Court of Appeals of Ohio, Seventh District, Mahoning
Paul J. Gains, Mahoning County Prosecutor and Atty. Ralph M.
Rivera, Assistant Prosecuting Attorney, for
Perry, Sr., Pro se, Inmate No. 195.
BEFORE: Cheryl L. Waite, Carol Ann Robb, David A.
OPINION AND JUDGMENT ENTRY
Relator Morris Perry, Sr., proceeding on his own behalf, has
filed this original action for a writ of mandamus asking this
Court to compel Respondent Judge Maureen A. Sweeney of the
Mahoning County Common Pleas Court to rule on certain
pretrial motions. These motions were also filed by Relator on
his own behalf, although he is represented by counsel, and
involve a pending criminal case in which he is the defendant.
State v. Perry, Mahoning C.P. No. 2018 CR 00997.
Counsel for Respondent has filed a combined answer and motion
to dismiss, highlighting procedural deficiencies in
Relator's petition as well as arguing that it should fail
on the substantive merits.
The Mahoning County Grand Jury indicted Relator on one count
of felony-life rape. Although the case has a lengthy,
complicated, and confusing procedural history, it remains in
the pretrial phase. This is due in large part to
Relator's dissatisfaction with his first appointed trial
counsel, his filing of pretrial motions on his own behalf
while represented by counsel, his unsuccessful attempt to
have the trial court judge disqualified from presiding over
the case, and his successful bid to obtain new appointed
Generally, a relator may file an original action seeking a
writ of mandamus or a writ of procedendo to compel a court to
rule on a pending motion. A writ of mandamus is an
extraordinary remedy which should be exercised by this Court
with caution and issued only when the right is clear.
State ex rel. Brown v. Ashtabula Cty. Bd. of
Elections, 142 Ohio St.3d 370, 2014-Ohio-4022, 31 N.E.3d
596, ¶ 11. Entitlement to a writ of mandamus requires
the relator to demonstrate: (1) relator has a clear legal
right to the relief, (2) respondent has a clear legal duty to
provide that relief, and (3) there is no other adequate
remedy at law. State ex rel. Taxpayers for Westerville
Schools v. Franklin Cty. Bd. of Elections, 133 Ohio
St.3d 153, 2012-Ohio-4267, 976 N.E.2d 890, ¶ 12.
The state argues that Relator's petition contains three
procedural deficiencies, each of which emanate from R.C.
2969.21 et seq. which imposes certain procedural requirements
on civil actions or appeals brought by inmates. Following his
indictment, Relator was taken into custody and incarcerated
in the county jail. While at one point Relator was released
after posting a $50, 000.00 surety bond, it appears he
violated the conditions of that bond and has since been
returned to the county jail. Regardless whether Relator is
jailed or has been released on bond while awaiting trial,
Relator does not fall within the definition of an
"inmate." An" 'inmate' means a person
who is in actual confinement in a state correctional
institution or in a county, multicounty, municipal,
municipal-county, or multicounty-municipal jail or workhouse
or a releasee who is serving a sanction in a violation
sanction center." R.C. 2969.21(D). Relator is not
presently serving a sanction and has not been convicted or
sentenced at this time. Therefore, a different set of
procedural requirements apply to his petition.
This Court is vested with jurisdiction to hear an original
mandamus action pursuant to Article IV, Section 3(B)(1) of
the Ohio Constitution and R.C. 2731.02. There are three
specific requirements for the filing of an application for a
writ of mandamus. The application (1) must be by petition,
(2) in the name of the state on the relation of the person
applying, and (3) verified by affidavit. R.C. 2731.04.
Relator's petition does not meet the second and third
requirements: it was not captioned in the name of the state
on the relation of the person applying and it was not
verified by affidavit.
By itself, Relator's failure to verify his mandamus
petition by affidavit, as required by R.C. 2731.04, is not a
fatal defect since the verification requirements contained in
R.C. 2731.04 have been displaced by Civ.R. 11. State ex
rel. Madison v. Cotner, 66 Ohio St.2d 448, 449,
423 N.E.2d 72 (1981); State ex rel. Clark v.
Krichbaum, 7th Dist. Mahoning No. 07-MA-66,
2007-Ohio-3185, ¶ 10.
However, Relator's failure to caption his mandamus action
in the name of the state on the relation of the person
applying is a different matter. If a respondent alerts a
relator of his or her failure to properly caption a mandamus
action and the relator does not seek leave to amend his or
her complaint to comply with R.C. 2731.04, the mandamus
action must be dismissed. Blankenship v. Blackwell,
103 Ohio St.3d 567, 2004-Ohio-5596, 817 N.E.2d 382, ¶
36, citing Litigaide, Inc. v. Lakewood Police Dept.
Custodian of Records, 75 Ohio St.3d 508, 664 N.E.2d 521
(1996). Here, the state has alerted Relator of his failure to
properly caption his mandamus action by way of its combined
answer and motion to dismiss, albeit relying on the incorrect
Ohio Revised Code section. Relator has not responded to the
combined answer and motion nor has he sought leave to amend
his complaint to comply with R.C. 2731.04. Therefore,
Relator's omission provides sufficient grounds to dismiss
this action. Blankenship, supra.
Putting the procedural deficiencies of Relator's petition
aside, the petition also fails on its merits, for two
reasons. First, Relator has been represented by appointed
counsel at all times in the trial court proceedings. Although
a criminal defendant has the right to counsel or the right to
act pro se, a defendant does not have any right to
"hybrid representation." State v. Martin,103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, paragraph
one of the syllabus; State v. Thompson, 33 Ohio
St.3d 1, 6-7, 514 N.E.2d 407 (1987). The right to counsel and