Schmick v. State

[Cite as Schmick v. State, 2012-Ohio-4945.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98766
EUGENE SCHMICK
RELATOR
vs.
STATE OF OHIO
RESPONDENT
JUDGMENT:
COMPLAINT DISMISSED
Writ of Mandamus
Motion No. 458255
Order No. 459325
RELEASE DATE: October 23, 2012
FOR RELATOR
Eugene Schmick
Inmate No. 0083228
Cuyahoga County Jail
P.O. Box 5600
Cleveland, OH 44101
ATTORNEYS FOR RESPONDENT
Mike DeWine
Ohio Attorney General
Peter L. Jamison
Assistant Attorney General
Criminal Justice Section
150 E. Gay Street, 16th Floor
Columbus, OH 43215
COLLEEN CONWAY COONEY, J.:
{¶1} On August 8, 2012, the petitioner, Eugene Schmick, commenced this
mandamus action against the respondent, the state of Ohio, to compel the State through the
Ohio Department of Rehabilitation and Correction to give him proper jail-time credit
pursuant to State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440. On
September 5, 2012, the State filed a motion to dismiss. Schmick never filed a reply.
For the following reasons, this court grants the motion to dismiss.
{¶2} First, the petition is defective because it is improperly captioned. Schmick
styled this petition as “Eugene Schmick v. State of Ohio.” R.C. 2731.04 requires that an
application for a writ of mandamus “must be by petition, in the name of the state on the
relation of the person applying.” This failure to properly caption a mandamus action is
sufficient grounds for denying the writ and dismissing the petition. Maloney v. Court of
Common Pleas of Allen Cty., 173 Ohio St. 226, 181 N.E.2d 270 (1962). Moreover, the
failure to caption the case correctly creates uncertainty as to the identity of the respondent
and the corresponding duty to be enforced. This court has held that this deficiency also
warrants dismissal. Jordan v. Cuyahoga Cty. Court of Common Pleas, 8th Dist No.
96013, 2011-Ohio-1813. The court further notes that Schmick did not include the
addresses of the parties in the caption as required by Civ.R. 10(A).
{¶3} Schmick also did not comply with R.C. 2969.25(C), which requires that an
inmate file a certified statement from his prison cashier setting forth the balance in his
private account for each of the preceding six months. This also is sufficient reason to
deny the mandamus, deny indigency status, and assess costs against the petitioner. State
ex rel. Hunter v. Cuyahoga Cty. Court of Common Pleas, 88 Ohio St.3d 176,
2000-Ohio-285, 724 N.E.2d 420; Hazel v. Knab, 120 Ohio St.2d 22, 2011-Ohio-4608, 955
N.E.2d 378.
{¶4} Additionally, he failed to support his complaint with an affidavit “specifying
the details of the claim” as required by Loc.App.R. 45(B)(1)(a). State ex rel. Leon v.
Cuyahoga Cty. Court of Common Pleas, 123 Ohio St.3d 124, 2009-Ohio-4688, 914
N.E.2d 402; and State ex rel. Wilson v. Calabrese, 8th Dist. No. 70077, 1996 Ohio App.
LEXIS 6213 (Jan. 18, 1996).
{¶5} Finally, Schmick’s claim for mandamus relief is not well founded. In the
underlying case, State v. Schmick, Cuyahoga C.P. No. CR-532200, Schmick pleaded guilty
to 17 counts of pandering sexually oriented matter involving a minor, 13 counts of minor
in nude material or performance, 14 more counts of pandering sexually oriented matter
involving a minor, and one count of possessing criminal tools. The judge sentenced him
to eight years on each of the first 17 counts of pandering and on each of the 13 counts of
minor in nude material; all of these counts are to be served concurrently. The judge then
sentenced Schmick to eight years on the 14 other counts of pandering, concurrent to each
other, but consecutive to the other counts of pandering and minor in nude material. The
judge imposed a six-month sentence for possessing criminal tools concurrent with all the
other sentences. Subsequently, the judge granted him 214 days of jail-time credit.
{¶6} Schmick argues that pursuant to Fugate, 117 Ohio St.3d 261,
2008-Ohio-856, 883 N.E.2d 440, he is entitled to have all of the jail-time credit applied to
each of his sentences. However, Fugate holds as follows: “When a defendant is
sentenced to concurrent prison terms for multiple charges, jail-time credit pursuant to R.C.
2967.191 must be applied toward each concurrent prison term.” Id. at syllabus.
However, the presence of consecutive terms renders Fugate distinguishable and
inapplicable. Thus, Schmick has not cited controlling authority to establish the clear,
legal duty to have the state of Ohio apply his jail-time credit to each of his sentences.
{¶7} Accordingly, this court grants the respondent’s motion to dismiss and
dismisses the application for a writ of mandamus. Petitioner to pay costs. This court
directs the clerk of court to serve all parties notice of this judgment and its date of entry
upon the journal as required by Civ.R. 58(B).
Complaint dismissed.
__________________________________________
COLLEEN CONWAY COONEY, JUDGE
PATRICIA ANN BLACKMON, A.J., and
KENNETH A. ROCCO, J., CONCUR