ORIGINAL SEP..23?013 CLERK OF COURT REME COURT OF OHIO IN THE SUPREME COURT OF OHIO PAUL C. MOON, '^^'P 2. STATE OF OHIO, Ex Rel. Thomas C.

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1 ORIGINAL IN THE SUPREME COURT OF OHIO STATE OF OHIO, Ex Rel. Thomas C. Johnson Supreme Couit Case No.: Relator, VS. PAUL C. MOON, Respondant. RESPONDANT'S MOTION DISMISS Emily Gerber ( ) Assistant Prosecuting Attorney Ottawa County, Ohio 315 Madison Street, 2nd Floor Port Clinton, Ohio (419) Fax (419) Thomas C. Johnson # A Allen Correctional Institution Attention C-Unit 2338 North West St. Lima, Ohio Phone (419) Relator, Pro Se Attorney for Respondent '^^'P 2 SEP..23?013 C L;if 0s f ^^'^^^ "^4 h.r,zu^ s CLERK OF COURT REME COURT OF OHIO

2 Introduction Relator filed this mandamus action on September 5, 2013 against Paul C. Moon, retired judge from the Ottawa County Court of Common Pleas. As a general matter, Relator asserts a sentencing error and specifically requests that this Court compel Respondent to issue an amended sentencing entry. In filing this action, Relator seeks to have the Court waive filing fees and any required deposit. Relator is currently incarcerated for rape and kidnapping. Therefore his case is subject to R.C Paul C. Moon has no authority over Relator's case In State ex r el. Maury v. 1Vartin (2007), 2007 Ohio App. LEXIS 2510, 2007 Ohio 2708, a litigant sought a%rit of znandatilus to compel a retiretl juclge to subini.t certain documents the lit:ibant had filed in the litigant's divorce case. "I'he litibasit's compla.int was disniissed because the judge, wh.o had presided over the litigant's divorce, was now retired, and it was not shonvn that the judge continued to laave any authority or power over the lit.igant's divorce case. In this case. Paul C. Moon is a retired judge from the Ottawa Cotcnty Court of Common Pleas. Pai7l C. 1'v9:oon's attorney re ;istration. status with the Ob.io Suprem.e Court is currez2tly "i.nactive." Inactive attorneys may not practice law in Ohio or hold themselves out as authorized to practice law in Ohio. See, Gov. Bar R. VI, Sec. 2. Paul C. Moon has no authority or power over Relator's criminal case, and therefore, Relator's complaint must be dismissed. Relator failed to comply with R.C This honorable Court has held on multiple occasions that the requirements of R.C are mandatory and that any failure to comply with these requirements merits dismissal I

3 of an inmate's claims. See, e.g., State ex rel. White v. Bechtel (2003), 99 Ohio St.3d 11, 2003 Ohio The Court has also held that strict compliance is required and that substantial compliance with the statute's requirements will not suffice. State ex rel. Manns v. Henson (2008), 11.9 Ohio St.3d 348, 349, 2008 Ohio R.C (A) requires Relator to file "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 must contain a brief description of the nature of the civil action, the case name and number, the court in which the civil action was brought, and the name of each party to the civil action. It must also include the case's outcome including whether it was dismissed as frivolous or malicious and whether the court made an award against the inmate or the inmate's counsel for frivolous conduct. Relator indicates in his affidavit that he sought a writ of habeas corpus relief in the United States District Court for the Northern District of Ohio. As the U.S. Supreme Court stated in Keeney v. Tamcryo-Reyes (1992), 504 U.S. 1, 14, "[t]he availability and scope of habeas corpus have changed over the writ's long history, but oit.e thing has remained constant: Habeas corpus is not an appellate proceeding, but rather an original civil action in a federal court." Further, this C;ourt has held that state habeas corpus proceedings are civil actions. See, Fuqua v. Williams (2003), 100 Ohio St.3d 211, syllabus, 2003 Ohio Relator filed an affidavit regarding previous civil actions, and Relator's affidavit briefly mentions one habeas action. However, the affidavit is deficient in a number of ways. It does not contain the case names or numbers of the habeas action. It fails to include the names of the parties to the action. Finally, there is no statement in the affidavit regarding frivolousness or maliciousness. 2

