Court of Appeals of Ohio, Eighth District, Cuyahoga
STATE OF OHIO, EX REL. GEORGE R. YOUNG RELATOR
JUDGE SHERRIE M. MIDAY RESPONDENT
of Mandamus Motion No. 514914 Order No. 516203
RELATOR George R. Young, pro se
ATTORNEYS FOR RESPONDENT Michael C. O'Malley Cuyahoga
County Prosecutor By: James E. Moss Assistant County
JOURNAL ENTRY AND OPINION
George R. Young has filed a complaint for a writ of mandamus.
Young seeks an order from this court that requires Judge
Sherrie M. Miday to issue rulings with regard to three
motions that were filed in State v. Young, Cuyahoga
C.P. No. CR-13-573242. Judge Miday has filed a motion for summary
judgment that is granted for the following reasons.
Young argues that Judge Miday is required to issue rulings
with regard to three motions filed in CR-13-573242: 1) motion
for dismissal of charges for denial of speedy trial, filed
pro se on April 17, 2014; 2) motion to dismiss for failure to
commence a prosecution, filed by counsel on February 26,
2016; and 3) motion to dismiss based upon trial court's
lack of subject-matter jurisdiction, judicial misconduct, and
denial of due process, attorney misconduct, prosecutorial
misconduct, and trial court abused discretion, filed pro se
on May 11, 2016. The motions filed on April 17, 2014, and May
11, 2016, were filed pro se by Young while represented by
counsel. The docket maintained in CR-13-573242 demonstrates
that on April 17, 2014, Young was represented by attorney
Donald Butler, and on May 11, 2016, Young was represented by
attorney John F. Corrigan.
A defendant cannot act as co-counsel in a case where he has
counsel. It is well established that although a defendant
possesses the right to counsel or the right to act pro se, a
defendant possesses no right to hybrid representation.
State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471,
816 N.E.2d 227; State v. Thompson, 33 Ohio St.3d 1,
514 N.E.2d 407 (1987). As a result, when counsel represents a
criminal defendant, a trial court may not entertain a
defendant's pro se motion. State v. Washington,
8th Dist. Cuyahoga Nos. 96565 and 96568, 2012-Ohio-1531.
Thus, Judge Miday possesses no duty to render any rulings
with regard to the pro se motions filed on April 17, 2014,
and May 11, 2016.
In addition, a review of the docket in CR-13-573242
demonstrates that the motion filed on February 26, 2016, that
dealt with a dismissal motion premised upon the failure to
commence a timely prosecution, was denied on April 12, 2016.
"[R]elief is unwarranted because mandamus * * * will not
compel the performance of a duty that has already been
performed." State ex rel. Hopson v. Cuyahoga Cty.
Court of Common Pleas, 135 Ohio St.3d 456,
2013-Ohio-1911, 989 N.E.2d 49, ¶ 4.
Finally, Young's complaint for a writ of mandamus is
procedurally defective because he has failed to comply with
R.C. 2969.25(A) and 2969.25(C). Pursuant to R.C. 2969.25(A),
an inmate that commences a civil action against a government
entity or employee must file a sworn affidavit that contains
a description of each civil action or appeal of a civil
action filed in the previous five years in any state or
federal court. State ex rel McGrath v. McDonnell 126
Ohio St.3d 511, 2010-Ohio-4726, 935 N.E.2d 830. R.C.
2969.25(C)(1) requires that Young file a statement setting
forth his inmate account balance "for each of the
preceding six months as certified by the institutional
Young has failed to provide this court with a notarized
affidavit that describes previously filed civil actions.
Young has also failed to provide this court with a certified
statement setting forth the balance in his inmate account.
Freed v. Bova, 8th Dist. Cuyahoga No. 99908,
2013-Ohio-4378; Turner v. Russo, 8th Dist. Cuyahoga
No. 87852, 2006-Ohio-4490. It must also be noted that the
failure to comply with the mandatory requirements of R.C.
2969.25(A) and 2969.25(C) cannot be cured through amendment
of the original complaint. State ex rel. Swain v. Ohio
Adult Parole Auth., 151 Ohio St.3d 552, 2017-Ohio-9175,
90 N.E.3d 936; Fugua v. Williams, 100 Ohio St.3d
211, 2003-Ohio-5533, 797 N.E.2d 982.
Accordingly, we grant Judge Miday's motion for summary
judgment. Costs to Young. 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.
A GALLAGHER, AJ, and ANITA ...