State ex rel. Gray v. Calabrese
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[Cite as State ex rel. Gray v. Calabrese, 2018-Ohio-4412.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 107487 STATE OF OHIO, EX REL. ARCHIE GRAY RELATOR vs. DEENA CALABRESE, JUDGE RESPONDENT JUDGMENT: WRIT DENIED Writ of Mandamus Motion No. 521405 Order No. 521782 RELEASE DATE: October 26, 2018 FOR RELATOR Archie Gray, pro se Inmate No. A210-850 Grafton Correctional Institution 2500 South Avon-Belden Road Grafton, Ohio 44044 ATTORNEYS FOR RESPONDENT Michael C. O’Malley Cuyahoga County Prosecutor By: James E. Moss Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY EILEEN KILBANE, P.J.: {¶1} Archie Gray has filed a complaint for a writ of mandamus. Gray seeks an order that requires Judge Deena R. Calabrese to render a ruling with regard to a “motion to correct a contrary to law and void sentence” filed on December 8, 2017, in State v. Gray, Cuyahoga C.P. No. CR-89-236255-B. For the following reasons, we deny Gray’s request for a writ of mandamus and grant the motion for summary judgment filed by Judge Calabrese. {¶2} Initially, we find that the complaint is defective because Gray has failed to comply with R.C. 2969.25(A). Pursuant to R.C. 2969.25(A), an inmate that commences a civil action against a government entity or employee must file a sworn affidavit that contains a description of each civil action or appeal of a civil action filed in the previous five years in any state or federal court. Gray has failed to provide this court with a notarized affidavit that describes previously filed civil actions. Freed v. Bova, 8th Dist. Cuyahoga No. 99908, 2013-Ohio-4378; Turner v. Russo, 8th Dist. Cuyahoga No. 87852, 2006-Ohio-4490. {¶3} Finally, attached to the motion for summary judgment is a copy of a judgment entry, journalized on September 20, 2018, that demonstrates Gray’s motion to correct a void sentence was denied. Thus, Gray’s request for a writ of mandamus is moot. “[R]elief is unwarranted because mandamus * * * will not compel the performance of a duty that has already been performed.” State ex rel. Hopson v. Cuyahoga Cty. Court of Common Pleas, 135 Ohio St.3d 456, 2013-Ohio-1911, 989 N.E.2d 49, ¶ 4. Also, mandamus may not be employed to control judicial discretion and compel the trial court judge to grant a motion to correct a void sentence. Thompson v. State, 8th Dist. Cuyahoga No. 99265, 2013-Ohio-1907. {¶4} Accordingly, we grant the motion for summary judgment. Costs waived. The court directs the clerk of courts to serve all parties with notice of this judgment and the date of its entry upon the journal as required by Civ.R. 58(B). {¶5} Writ denied. MARY EILEEN KILBANE, PRESIDING JUDGE PATRICIA ANN BLACKMON, J., and FRANK D. CELEBREZZE, JR., J., CONCUR
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