State ex rel. Alford v. Winters

[This opinion has been published in Ohio Official Reports at 

80 Ohio St.3d 285

.]




   THE STATE EX REL. ALFORD, APPELLANT, V. WINTERS, JUDGE, APPELLEE.
              [Cite as State ex rel. Alford v. Winters, 

1997-Ohio-117

.]
Mandamus to compel judge to vacate relator’s conviction and sentence and
        discharge him from Lorain Correctional Institution—Complaint
        dismissed when R.C. 2969.25(A) and (C) not complied with.
  (No. 97-992—Submitted September 23, 1997—Decided November 19, 1997.)
        APPEAL from the Court of Appeals for Summit County, No. 18480.
                                  __________________
        {¶ 1} In April 1997, appellant, Larry S. Alford, an inmate at Lorain
Correctional Institution, filed a complaint for a writ of mandamus in the Court of
Appeals for Summit County to compel appellee, Summit County Common Pleas
Court Judge James P. Winters, to vacate Alford’s 1988 conviction and sentence and
discharge him from prison.          Alford also filed affidavits of verification and
indigency.    The court of appeals subsequently dismissed Alford’s complaint
because he “did not file an affidavit pursuant to R.C. 2969.25(A) with his petition”
and he “neither paid the deposit against costs nor proceeded in accordance with
R.C. 2969.25(C) to obtain a waiver of the deposit.”
        {¶ 2} This cause is now before the court upon an appeal as of right.
                                  __________________
        Larry S. Alford, pro se.
        Maureen O’Connor, Summit County Prosecuting Attorney, and Paul
Michael Maric, Assistant Prosecuting Attorney, for appellee.
                                  __________________
        Per Curiam.
        {¶ 3} We affirm the judgment of the court of appeals for the reasons stated
in its opinion. Alford failed to comply with the mandatory requirements of R.C.
                                    SUPREME COURT OF OHIO




2969.25(C) in commencing his mandamus action.1 Alford does not contend that
R.C. 2969.25 is inapplicable to mandamus actions. State ex rel. Wright v. Ohio
Adult Parole Auth. (1996), 

75 Ohio St.3d 82, 85

, 

661 N.E.2d 728, 731

, quoting
R.C. 2731.09 (“Issues of fact raised by the pleadings in mandamus actions ‘must
be tried, and further proceedings had, in the same manner as in civil actions.’ ”); cf.
Martin v. United States (C.A.7, 1996), 

96 F.3d 853, 854

 (question of whether
mandamus action brought by federal prison inmate constitutes a “civil action” for
purposes of federal Prison Litigation Reform Act depends on the circumstances).
The court of appeals’ dismissal of Alford’s complaint was further justified because
habeas corpus, rather than mandamus, is the appropriate action for persons claiming
entitlement to immediate release from prison. State ex rel. Lemmon v. Ohio Adult



1. R.C. 2969.25 provides:
          “(A) At the time an inmate commences a civil action or appeal against a government entity
or employee, the inmate shall file with the court an affidavit that contains a description of each civil
action or appeal of a civil action that the inmate has filed in the previous five years in any state or
federal court. The affidavit shall include all of the following for each of those civil actions or
appeals:
          “(1) A brief description of the nature of the civil action or appeal;
          “(2) The case name, case number, and the court in which the civil action or appeal was
brought;
          “(3) The name of each party to the civil action or appeal;
          “(4) The outcome of the civil action or appeal, including whether the court dismissed the
civil action or appeal as frivolous or malicious under state or federal law or rule of court, whether
the court made an award against the inmate or the inmate’s counsel of record for frivolous conduct
under section 2323.51 of the Revised Code, another statute, or a rule of court, and, if the court so
dismissed the action or appeal or made an award of that nature, the date of the final order affirming
the dismissal or award.
          “* * *
          “(C) If an inmate who files a civil action or appeal against a government entity or employee
seeks a waiver of the prepayment of the full filing fees assessed by the court in which the action or
appeal is filed, the inmate shall file with the complaint or notice of appeal an affidavit that the inmate
is seeking a waiver of the prepayment of the court’s filing fees and an affidavit of indigency. The
affidavit of waiver and the affidavit of indigency shall contain all of the following:
          “(1) A statement that sets forth the balance in the inmate account of the inmate for each of
the preceding six months, as certified by the institutional cashier;
          “(2) A statement that sets forth all other cash and things of value owned by the inmate at
that time.”




                                                    2
                             January Term, 1997




Parole Auth. (1997), 

78 Ohio St.3d 186

, 188, 

677 N.E.2d 347, 349

 (affirming
dismissal of mandamus complaints filed by inmates).
                                                         Judgment affirmed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
                            __________________




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