Court of Appeals of Ohio, Eighth District, Cuyahoga
STATE OF OHIO EX REL. TRAMAINE EDWARD MARTIN, Relator,
HON. JOSEPH D. RUSSO, JUDGE, ET AL., Respondents.
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
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. In Cuyahoga C.P. No. CR-09-526971-A,
relator was convicted of drug possession and court costs were
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). 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.
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 ...