State ex rel. Nicholson v. Koch

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[Cite as State ex rel. Nicholson v. Koch, 2010-Ohio-4143.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 95283 STATE OF OHIO, EX REL. SAMUEL NICHOLSON RELATOR vs. JUDITH KILBANE KOCH, JUDGE RESPONDENT JUDGMENT: WRIT DENIED Writ of Procedendo Motion No. 436442 Order No. 436678 RELEASE DATE: FOR RELATOR September 1, 2010 2 Samuel Nicholson, pro se Inmate Number: 543-348 Trumbull Correctional Inst. P.O. Box 901 Leavittsburg, Ohio 44430 ATTORNEYS FOR RESPONDENT William D. Mason Cuyahoga County Prosecutor By: James E. Moss Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 MARY EILEEN KILBANE, J.: {¶ 1} Samuel Nicholson, the relator, has filed a complaint for a writ of procedendo. Nicholson seeks an order from this court which requires Judge Brendan J. Sheehan, the respondent, to issue findings of fact and conclusions of law with regard to a petition for post-conviction relief that was filed in State v. Nicholson, Cuyahoga County Court of Common Pleas Case No. CR-498671.1 Judge Sheehan has filed a motion for summary judgment, which we grant for the following reasons. {¶ 2} Initially, we find that Nicholson s complaint for a writ of procedeondo is defective. Nicholson has failed to comply with R.C. 2969.25, 1 Sua sponte, Judge Brendan J. Sheehan is substituted for Judge Judith Kilbane Koch per Civ.R 25(D)(1). 3 which requires the attachment of an affidavit to the complaint for a writ of procedendo that describes each civil action or appeal filed within the previous five years in any state or federal court. Nicholson s failure to comply with R.C. 2969.25 requires the dismissal of his complaint for a writ of mandamus. State ex rel. Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421, 1998-Ohio-218, 696 N.E.2d 594; Alford v. Winters, 80 Ohio St.3d 285, 1997-Ohio-117, 685 N.E.2d 1242. {¶ 3} It must also be noted that Nicholson has failed to comply Loc.App.R. 45(B)(1)(a), which mandates that the complaint for a writ of mandamus be supported by a sworn affidavit that specifies the details of his claim. The failure of Nicholson to comply with the supporting affidavit requirement of Loc.App.R. 45(B)(1)(a) requires the dismissal of his complaint for a writ of mandamus. State ex rel. Smith v. McMonagle (Jul. 17, 1996), Cuyahoga App. No. 70899; State ex rel. Wilson v. Calabrese (Jan. 18, 1996), Cuyahoga App. No. 70077. {¶ 4} Finally, we find that Nicholson s complaint for a writ of procedendo is moot. Attached to Judge Sheehan s motion for summary judgment is a copy of a judgment entry, as journalized on August 2, 2010, which demonstrates a disposition of Nicholson s petition for post-conviction relief. The journal entry includes findings of fact and conclusions of law. State ex rel. Konoff v. Shafer, 80 Ohio St.3d 294, 1997-Ohio-119, 685 N.E.2d 4 1248; Martin v. Judges of Lucas Cty. Court of Common Pleas (1990), 50 Ohio St.3d 71, 552 N.E.2d 906. {¶ 5} Accordingly, we grant Judge Sheehan s motion for summary judgment. Costs to Judge Sheehan. It is further ordered that the Clerk of the Eighth District Court of Appeals serve notice of this judgment upon all parties as required by Civ.R. 58(B). Writ denied. MARY EILEEN KILBANE, PRESIDING JUDGE MARY J. BOYLE, J., and JAMES J. SWEENEY, J., CONCUR

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