[Cite as State ex rel. Holmes v. State, 2014-Ohio-4642.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO, EX REL., SCOTT : Hon. W. Scott Gwin, P.J.
HOLMES : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
Relator :
:
-vs- : Case No. 2014CA0010
:
STATE OF OHIO :
: OPINION
Respondent
CHARACTER OF PROCEEDING: Writ of Mandamus
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: October 20, 2014
APPEARANCES:
For Relator For Respondent
SCOTT A. HOLMES Pro Se BENJAMIN E. HALL
L.E.C.I. Assistant Prosecuting Attorney
Box 56 318 Chestnut Street
Lebanon, OH 45036 Coshocton, OH 43812
[Cite as State ex rel. Holmes v. State, 2014-Ohio-4642.]
Gwin, P.J.
{¶1} Relator, Scott Holmes, has filed a Petition for Writ of Mandamus
requesting this Court grant Relator the right to appeal his sentence in his criminal case
which was filed on September 16, 2010. The petition names Prosecutor Jason Givens
as the Respondent.
{¶2} For a writ of mandamus to issue, the relator must have a clear legal right
to the relief prayed for, the respondent must be under a clear legal duty to perform the
requested act, and relator must have no plain and adequate remedy in the ordinary
course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50,
451 N.E.2d 225.
{¶3} Respondent has filed a motion to dismiss the complaint arguing the issue
presented in the petition is res judicata because Relator has already pursued a request
for delayed appeal which was denied by this Court.
{¶4} Relator is an inmate at the Ohio Department of Corrections. He has not
filed an affidavit listing all prior civil actions as required by R.C. 2969.25 which provides,
(A) At the time that an inmate commences a civil action or appeal
against a government entity or employee, the inmate shall file with the
court an affidavit that contains a description of each civil action or appeal
of a civil action that the inmate has filed in the previous five years in any
state or federal court. The affidavit shall include all of the following for
each of those civil actions or appeals:
(1) A brief description of the nature of the civil action or appeal;
Coshocton County, Case No. 2014CA0010 3
(2) The case name, case number, and the court in which the civil
action or appeal was brought;
(3) The name of each party to the civil action or appeal;
(4) The outcome of the civil action or appeal, including whether the
court dismissed the civil action or appeal as frivolous or malicious under
state or federal law or rule of court, whether the court made an award
against the inmate or the inmate's counsel of record for frivolous conduct
under section 2323.51 of the Revised Code, another statute, or a rule of
court, and, if the court so dismissed the action or appeal or made an
award of that nature, the date of the final order affirming the dismissal or
award.
Ohio Rev. Code Ann. § 2969.25.
{¶5} “The requirements of R.C. 2969.25 are mandatory and failure to comply
with them requires dismissal of an inmate's complaint. State ex rel. Washington v. Ohio
Adult Parole Auth., 87 Ohio St.3d 258, 259, 719 N.E.2d 544 (1999), citing State ex rel.
Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421, 422, 696 N.E.2d 594 (1998). As held by
the court of appeals, the affidavit required by R.C. 2969.25(A) must be filed at the time
the complaint is filed, and an inmate may not cure the defect by later filings. Fuqua v.
Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, 797 N.E.2d 982, ¶ 9 (an inmate's
“belated attempt to file the required affidavit does not excuse his noncompliance. See
R.C. 2969.25(A), which requires that the affidavit be filed ‘[a]t the time that an inmate
commences a civil action or appeal against a government entity or employee.’ ”
[emphasis sic] ).” State ex rel. Hall v. Mohr, 2014-Ohio-3735.
Coshocton County, Case No. 2014CA0010 4
{¶6} Because Relator did not file the required affidavit, we must dismiss the
petition.
{¶7} Even had we considered the merits of the petition, we would not have
granted the request for writ of mandamus. Relator has cited no authority for the
proposition that Respondent, Jason Givens, has a clear legal duty or even ability to
provide Relator with an appeal.
{¶8} Based upon the foregoing, this cause is dismissed.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur