Opinion
111437
06-08-2022
TIMOTHY SMITH, EX REL. Relator, v. STATE OF OHIO Respondent.
Timothy A. Smith, pro se. Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for respondent.
Writ of Procedendo Motion No. 554709 Order No. 555490
Timothy A. Smith, pro se.
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for respondent.
JOURNAL ENTRY AND OPINION
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE.
{¶ 1} The relator, Timothy Smith, has filed a complaint for a writ of procedendo. Smith seeks an order from this court that compels the Cuyahoga County Court of Common Pleas to vacate the life sentence imposed in State v. Smith, Cuyahoga C.P. No. CR-09-531878-A and resentence him to a term of incarceration of 18 years. The respondents have filed a motion for summary judgment that is granted for the following reasons.
The state of Ohio is named as the respondent in the caption of the complaint for procedendo. However, Administrative Judge Brendan J. Sheehan and Judge Michael P. Shaughnessy are named as the respondents in the body of the complaint for procedendo.
I. Complaint for Procedendo is Procedurally Defective
A. Failure to Comply with Civ.R. 10(A)
{¶ 2} Civ.R. 10(A) states that the caption of a complaint must include "the names and addresses of all the parties * * *." Smith has not included the actual parties or the addresses of any parties in the caption of his complaint. It is well settled that the failure to properly caption an original action is sufficient grounds for denying the writ. State ex rel. Sherrills v. State, 91 Ohio St.3d 133, 742 N.E.2d 651 (2001); State v. Elder, 11th Dist. Lake No. 2013-L-114, 2014-Ohio-871; Scott v. Sargeant, 6th Dist. Sandusky No. S-09-008, 2009-Ohio-1745. The failure to comply with Civ.R. 10(A) prevents this court from granting the request for a writ of procedendo.
B. Failure to Comply with R.C. 2969.25(A) and (C)
{¶ 3} A review of Smith's complaint for procedendo fails to reveal compliance with R.C. 2969.25. R.C. 2969.25(A) requires Smith to file an affidavit listing each civil action or appeal of a civil action he has filed in the previous five years in any state or federal court, as well as information regarding the outcome of each civil action or appeal. Compliance with R.C. 2969.25(A) is mandatory, and the failure to comply subjects Smith's complaint to dismissal or denial. State ex rel. Bey v. Loomis, 165 Ohio St.3d 267, 2021-Ohio-2066, 178 N.E.3d 468; State ex rel. Ware v. Pureval, 160 Ohio St.3d 387, 2020-Ohio-4024, 157 N.E.3d 714; State ex rel. McDougald v. Greene, 155 Ohio St.3d 216, 2018-Ohio-4200, 120 N.E.3d 779.
{¶ 4} In addition, Smith has failed to 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. The failure to comply with R.C. 2969.25(C) constitutes sufficient reason to deny a writ claim, deny indigency status, and assess costs against Smith. State ex rel. Pamer v. Collier, 108 Ohio St.3d 492, 2006-Ohio-1507, 844 N.E.2d 842; State ex rel. Hunter v. Cuyahoga Cty. Court of Common Pleas, 88 Ohio St.3d 176, 724 N.E.2d 420 (2000).
{¶ 5} Finally, noncompliance with R.C. 2969.25(A) and 2969.25(C) cannot be cured by amendment of the original complaint:
The requirements of R.C. 2969.25 are mandatory and failure to comply with them requires dismissal of an inmate's complaint. State ex rel. Washington v. Ohio Adult Parole Auth., 87 Ohio St.3d 258, 259, 1999 Ohio 53, 719 N.E.2d 544 (1999), citing State ex rel. Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421, 422, 1998 Ohio 218, 696 N.E.2d 594 (1998). As held by the court of appeals, the affidavit required by R.C. 2969.25(A) must be filed at the time the complaint is filed, and an inmate may not cure the defect by later filings. Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, ¶ 9, 797 N.E.2d 982 (an inmate's "belated attempt to file the required affidavit does not excuse his noncompliance. See R.C. 2969.25(A), which requires that the affidavit be filed '[a]t the time that an inmate commences a civil action or appeal against a government entity or employee'" [emphasis sic]).
Nor is this a dismissal on the merits requiring prior notice, as asserted by [the inmate]. Because the failure to comply with the mandatory requirements of R.C. 2969.25 cannot be cured, prior notice of the dismissal would have afforded Hall no recourse.State ex rel. Hall v. Mohr, 140 Ohio St.3d 297, 2014-Ohio-3735, 17 N.E.3d 581, ¶ 4. See also State ex rel. Bey v. Bur. of Sentence Computation, Slip Opinion No. 2022- Ohio-236, wherein the Supreme Court of Ohio reaffirmed the holding that the failure of an inmate to comply with the mandatory requirements of R.C. 2969.25 deprives this court "of jurisdiction to entertain his claims." Bey at ¶ 12.
II. Complaint for Procedendo - Analysis
{¶ 6} To be entitled to a writ of procedendo, Smith must demonstrate a clear legal right to the requested extraordinary relief, a clear legal duty on the part of Judge Sheehan and Judge Shaughnessy to provide the requested relief, and a lack of an adequate remedy in the ordinary course of law. State ex rel. Cowell v. Croce, 157 Ohio St.3d 103, 2019-Ohio-2844, 131 N.E.3d 934 ; State ex rel. Jaffal v. Calabrese, 105 Ohio St.3d 440, 2005-Ohio-2591, 828 N.E.2d 107.
{¶ 7} Herein, Smith argues that he was improperly sentenced to a term of life imprisonment. However, an extraordinary writ is not the proper remedy for alleged sentencing errors, because a convicted defendant has or had an adequate remedy at law by way of direct appeal. State ex rel. Ridenour v. OConnell, 147 Ohio St.3d 351, 2016-Ohio-7368, 65 N.E.3d 742. Here, Smith has or had adequate remedies in the ordinary course of law, e.g., appeal and postconviction relief, for review of any alleged sentencing error. State ex rel. Nelson v. Russo, 160 Ohio St.3d 74, 2020-Ohio-1541, 153 N.E.3d 67; State ex rel. Hughley v. McMonagle, 123 Ohio St.3d 91, 2009-Ohio-4088, 914 N.E.2d 371.
{¶ 8} Accordingly, we grant the respondents' joint motion for summary judgment. Costs to Smith. The court directs the clerk of courts to serve all parties with notice of this judgment and the date of entry upon the journal as required by Civ.R. 58(B).
{¶ 9} Writ denied.
ANITA LASTER MAYS, J., and FRANK DANIEL CELEBREZZE, III, CONCUR