4 Having failed to comply with R.C (A), Relator's case must be dismissed. In Whate, this Court upheld the dismissal of an inmate's action where the inmate's affidavit relative to previous actions failed to "include a statement as to whether White's previous actions or appeals were dismissed as frivolous or malicious and whether any awards were made against White for frivolous or malicious conduct." Id. at Relator's affidavit suffers from multiple deficiencies. Failing to include the information required by R.C (A) merits dismissal of Relator's current action. Relator has also failed to comply with R.C (C) despite seeking a waiver of filing fees. In seeking such a waiver, Relator had a mandatory duty to provide an affidavit of waiver and indigence which included a statement, certified by the institutional cashier, setting forth the balance in his account for each of the preceding six months. Relator was also required, when seeking waiver of the Court's filing fees, to include a statement setting "forth all other cash and things of value owned by the inmate at that time." Id. Relator has not provided a statement regarding cash or other things of value he may own. Instead, he states, "I have no assets of sufficient value." He makes no mention of what assets he does own, and cash is not rxientioned at all. The statute's requirements are mandatory. This merits dismissal of Relator's action. Further, though Relator provided a certified account statement, it includes balance infoimation for six months preceding August 29, Relator filed his action on September 5, Thus, Relator has failed to indicate his account balance for the required period. In 1Lfanns, this Court upheld dismissal where the inmate failed to indicate a balance for the month previous to the filing of his action. Here, Relator failed to include balances for the week prior to the filing of his action. Dismissal is appropriate under these circunistances. 3

5 Relator has an adeguate remedy at law In seeking the extraordinary writ of mandamus, Relator asserts a sentencing error. I-1e asks this Court to conlpel Respondent to issue an amended sentencing entry. A writ of mandamus is not appropriate under these circumstances. In State ex rel..i^zffal v. Calabrese (2005), 105 Ohio St. 3d 440, 441, 2005 Ohio 2591, this Court, in affirnling the dismissal of a writ of mandamus, recognized, "[m]andamus will not issue if there is a plain and adequate remedy in the ordinary course of law.' Sentencing errors by a court that had proper jurisdiction cannot be remedied by extraordinary writ: '(internal cites omitted.) Here, Relator complains of a sentencing error, specifically that he was sentenced to consecutive prison time for the offenses of Rape and Kidnapping. As this Court has recognized, such. errors cannot be remedied through an extraordinary writ because they can be addressed on appeal and/or through post-conviction relie.f. As Relator has an adequate remedy at law, his request for a writ of mandamus must be dismissed. Conclusion Respondent, retired judge Paul C. Moon, has no authority or power over Relator's criminal case. Relator has failed in multiple ways to satisfy the mandatory requirements of R.C (A) and (C). Relator failed to include the required information for the civil cases he listed, and failed to provide the required information as to his finances. Further, as sentencing errors caruiot be remedied through extraordinary writs, Relator's Complaint for the same must be dismissed. Based on the above cited circumstances and well-settled law, Respondent moves this honorable Court to dismiss Relator's case with Relator to bear the costs of the action. 4

6 State of Ohio County of Ottawa Affidavit of Paul C. Moon I, Paul C. Moon, after being first duly sworn in accordance with the law of the State of Ohio, do state and declare as follows: 1. My Ohio Supreme Court registration number is presided over the Ottawa County Court of Common Pleas from 1991 until have since retired from that position. 4. My Ohio Supreme Court attorney registration status is classified as "inactive." ul //1(- Sworn to and subscribed to me this 20th day of 7September, My commission expires: ^ `" ^ ^^ --^ bl Notary Public KRISTEN D. ^HAFF1N Notary Public, State pf Ohio My Commission Expires

7 Respectfully submitted, MARK E. M:tJLLIGAN PROSECUTING ATTORNEY OTTAWA COUNTY, OITIO Emily M G ber ( ) Assistan r ecutin. tkorney 315 Madison Street, 2"a Floor Port Clinton, Ohio Phone: Fax: prosecutor@co.ottawa.oh.us Attorney for Respondent CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing was sent via regular U.S, mail this, the 20`t' day of September, 2013 to: Thonlas C. Johnson A Allen Correctional Institution Attention C-Unit 2338 North West St. Lima, Ohio Etnily G rber (0 662) Assista t Pr secuting Attorney