Opinion
No. 101635
09-18-2014
STATE OF OHIO, EX REL. ANTIONE TALLEY RELATOR v. JUDGE DEENA R. CALABRESE RESPONDENT
FOR RELATOR Antione Talley Inmate #A651-941 Lake Erie Correctional Institution P.O. Box 8000 501 Thompson Road Conneaut, Ohio 44030 ATTORNEYS FOR RESPONDENT Timothy J. McGinty Cuyahoga County Prosecutor By: James E. Moss Assistant County Prosecutor 9th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: WRIT DENIED Writ of Mandamus
Motion No. 477283
Order No. 478020
FOR RELATOR
Antione Talley
Inmate #A651-941
Lake Erie Correctional Institution
P.O. Box 8000
501 Thompson Road
Conneaut, Ohio 44030
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Antione Talley ("Talley") has petitioned this court for a writ of mandamus. Talley seeks an order from this court that requires Judge Deena R. Calabrese to award him additional jail-time credit in State v. Talley, Cuyahoga C.P. No. CR-11-574581. Judge Calabrese has filed a motion for summary judgment, which we grant for the following reasons.
{¶2} Mandamus is precluded if relator has or had an adequate remedy of law even if relator fails to use it. State ex rel. Nash v. Fuerst, 8th Dist. Cuyahoga No. 99027, 2013-Ohio-592, ¶ 6, citing State ex rel. Tran v. McGrath, 78 Ohio St.3d 45, 676 N.E.2d 108 (1997), and State ex rel. Boardwalk Shopping Ctr., Inc. v. Court of Appeals for Cuyahoga Cty., 56 Ohio St.3d 33, 564 N.E.2d 86 (1990). "[A] claim for jail-time credit is remediable in the ordinary course of the law by motion and appeal." State ex rel. Franks v. Cosgrove, Judge, 135 Ohio St.3d 249, 2013-Ohio-402, 985 N.E.2d 1264, ¶ 1. The trial court's calculation of jail-time credit cannot be addressed through an extraordinary writ. Powell v. Corrigan, 8th Dist. Cuyahoga No. 98530, 2012-Ohio-5187, ¶ 3, citing State ex rel. Ponsky v. Koch, 8th Dist. Cuyahoga No. 92437, 2009-Ohio-339. Any error associated with the calculation of jail-time credit must be addressed through a direct appeal. Id, citing State ex rel. Flakes v. Russo, 8th Dist. Cuyahoga No. 94044, 2009-Ohio-6474 (other citations omitted). Mandamus is not appropriate.
{¶3} It further appears that the petition is moot. Attached to respondent's motion for summary judgment are orders dated July 23, 2014, that granted relator 269 days of jail-time credit in CR-13-573768 and granted him 226 days of jail-time credit in CR-13-574581. "Neither procedendo nor mandamus will compel the performance of a duty that has already been performed." State ex rel. Fontanella v. Kantos, 117 Ohio St.3d 514, 2008-Ohio-1431, 885 N.E.2d 220, ¶ 6.
{¶4} In addition, Talley's petition is defective for failure to comply with Loc.R. 45(B)(1)(a). The failure to comply with the supporting affidavit provision of Loc.App.R. 45(B)(1)(a) requires dismissal of the action. State ex rel. Leon v. Cuyahoga Cty. Court of Common Pleas, 8th Dist. Cuyahoga No. 92826, 2009-Ohio-1612, aff'd, 123 Ohio St.3d 124, 2009-Ohio-4688, 914 N.E.2d 402.
{¶5} Accordingly, we grant Judge Calabrese's motion for summary judgment. Respondent to pay costs. Costs waived. This court directs the clerk of courts to serve all parties with notice of this judgment and its date of entry upon the journal as required by Civ.R. 58(B).
{¶6} Writ denied. EILEEN T. GALLAGHER, JUDGE MARY J. BOYLE, A.J., and
MELODY J. STEWART, J., CONCUR
KEY WORDS:
#101635 - S/O Ex Rel. Antione Talley v. Judge Deena R. Calabrese Writ of mandamus; adequate remedy at law; appeal; motion for jail time credit; calculation of jail time credit. Relator is not entitled to a writ of mandamus to compel an order for jail time credit because he has a remedy in the ordinary course of the law by motion and appeal. Additionally, respondent issued orders granting jail time credit rendering the petition for mandamus moot.