45(B)(1)(a). Turner
maintains that his affidavit is in compliance with the rule.
{¶6} 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.
{¶7} 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, Turner 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). This is grounds for dismissing the
petition.
{¶8} Further, Turner had an adequate remedy at law through a direct appeal, and
he has already unsuccessfully sought to obtain the same relief through his petition for a
writ of mandamus that has been dismissed by the Ohio Supreme Court. Therefore, his
petition for a writ of mandamus must be denied. State ex rel. Voleck v. Powhatan Point,
127 Ohio St.3d 299, 2010-Ohio-5679, 939 N.E.2d 819, ¶ 7 (“Mandamus will not issue
when the relators have an adequate remedy in the ordinary course of law”); State ex rel.
Hondo v. McGinty, 8th Dist. Cuyahoga No. 94915, 2010-Ohio-2900, ¶ 4 (holding that the
appellate court must grant the motion for summary judgment and deny relief in an
original action where the relator had previously sought the same relief in a complaint that
has been dismissed by the Ohio Supreme Court).
{¶9} Respondent’s motion for summary judgment is granted, and the petition for
writ of mandamus is denied. Relator to pay costs. 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).
{¶10} Writ denied.
FRANK D. CELEBREZZE, JR., JUDGE
MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR