State ex rel. Smith v. McDonnell

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[Cite as State ex rel. Smith v. McDonnell, 2010-Ohio-6035.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 95786 STATE OF OHIO, EX REL. RODNEY SMITH RELATOR vs. COMMON PLEAS JUDGE, NANCY R. MCDONNELL RESPONDENT JUDGMENT: WRIT DENIED Writ of Mandamus Motion No. 438573 Order No. 439477 RELEASE DATE: FOR RELATOR December 3, 2010 2 Rodney Smith, pro se Inmate No. 0147214 Cuyahoga County Jail P.O. Box 5600 Cleveland, Ohio 44101 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 COLLEEN CONWAY COONEY, J.: {¶ 1} Rodney Smith, the relator, has filed a complaint for a writ of mandamus to require Judge Nancy R. McDonnell to conduct a hearing, in State v. Smith, Cuyahoga County Court of Common Pleas Case No. CR-539775, to address allegations of ineffective assistance of trial counsel. Judge McDonnell has filed a motion for summary judgment, which we grant for the following reasons. {¶ 2} Initially, we find that Smith s complaint for a writ of mandamus is procedurally defective. Smith has failed to comply with Loc.App.R. 45(B)(1)(a), 3 which mandates that his complaint must be supported by a sworn affidavit that specifies the details of his claim. Griffin v. McFaul, 116 Ohio St.3d 30, 2007-Ohio-5506, 876 N.E.2d 527. It must also be noted that Smith has failed to comply with R.C. 2969.25(C), which requires that an inmate, who files a complaint against a government entity or government employee, must support the complaint with a statement that: (1) sets forth the balance in the inmate s account for the preceding six months, as certified by the institutional cashier; and (2) a sworn statement that sets forth all other cash and items of value owned by the inmate. Martin v. Woods, 121 Ohio St.3d 609, 2009-Ohio-1928, 906 N.E.2d 1113. In addition, Smith has failed to comply with R.C. 2969.25(A), which requires the attachment of an affidavit to the complaint that describes each civil action or appeal filed within the previous five years in any state or federal court. State ex rel. Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421, 1998-Ohio-218, 696 N.E.2d 594; State ex rel. Alford v. Winters, 80 Ohio St.3d 285, 1997-Ohio-117, 685 N.E.2d 1242. {¶ 3} Finally, we find that Smith has failed to establish that he is entitled to a writ of mandamus. In order for this court to issue a writ of mandamus, Smith must establish that: (1) he possesses a clear legal right to a hearing with regard to the allegations of ineffective assistance of trial counsel; (2) Judge McDonnell possesses a clear legal duty to conduct a hearing with regard to the allegations of ineffective assistance of trial counsel; and (3) there exists no other adequate 4 remedy in the ordinary course of the law. State ex rel. Harris v. Rhodes (1978), 54 Ohio St.2d 41, 374 N.E.2d 641; State ex rel. Natl. City Bank v. Bd. of Edn. (1977), 52 Ohio St. 2d 81, 369 N.E.2d 1200. {¶ 4} In the case sub judice, Smith s request for a hearing is premised upon a motion to disqualify counsel filed on September 17, 2010. Smith, however, has failed to establish that he possesses a clear legal right to a hearing or that Judge McDonnell possesses a clear legal duty to conduct a hearing with regard to the motion to disqualify counsel. Cf. State ex rel. Keenan v. Calabrese (1994), 69 Ohio St.3d 176, 631 N.E.2d 119; State ex rel. Ney v. Niehaus (1987), 33 Ohio St.3d 118, 515 N.E.2d 914. Smith also possesses or possessed an adequate remedy at law, through an appeal, since the trial court denied the motion to disqualify counsel on September 23, 2010. State ex rel. Hughley v. McMonagle, 121 Ohio St.3d 536, 2009-Ohio-1703, 905 N.E.2d 1220. {¶ 5} Accordingly, we grant Judge McDonnell s motion for summary judgment. Costs to Smith. 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. COLLEEN CONWAY COONEY, JUDGE FRANK D. CELEBREZZE, JR., P.J., and JAMES J. SWEENEY, J., CONCUR 5

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