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State ex rel. Martin v. Russo

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 28, 2019

STATE OF OHIO EX REL. TRAMAINE EDWARD MARTIN, Relator,
v.
HON. JOSEPH D. RUSSO, JUDGE, ET AL., Respondents.

         Writ of Mandamus Motion Nos. 526546 and 526895 Order No. 527714

          Tramaine Edward Martin, pro se.

          Michael C. O'Malley, Prosecuting Attorney, and James E. Moss, Assistant Prosecuting Attorney, for respondents.

          JOURNAL ENTRY AND OPINION

          RAYMOND C. HEADEN, J.

         {¶ 1} Relator, Tramaine Edward Martin, seeks a writ of mandamus to require respondents Judges Joseph D. Russo and Michael J. Russo, to hold hearings to determine relator's ability to pay court costs. Respondents filed a joint motion to dismiss, which we grant and dismiss the complaint for writ of mandamus.

         Procedural and Factual History

         {¶ 2} Journal entries attached to the complaint indicate the following. In Cuyahoga C.P. No. CR-10-532936-A, relator was convicted of failure to comply and receiving stolen property. The June 8, 2010 sentencing entry imposed court costs.[1] In Cuyahoga C.P. No. CR-09-526971-A, relator was convicted of drug possession and court costs were imposed.

         {¶ 3} A review of the docket in both cases shows that relator filed motions to vacate court costs on May 8, 2018. On May 11, 2018, respondent Judge Joseph Russo entered an order denying one motion, and respondent Judge Michael Russo denied the other motion on May 25, 2018. On October 15, 2018, relator availed himself of the remedy provided by law by filing notices of appeal in both cases. However, these notices were not timely filed, which deprived this court of jurisdiction to hear the appeals.

         {¶ 4} On February 21, 2019, relator filed the instant complaint for writ of mandamus. The complaint seeks an order mandating that respondents hold hearings pursuant to R.C. 2947.23(B).[2] Respondents filed a motion to dismiss, and relator answered with a motion to strike the motion to dismiss and his own motion for summary judgment.

         Law and Analysis

         A. Applicable Standards

         {¶ 5} "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. In order for a writ in mandamus to issue (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. State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914 (1987). If there is a "plain and adequate remedy in the ordinary course of law," regardless of whether it was used, relief in mandamus is precluded. R.C. 2731.05; State ex rel. Tran v. McGrath, 78 Ohio St.3d 45, 676 N.E.2d 108 (1997).

         {¶ 6} Respondents have filed a motion to dismiss for failure to state a claim.

"In construing a complaint upon a motion to dismiss for failure to state a claim, the material allegations of the complaint are taken as admitted. Jenkins v. McKeithen (1969), 395 U.S. 411, 421 [89 S.Ct. 1843');">89 S.Ct. 1843, 23 L.Ed.2d 404]. [All reasonable inferences must also be drawn in favor of the nonmoving party. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753, 756; Byrd v. Faber (1991), 57 Ohio St.3d 56, 60, 565 N.E.2d 584.] Then, before the court may dismiss the complaint,' * * * it must appear beyond doubt from the complaint that the plaintiff can prove ...

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