GDE G"E.^V ED. 0*q G/^^4 MAR QB 2091 CLERK OF COURT ISUPREME COURT OF OHIO IN THE SUPREME COURT OF OHIO. Case No vs-

Transcription

1 0*q G/^^4 IN THE SUPREME COURT OF OHIO STATE OF OHIO ex rel. ERRICK BOLDEN, RELATOR, Case No vs- THE HONORABLE TIMOTHY MCMONAGLE, RESPONDENT. RESPONDENT'S MOTION TO DISMISS RELATOR, PRO SE ERRICK BOLDEN No C/O Cuyahoga County Jail P.O. Box 56oo Cleveland, Ohio COUNSEL FOR RESPONDENT WILLIAM D. MASON Cuyahoga County Prosecutor BY: James E. Moss (#oo61958) The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio (216) oo GDE G"E.^V ED MAR QB 2091 CLERK OF COURT ISUPREME COURT OF OHIO

2 IN THE SUPREME COURT OF OHIO STATE OF OHIO ex rel. ERRICK BOLDEN, RELATOR, Case No vs- THE HONORABLE TIMOTHY MCMONAGLE, RESPONDENT. RESPONDENT'S MOTION TO DISMISS Now comes William D. Mason, Prosecuting Attorney of Cuyahoga County, Ohio, by and through his undersigned assistant and on behalf of Respondent Judge Timothy McMonagle, and respectfully requests that this Court grant Respondent's Motion To Dismiss Relator's Petition for Writ of Mandamus for the reasons stated in the attached brief. Respectfully submitted, WILLIAM D. MASON Cuyahoga County Prosecuting Attorney AMES E. N1OSS,(oo61958) The Justice Center, Courts Tower 1200 Ontario St., 8th Floor Cleveland, Ohio (216) oo

3 BRIEF IN SUPPORT 1. Relevant Facts. On August 10, 2010, Relator Errick Bolden was indicted in Cuyahoga County Court of Common Pleas case number CR-1o-54o151-A on one count of attempted murder in violation of R.C and R.C (A) with notice of prior conviction in violation of R.C (F)(6) and repeat violent offender specification in violation of R.C (A) (count i), one count of felonious assault in violation of R.C (A)(2) with notice of prior conviction in violation of R.C (F)(6) and repeat violent offender specification in violation of R.C (A) (count 2), and one count of felonious assault in violation of R.C ii(A)(1) with notice of prior conviction in violation of R.C (F)(6) and repeat violent offender specification in violation of R.C (A) (count 3). On December 29, 201o, Relator was found incompetent to stand trial pursuant to R.C (B) and ordered to Northcoast Behavioral Health Care for treatment and restoration to competency. On February 8, 2011, Relator's criminal case was transferred to the mental health docket and transferred to Judge Michael Donnelly for further proceedings according to law. On February 18, 2011, Relator filed a Petition For Writ Of Mandamus ("Petition") in which he claims that his statutory speedy trial rights were violated, that indictment filed against him is defective, and that his right to be present at criminal proceedings pursuant to Crim.R. 43 was violated. 1

4 2. Relator's Petition Is Defective a. Relator Has Failed To Comply With R.C (A) Under R.C (A) an inmatel who commences a civil action against a government entity or employee must file an affidavit that contains a description of each civil action or appeal of a civil action that an inmate has filed in the previous five years in any state or federal court. Relator attached an affidavit to his Petition in which he says he has not filed any civil actions in the last five years. However, Relator's affidavit is not verified as mandated by R.C (A). The failure of Relator to verify his affidavit as required by R.C (A) renders his Petition fatally defective. Griffin v. McFaul, ii6 Ohio St.3d 30, 20o7-Ohio-5506, at 2-4 (court found that relator's petition for writ of habeas corpus was fatally defective since his affidavit of verification under R.C (A) was not notarized). b. Relator has named an improper party On February 8, 2011, Relator's criminal case - Cuyahoga County Court of Common Pleas case number CR-1o-54o151-A - was transferred to Judge Michael Donnelly. Relator filed his Petition against Judge McMonagle with this Court on February 18, As a result, Relator has improperly named Judge Timothy McMonagle as the respondent. As a result, Respondent Judge McMonagle respectfully requests that Relator's Petition be dismissed. 1 Relator listed his address in his Petition as the Cuyahoga County Jail. A person incarcerated in a county jail is considered an inmate as defined under R.C (D) for purposes of Section of the Ohio Revised Code. Turner v. Russo, Cuyahoga App. No , 2oo6-Ohio-449o, at 7; see also Griffin v. McFaul, 116 Ohio St.3d 30, 2oo7-Ohio-55o6 (court denied relator's petition for writ of habeas corpus, in which he was seeking release from county jail, since relator's affidavit under R.C (A) was not notarized)

