State ex rel. Brown v. Sutula
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[Cite as State ex rel. Brown v. Sutula, 2017-Ohio-7409.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 105871 STATE OF OHIO, EX RE. ALPHONSO W. BROWN RELATOR vs. THE HONORABLE JOHN D. SUTULA RESPONDENT JUDGMENT: WRIT DENIED Writ of Mandamus Motion No. 509190 Order No. 509602 RELEASE DATE: August 30, 2017 FOR RELATOR Alphonso W. Brown, pro se Inmate No. A178610 Warren Correctional Institution P.O. Box 120 Lebanon, Ohio 45036 ATTORNEYS FOR RESPONDENT Michael C. O’Malley Cuyahoga County Prosecutor By: James E. Moss Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., J.: {¶1} On June 7, 2017, the relator, Alphonso Brown, commenced this mandamus action against the respondent, Judge John D. Sutula,1 to compel the judge to rule on a motion for new trial that Brown filed on August 1, 2016, in the underlying case, State v. Brown, Cuyahoga C.P. No. CR-83-187502-ZA. On August 1, 2017, the respondent judge moved for summary judgment on the grounds of mootness and pleading defect. Attached to the dispositive motion is a copy of a certified journal entry, file-stamped July 28, 2017, that denies Brown’s motion for summary judgment. 2 This journal entry establishes that the respondent has fulfilled his duty to rule on the motion and that Brown has received his requested relief. Therefore, this writ action is moot. {¶2} Relator also did not comply with R.C. 2969.25(C), which requires that an inmate file a poverty affidavit with a certified statement from his prison cashier setting forth the balance in his private account for each of the preceding six months. included the cashier’s statement, but did not attach a poverty affidavit. Brown This also is sufficient reason to deny the mandamus, deny indigency status, and assess costs against the relator. State ex rel. Pamer v. Collier, 108 Ohio St.3d 492, 2006-Ohio-1507, 844 1Pursuant to Civ.R. 21, this court replaces the named respondent, Judge Robert Lawther, with his successor, Judge John D. Sutula. 2Although the journal entry states that the motion for new trial was filed on June 24, 2016, the only pending motion for new trial was the one filed on August 1, 2016. The misnomer is de minimis. N.E.2d 842; State ex rel. Hunter v. Cuyahoga Cty. Court of Common Pleas, 88 Ohio St.3d 176, 2000-Ohio-285, 724 N.E.2d 420; and Hazel v. Knab, 130 Ohio St.3d 22, 2011-Ohio-4608, 955 N.E.2d 378 — the defect may not be cured by subsequent filings. {¶3} Accordingly, this court grants the respondent’s motion for summary judgment and denies the application for a writ of mandamus. Relator to pay costs. This court directs the clerk of courts to serve all parties notice of this judgment and its date of entry upon the journal as required by Civ.R. 58(B). {¶4} Writ denied. FRANK D. CELEBREZZE, JR., JUDGE EILEEN A. GALLAGHER, P.J., and MELODY J. STEWART, J., CONCUR
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