State v. Byrge
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[Cite as State v. Byrge, 2009-Ohio-4376.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 92979 EX REL., STATE OF OHIO RELATOR vs. EX REL., THOMAS BYRGE RESPONDENT JUDGMENT: WRIT DENIED WRIT OF MANDAMUS MOTION NO. 420391 ORDER NO. 424772 RELEASE DATE: FOR RELATOR August 24, 2009 2 Thomas Byrge, pro se Inmate No. 510-744 Grafton Correctional Camp 1800 South Avon Belden Road Grafton, Ohio 44044 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 FRANK D. CELEBREZZE, JR., J.: {¶ 1} Thomas Byrge filed this action and is the defendant in State v. Byrge, Cuyahoga County Court of Common Pleas Case No. CR-480474. In the caption of the complaint, Byrge did not identify himself as the relator, failed to identify a respondent, and failed to provide an address for the respondent. Byrge s failure to include the names and addresses of all the parties in the caption, as required by Civ.R. 10(A), may be grounds for dismissing this action. State ex rel. Hall v. Calabrese (Aug. 16, 2001), Cuyahoga App. No. 79810, at 2. For purposes of disposing of this action, this court will treat Byrge as relator and 3 Judge Timothy J. McGinty, the judge presiding over Case No. CR-480474, as respondent. {¶ 2} Initially, we observe that Byrge s claims and the nature of the relief which he requests in his complaint are difficult to discern. If a relator has failed to present clearly the claims asserted and the relief requested, this court may enter judgment against the relator. See, e.g., State ex rel. Moore v. Ohio Adult Parole Auth., Cuyahoga App. No. 81757, 2003-Ohio-1844; State ex rel. Drake v. Sutula (Apr. 29, 1999), Cuyahoga App. No. 75999; State ex rel. Delgado v. Court of Common Pleas Cuyahoga Cty. (Feb. 5, 1998), Cuyahoga App. No. 73341. The lack of clarity in the complaint provides a sufficient basis for this court to deny Byrge s request for relief in mandamus. {¶ 3} From what the court can discern, Byrge complains that respondent imposed a sentence in excess of that which Byrge understood to be the sentence under his plea agreement. He requests that this court compel respondent to vacate the portion of his sentence which is in excess of what Byrge claims was part of his plea. {¶ 4} The fundamental criteria for issuing a writ of mandamus are well-established. In order to be entitled to a writ of mandamus, relator must show (1) that he has a clear legal right to the relief prayed for, (2) that respondents are under a clear legal duty to perform the acts, and (3) that relator has no plain and adequate remedy in the ordinary course of the law. State ex rel. 4 National City Bank v. Bd. of Education (1977), 52 Ohio St.2d 81, 369 N.E.2d 1200. State ex rel. Harris v. Rhodes (1978), 54 Ohio St.2d 41, 42, 374 N.E.2d 641. Of course, all three of these requirements must be met in order for mandamus to lie. {¶ 5} In Caldwell v. State, Cuyahoga App. No. 91880, 2008-Ohio-5098, the relator contended that he was entitled to release from prison after serving the term of years to which he said he agreed as part of his plea agreement. This court granted a motion for summary judgment filed by the court of common pleas and held that: Caldwell did not have a clear legal right to judicial release based upon an alleged plea agreement; the court of common pleas did not have a clear legal duty to grant him judicial release; and Caldwell had an adequate remedy by way of a delayed appeal. Similarly, in Mauer v. Cuyahoga Cty. Court of Common Pleas, Cuyahoga App. No. 89858, 2007-Ohio-3641, the relator requested that this court command the court of common pleas to honor his plea agreement and release him accordingly. This court held that Mauer has or had an adequate remedy in the ordinary course of the law by filing a motion to withdraw his guilty plea under Crim.R. 32.1. Id. at ¶7. {¶ 6} Likewise in this action, Byrge has not demonstrated that he has a clear legal right to relief or that respondent court has a clear legal duty. Additionally, if the relator had an adequate remedy, regardless of whether it was used, relief in mandamus is precluded. (Citations deleted.) State ex rel. 5 Smith v. Fuerst, Cuyahoga App. No. 86118, 2005-Ohio-3829, at ¶4. As Caldwell and Mauer demonstrate, Byrge has or had various remedies. As a consequence, relief in mandamus is not appropriate. {¶ 7} Accordingly, respondent s motion for summary judgment is granted. Relator to pay costs. The clerk is directed to serve upon the parties notice of this judgment and its date of entry upon the journal. Civ.R. 58(B). Writ denied. FRANK D. CELEBREZZE, JR., JUDGE MARY EILEEN KILBANE, P.J., and MELODY J. STEWART, J., CONCUR
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