Court of Appeals of Ohio, Eighth District, Cuyahoga
of Mandamus Motion No. 515561 Order No. 516694
RELATOR Ronald L. Harris, Sr. Inmate
ATTORNEYS FOR RESPONDENT Michael C. O'Malley Cuyahoga
County, James E. Moss Assistant County Prosecutor
JOURNAL ENTRY AND OPINION
LASTER MAYS, J.
On February 12, 2018, the relator, Ronald Harris, Sr.,
commenced this mandamus action to compel the Cuyahoga County
Common Pleas Court to rule on (1) a September 11, 2017 motion
for fast and speedy trial; (2) affidavit of notice of alleged
defendant Ronald L. Harris objection to states unnecessary
delay (sic); and (3) a January 9, 2018 motion for dismissal,
all of which he filed, pro se, in the underlying case,
State v. Harris, Cuyahoga C.P. No. CR-17-620794-A.
On March 9, 2018, the respondent moved for summary judgment
on the grounds of lack of duty and procedural defects. Harris
did not file a response. For the following reasons, this
court grants the respondent's motion for summary judgment
and denies the application for a writ of mandamus.
The requisites for mandamus are well established: (1) the
relator must have a clear legal right to the requested
relief, (2) the respondent must have a clear legal duty to
perform the requested relief, and (3) there must be no
adequate remedy at law. Additionally, although mandamus may
be used to compel a court to exercise judgment or to
discharge a function, it may not control judicial discretion,
even if that discretion is grossly abused. State ex rel
Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914
(1987). Mandamus does not lie to correct errors and
procedural irregularities in the course of a case. State
ex rel. Jerninghan v. Gaughan, 8th Dist. Cuyahoga No.
67787, 1994 Ohio App. LEXIS 6227 (Sept. 26, 1994). Moreover,
mandamus is an extraordinary remedy that is to be exercised
with caution and only when the right is clear. It should not
issue in doubtful cases. State ex rel. Taylor v.
Glasser, 50 Ohio St.2d 165, 364 N.E.2d 1 (1977).
Under Ohio law, hybrid representation - a criminal defendant
may represent himself while also being represented by counsel
- is prohibited. State v. Martin, 103 Ohio St.3d
385, 2004-Ohio-5471, 816 N.E.2d 227 and State v.
Pizzaro, 8th Dist. Cuyahoga No. 94849, 2011-Ohio-611. A
review of the docket in the underlying case shows that Harris
is represented by an attorney. Therefore, his motions are not
properly before the court, and the respondent has no duty to
rule on them. Chambers v. Gaul, 8th Dist. Cuyahoga
No. 105229, 2017-Ohio-2765.
Relator also did not comply with R.C. 2969.25(C), which
requires that an inmate file an affidavit of poverty and 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 relator.
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,
2000-Ohio-285, 724 N.E.2d 420; and Hazel v. Knab,
130 Ohio St.3d 22, 2011-Ohio-4608, 955 N.E.2d 378 - the
defect may not be cured by subsequent filings.
Harris's petition is defective because it is improperly
captioned. He styled this petition as "State of Ohio
v. Ronald L. Harris, Sr." 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
Moreover, relator's pleading is deficient because he
styled it as a motion for mandamus. In State ex rel Simms
v. Sutula, 81 Ohio St.3d 110, 111, 689 N.E.2d 564
(1998), the Supreme Court of Ohio affirmed the court of
appeals' dismissal of a writ action by holding:
"original actions for extraordinary relief,
e.g., a writ of procedendo, must be commenced by
filing a complaint or petition rather than a motion."
Accordingly, this court grants the respondent's motion
for summary judgment and denies the application for a writ of
mandamus. Relator to pay costs. This court directs the clerk
of courts to serve all parties notice of this judgment and
its date of entry upon the journal as required by Civ.R.