5 3. Relator's Petition should be denied since he has no clear legal right to the writ. The requisites for mandamus are well established: (r) the relator must have a clear legal right to the requested relief, (2) the respondent must have a clear legal duty to perform the requested relief, and (3) there must be no adequate remedy at law. State ex rel. Ney u. Niehaus (1987), 33 Ohio St.3d 118. In his Petition Relator appears to claim that he is entitled to remedy by way of mandamus because: (r) his statutory speedy trial rights were violated; (2) his indictment was defective; and (3) his right to be present when continuances were granted was violated pursuant to Crim.R. 43. In his Petition Relator claims that his statutory speedy trial rights were violated. However, claims concerning the denial of a right to speedy trial are not cognizable in an extraordinary writ proceeding. State ex rel. Hamilton v. Brunner, 105 Ohio St.3d 304, 2004-Ohio-1735, at 7(petitioner's claim that he was denied his right to speedy trial is not cognizable in an extraordinary-writ proceeding); State ex rel. Jackim v. Ambrose, i18 Ohio St.3d 512, 2oo8-Ohio-3182, at 6 (claim that appellant was denied his right to a speedy trial is not cognizable in an extraordinary-writ proceeding). Relator also claims his indictment is defective. However, a defective indictment claim cannot be raised by extraordinary writ. State ex rel. Bandarapalli v. Gallagher, - Ohio St.3d -, 2o11-Ohio-23o, at 1(slip opinion) (a defective-indictment claim could be raised only by direct challenge in the ordinary course of law rather than in a collateral attack by extraordinary writ). Lastly, Relator appears to claim that his right to be present when continuances were granted was violated pursuant to Crim.R. 43. Relator has not cited any authority that a defense counsel's request for a continuance violates Crim.R 43. In addition, a 3

6 defendant is bound by his counsel's waiver of speedy trial or requests for continuances. State v. McBreen (1978), 54 Ohio St.2d 315, 319, (counsel had the authority to execute waiver of time provisions and appellant is bound by those waivers). Moreover, an extraordinary writ is not available to raise claims concerning violations of Crim.R. 43. Wilson v. Hudson, - Ohio St.3d _, 2o1o-Ohio-4990 (slip opinion) (court affirmed denial of petition for writ of habeas corpus, in which one of appellant's claims was a violation of Crim.R. 43, on the basis habeas corpus is not available to raise appellant's various claims), citing Norris v. Wilson, Richland App. No. 04 CA 44, 2005-Ohio-4594 Therefore, Relator's claims are without merit. Relator has or will anticipatorily have adequate remedies to raise his claims. As a result, he is not entitled to a remedy by way of writ of mandamus. Relator has failed to establish that he has a clear legal right to the requested relief, that Judge McMonagle or any other judge assigned to his case has a clear legal duty to perform the requested relief, and that Relator has no other adequate remedy at law. As a result, Relator is not entitled to relief by way of mandamus. 4. Conclusion. For the foregoing reasons, Respondent Judge McMonagle respectfully requests that this Court grant Respondent's Motion To Dismiss Relator's Petition for Writ of Mandamus. 4

7 Respectfully submitted, WILLIAM D. MASON Cuyahoga County Prosecuting Attorney 'AMES E. MOSS^'o661958) The Justice Center, Courts Tower 1200 Ontario St., 8th Floor Cleveland, Ohio (216) oo (216) o2fax CERTIFICATE OF SERVICE A copy of the foregoing Motion To Dismiss has been sent by ordinary U.S. Mail this 7th day of March, 2011 to Errick Bolden, Pro Se, No , Cuyahoga County Jail, P.O. Box 56oo, Cleveland, Ohio JAMES E.AIOS oo6i958) 5