State v. Collica

[Cite as State v. Collica, 2023-Ohio-2033.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2022-P-0089
Respondent,
Original Action for Writ of Mandamus
- vs -
JOSEPH J. COLLICA,
Relator.
PER CURIAM
OPINION
Decided: June 20, 2023
Judgment: Petition dismissed
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Respondent).
Joseph J. Collica, pro se, PID# A753-774, Noble Correctional Institution, 15708
McConelsville Road, Caldwell, OH 43724 (Relator).
PER CURIAM.
{¶1} Relator, Joseph Collica, filed a “Motion for Writ of Mandamus” on December
30, 2022. This Court issued an alternative writ directing respondent, the State of Ohio, to
move, plead or otherwise respond to the filing.
{¶2} On April 25, 2023, respondent, through the Portage County Prosecutor’s
Office, filed a Motion to Dismiss. Respondent argues for dismissal on several procedural
grounds: first, because relator entitled his petition as a motion; second, because relator
did not include an affidavit with his petition as required by R.C. 2731.04 and by R.C.
2969.25; third, because relator filed in his individual capacity and not in the name of the
state; fourth, because relator failed to name as a respondent the person he would have
us compel. Finally, respondent moves for dismissal on substantive grounds, because
realtor seeks mandamus to compel “the trial court produce the entire [transcript of]
proceedings at state expense” and realtor does not have a clear legal right to the relief
requested.
{¶3} First, relator’s failure to caption this case in the name of the State and his
failure to verify his petition by an affidavit pursuant to R.C. 2731.04 are not cause for
dismissal as is suggested by respondent. The Ohio Supreme Court has held that failing
to file a petition “in the name of the state on the relation of the person applying” is not a
jurisdictional defect requiring dismissal. Salemi v. Cleveland Metroparks, 145 Ohio St.3d
408, 2016-Ohio-1192, 49 N.E.3d 1296, ¶ 15. (Collecting cases). Further, the failure to
verify the petition by affidavit at the time of filing as provided in R.C. 2731.04 has been
“displaced by Civ.R. 11.” State ex rel. Madison v. Cotner, 66 Ohio St.2d 448, 450, 423
N.E.2d 72 (1981). Civ.R. 11 provides in part: “Except as otherwise specifically provided
by these rules, pleadings need not be verified or accompanied by affidavit.” This portion
of Respondent’s Motion to Dismiss is not well taken and is not part of our basis for
dismissal.
{¶4} However, respondent does correctly argue that relator failed to comply with
R.C. 2969.25(C), which provides:
(C) If an inmate who files a civil action or appeal against a
government entity or employee seeks a waiver of the prepayment of
the full filing fees assessed by the court in which the action or appeal
is filed, the inmate shall file with the complaint or notice of appeal an
affidavit that the inmate is seeking a waiver of the prepayment of the
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court's full filing fees and an affidavit of indigency. The affidavit of
waiver and the affidavit of indigency shall contain all of the following:
(1) A statement that sets forth the balance in the inmate
account of the inmate for each of the preceding six months,
as certified by the institutional cashier;
(2) A statement that sets forth all other cash and things of
value owned by the inmate at that time.
{¶5} The requirements of R.C. 2969.25(C) are mandatory and failure to comply
with them mandates dismissal of an inmate’s mandamus petition. State ex rel. Manns v.
Henson, 119 Ohio St.3d 348, 2008-Ohio-4478, 894 N.E.2d 47, ¶ 4; State ex rel. Alford v.
Winters, 80 Ohio St.3d 285, 286, 685 N.E.2d 1242 (1997). Neither “substantial
compliance” nor a belated affidavit can remedy such a failure. Id.{¶6} Here, relator filed an Affidavit of Indigency which stated he receives a
monthly stipend of $12.00 “for satisfactory performance of his institutional job.” However,
relator failed to provide a statement setting forth the balance of his inmate account for
each of the preceding six months, as certified by the institutional cashier. Further, relator
failed to set forth all other cash and things of value he owns. This failure is not curable
and substantial compliance will not suffice.
{¶7} In addition, relator’s “Motion for Writ of Mandamus” is substantively without
merit. A relator seeking a writ of mandamus must prove entitlement to the writ by clear
and convincing evidence. State ex rel. Ward v. Reed, 141 Ohio St.3d 50, 2014- Ohio-
4512, 21 N.E.3d 303, ¶ 10. A court of appeals may sua sponte dismiss an application for
a writ of mandamus “‘only if the complaint is frivolous or the claimant obviously cannot
prevail on the facts alleged in the complaint.’” State ex rel. Mayer v. Henson, 97 Ohio
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St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223, ¶ 11, quoting McAuley v. Smith, 82 Ohio
St.3d 393, 395, 696 n.E.2d 572 (1998).
{¶8} “Mandamus is a writ, issued in the name of the state to an inferior tribunal,
a corporation, board, or person, commanding the performance of an act which the law
specially enjoins as a duty resulting from an office, trust, or station.” R.C. 2731.01. “To
be entitled to a writ of mandamus, the relator must be able to prove that: (1) he has a
clear legal right to have a specific act performed by a public official; (2) the public official
has a clear legal duty to perform that act; and (3) there is no legal remedy that could be
pursued to adequately resolve the matter.” State ex rel. Vance v. Kontos, 11th Dist.
Trumbull No. 2014-T-0078, 2014-Ohio-5080, ¶ 9.
{¶9} Here, relator’s “Motion for Writ of Mandamus” seeks an order to compel the
trial court to produce the records of his entire criminal proceedings at state expense.
However, the “right of an indigent accused to be furnished a copy of the transcript of the
evidence and the records relating to his arrest and conviction at the expense of the state
is dependent upon his having either a present appeal as of right from his conviction or an
actual appeal pending pursuant to the allowance of a motion for leave to appeal.” State
ex rel. Braxton v. Parrino, 176 Ohio St. 318, 318, 199 N.E.2d 571 (1964); State v. Nagy,
11th Dist. Portage No. 2018-P-0098, 2019-Ohio-3058, ¶ 28.
{¶10} This Court has previously dismissed appellant’s direct appeal as being
untimely filed and denied his motion for a delayed appeal. State v. Collica, 11th Dist.
Portage No. 2019-P-0038, 2019-Ohio-1956; State v. Collica, 11th Dist. Portage No.
2022-P-0026, 2022-Ohio-2000.
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{¶11} Relator has no present appeal as of right or motion for leave to appeal
pending before this court. Thus, he has no clear legal right to compel the trial court to
produce records or transcripts in his criminal case at State expense.
{¶12} Accordingly, respondent’s motion to dismiss is granted. Relator’s “Motion
for Writ of Mandamus” is dismissed.
JOHN J. EKLUND, P.J., MARY JANE TRAPP, J., EUGENE A. LUCCI, J., concur.
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