State ex Rel. Simms v. Sutula

Full title: STATE OF OHIO EX REL. TIMOTHY G. SIMMS, Relator v. JUDGE KATHLEEN A…

Court: Court of Appeals of Ohio, Eighth District, Cuyahoga County

Date published: Dec 3, 2001

No. 80173 (Ohio Ct. App. Dec. 3, 2001)

Opinion

No. 80173.

December 3, 2001.

PETITION FOR WRIT OF MANDAMUS MOTION No. 32594.

For Relator: Timothy G. Simms, Pro Se No. 310-050 Mansfield Correctional Institution P.O. Box 788 Mansfield, Ohio 44901.

For Respondent: William D. Mason, Esq. Cuyahoga County Prosecutor BY: L. Christopher Frey, Esq. Assistant County Prosecutor The Justice Center 8th Floor 1200 Ontario Street Cleveland, Ohio 44113.

JOURNAL ENTRY AND OPINION

MICHAEL J. CORRIGAN, J.:

Relator, Timothy Simms, has filed a complaint for a writ of mandamus. The relator seeks an order from this Court which requires the respondent, Judge Kathleen Ann Sutula, to provide him with a transcript of the re-sentencing hearing held on May 12, 1997, in the underlying case of State v. Simms, Cuyahoga County Court of Common Pleas Case No. CR-320010. The respondent has filed a motion for summary judgment which we grant for the following reasons.

On May 12, 1997, the relator was re-sentenced in CR-320010. On July 12, 1997, the relator's "motion for production of transcripts by indigent defendant" was granted. Thus, the relator has already been provided with a copy of the re-sentencing that occurred on May 12, 1997, in CR-320010. Pursuant to Ohio law, the respondent is under no duty to provide the relator with a second copy of a transcript. State ex rel. Grove v. Nadel (1998), 81 Ohio St.3d 325, 687 N.E.2d 761; State ex rel. Murr v. Thierry (1987), 34 Ohio St.3d 45, 517 N.E.2d 226; State ex rel. Ralston v. Hill (1981), 65 Ohio St.2d 58, 417 N.E.2d 1380. Finally, the relator has failed to comply with R.C. 2969.25 which provides that an affidavit, which details and describes each civil action or appeal filed by the relator within the previous five (5) years in any state or federal court, must be attached to the relator's complaint for a writ of mandamus. State ex rel. Zanders v. Ohio Parole Board (1998), 82 Ohio St.3d 421, 696 N.E.2d 594; State ex rel. Alford v. Winters (1997), 80 Ohio St.3d 285, 685 N.E.2d 1242.

Accordingly, we grant the respondent's motion for summary judgment. It is further ordered that the Clerk of the Eighth District Court of Appeals shall serve upon all parties, pursuant to Civ.R. 58(B), notice of this judgment and date of entry. Relator to pay costs.

Writ denied.

JAMES D. SWEENEY. P.J. and COLLEEN CONWAY COONEY. J. CONCUR.